Toronto Local Appeal Body
40 Orchard View Blvd, Suite 211 Toronto, Ontario M4R 1B9
21 231436 S45 08 TLAB
1152030 Ontario Inc v. Toronto (City), 2023 ONTLAB 21
FINAL DECISION AND ORDER
Issuance Date: February 23, 2023
PROCEEDING COMMENCED UNDER Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")
Appellant(s): 1152030 ONTARIO INC
Applicant(s): NELSON ESPINOLA
Property Address: 10 STAYNER AVENUE
COA File No.: 21 201080 NNY 08 MV (A0581/21NY)
TLAB Case File No.: 2021 231436 S45 08 TLAB
Deadline Date for Closing Submissions/Undertakings: February 12, 2023
Decision Delivered By: TLAB Panel Member S. Gopikrishna
REGISTERED PARTIES AND PARTICIPANTS:
| People Type | Name | Representative |
|---|---|---|
| Applicant | N. Espinola | A. Stewart |
| Party | City of Toronto | C. Dougherty |
| Participant | M. Smith | |
| Participant | C. Sera | |
| Expert Witness | J. Benczkowski | |
| Expert Witness | J. Xie |
INTRODUCTION AND CONTEXT
1Salvatore Vescio ( the "Applicant", the "Appellant") is the owner of 10 Stayner Avenue ( the "Site"), located in Ward 08 (Eglinton-Lawrence) of the City of Toronto. In order to maintain a number of additions he had made to the existing house, including an accessory structure in his rear yard, and a secondary suite in the basement, Mr. Vescio applied for the approval of various variances to the Committee of Adjustment (COA), which heard the Application on October 7, 2021, and refused the Application in its entirety. It may be noted that Mr. Vescio completed all of the aforementioned additions, before applying to the COA for the approval of the corresponding variances.
2On October 27, 2021, the Applicant appealed the COA's decision to the Toronto Local Appeal Body (TLAB). The Notice of Hearing issued by the TLAB, on December 20, 2021, stated that the Parties had to file their Witness Statements by February 18, 2022. The City of Toronto elected to be a Party on January 17, 2022, and filed its Expert Witness Statement on February 18, 2022. However, the Applicant did not file a Witness Statement, or any other documentation, by the deadline of February 18, 2022. The TLAB scheduled a Hearing for March 28, 2022.
3At the Hearing conducted on March 28, 2022, the Applicants apologized for their not submitting a Witness Statement as required, and requested for extra time to obtain a Zoning Notice, which would be the basis of updated variances, and the Witness Statement. The City complained about the lack of submissions by the Applicants, and suggested that the Appeal should be dismissed without a Hearing, since the Applicants had not made any progress in prosecuting their Appeal.
4On May 26, 2022, I issued an Interim Decision which stated that while I understood the City of Toronto's frustration, it was not possible to proceed and dismiss the Appeal without a Hearing, because a formal Motion to Dismiss had not been filed in advance, which prevented the Appellant from coming forward, fully prepared to explain their disagreement with the City's suggestion. I also expressed my concern at the lack of progress, or communication from the Applicants, and convened a Hearing, scheduled for June 2, 2022.
5After the Hearing of June 2, 2022, I advised the Applicants to update the Plans and Elevations as soon as possible, and have a discussion amongst themselves to see if their differences could be settled. I also provided them with a deadline of August 12, 2022 and explained to the Applicants that should they not settle by this date, they were required to bring forward a Motion to admit new Plans and Elevations for the proposal respecting 10 Stayner Avenue. I also stated that in the absence of a Motion from the Appellants, the Proceeding would be completed on the basis of the Plans and Elevations relied upon by the Committee of Adjustment, when it considered the Application on October 7, 2021.
6There was no response nor communication from the Applicants from the time of the completion of the Hearing completed on June 2, 2022 to the end of September 2022, notwithstanding my aforementioned instructions to the Appellants. As a result of the lack of communication from the Applicants, I thought it appropriate to convene a Hearing on November 23, 2022.
7On November 18, 2022, I was made aware that the City had brought forward a Motion, dated November 13, 2022, asking for the Appeal respecting 10 Stayner to be dismissed without a Hearing. On November 22, 2022, the TLAB forwarded the email from the Appellants stating that an updated Zoning Notice had been received and reviewed, which would be spoken to at the Hearing scheduled for November 23, 2022.
8At the Hearing held on November 23, 2022, Mr. Dougherty expanded on his Motion to dismiss the Appeal without a Hearing, while Ms. Stewart spoke in opposition to the Motion, and argued why the Matter must proceeding to a Hearing on its planning merits. She asked for extra time to review the updated Zoning Notice, update the Plans and Elevations, and see if a Settlement could be reached with the City.
9During the course of this Hearing, Ms. Stewart pointed out that if the Appeal were to be dismissed without a Hearing, then there would be no relief for the neighbours living next to the Site, who would continue to experience negative impacts from the building, as it existed. She explained the complexities of how long it could take for the City's Enforcement Section to address the resulting situation. In his Reply, Mr. Dougherty provided a different account of how the Enforcement Section would intervene to address the situation of a structure built without adequate permission, and provided the TLAB with a starkly different timeline for intervention, when compared to Ms. Stewart's submissions.
10After Mr. Dougherty completed his Reply, I advised the Parties that I would give them time until the end of day on December 9, 2022, to have a discussion amongst themselves, to see if any mutually agreeable decision could be arrived at regarding the new plans, for which a Zoning Notice had been received on November 21, 2022, as a result of which the Motion to dismiss, would be amended, or updated, as needed.
11I directed Mr. Dougherty to write to the City by December 12, 2022, to provide an update, with specific reference to any possible changes to the aforementioned Motion. I made it clear to Mr. Dougherty that there was no advice, much less direction from the TLAB to consider making any changes to the Motion, and that any decision regarding changes or updates that he wished to make to the Motion needs to reflect the City's interests, advice from the City's planner, and the public interest.
12On December 12, 2022, the TLAB received an email from Ms. Amber Stewart, Counsel for the Applicants, requesting for extra time till December 23, 2022, to complete their discussions. Mr. Dougherty, Counsel for the City, responded to the email, on the same day by stating "The City consents to the indulgence requested by the Applicant, should the TLAB be prepared to grant it."
13In response to the above request, I granted the Parties time until January 10, 2023, to complete their discussions, and inform the TLAB if their perspectives had converged or changed in any fashion, resulting in a possible withdrawal of the Motion to dismiss. The alternative, in case no Settlement had been reached, would be for the TLAB to make the finding on the City's Motion to dismiss the case without a Hearing.
14On January 12, 2022, the TLAB received one more email from Ms. Amber Stewart listing challenges in obtaining the Zoning Notice, and requested time till February 11, 2023, to complete the negotiations.
15Mr. Dougherty, Counsel for the City, confirmed their agreement with the above request from the Applicant, through his email dated January 11, 2023, the relevant portion of which is recited below:
"The City understands that the Applicant, as of yet, has not been able to resolve/clarify certain matters with the zoning examiner. As such, the City consents to this final extension request, and urges the Applicant to proceed forthwith. I have been clear with Ms. Stewart that the City will not be willing to accept further delays after this point, as it is already more than two months since the Motion to Dismiss was heard".
16Given that the Parties were in agreement about extending the timeline for resolution of differences by February 11, 2023, I ruled that an extension would be granted to the Parties until February 11, 2023, and specifically asked them to update the TLAB if there was a change in their position as of February 11, 2023.
17In the interests of clarity and fulsomeness, the Interim Decision and Order passed on January 17, 2023, is recited below:
The request by the Applicants, for extra time until February 11, 2023, to obtain clarifications from the Zoning Examiner, and engage in discussions with the City of Toronto, is approved.
The Applicants are directed to update the TLAB by the end of day on February 12, 2023, about whether the Appeal respecting 10 Stayner, will be heard by way of a Contested Proceeding, or a Settlement. The City of Toronto has to be copied on all communication with the TLAB.
The City is directed to update the TLAB by February 12, 2023, about any changes, or updates they want to make to the Motion presently before the TLAB, which seeks to dismiss the Appeal respecting 10 Stayner, without a Hearing on its merits. The City is herewith directed to communicate with the TLAB about its position regarding this Motion, even if there are no changes. The Applicants have to be copied on all communication with the TLAB
18On February 13, 2023, the TLAB received communication from Mr. Dougherty, , where he requested the TLAB to proceed, and issue a Decision regarding his Motion for Dismissal of the Appeal without a Hearing, because no follow up meeting had taken place between the Parties "despite the Applicant's representations, and the City's best intentions". Mr. Dougherty also stated that he would not make any new submissions, "as the Motion Record is already complete with the original Motion, Response and Reply, in addition to the submissions made at the November 23 Hearing Event".
ISSUES AND ANALYSIS
19In light of the email from the City dated February 13, 2023, and the absence of new submissions from the Applicants, I will rely on the following documents to come to a DecisionL
- Motion material put forward by the City of Toronto in support of its Motion to dismiss the Application without a Hearing, submitted to the TLAB on November 13, 2022,
- Email/Response received from the Applicants on November 22, 2023, and
- Arguments put forward by the Parties in support of their Positions at the Hearing completed on November 23, 2022.
20I am struck by the lack of any meaningful progress made by the Applicants from the time they appealed the COA's decision to the TLAB in November 2021, to the time this Decision is being issued in February 2023, separated by a sizable sixteen month gap. Notwithstanding my granting numerous adjournments, and facilitating three different Hearings, I find that there has been no meaningful updates to the Plans and Elevations, on the basis of which the Appeal will be heard- the lack of progress is best captured in the City of Toronto's factum, dated November 13, 2022:
As of the date of filing of this Motion, the Appellant and the City have not achieved a settlement, the Appellant has not brought a Motion to introduce revised plans, nor submitted a witness statement to advance their case. As such, this matter has not progressed in any meaningful way since the submission of the City's witness statement on February 18, 2022, despite the passing of months and two scheduled Hearing Events.
I am in agreement with the City's observations above, and take this opportunity to emphasize that not only did the Applicants not respond in a timely fashion throughout this Proceeding, they missed each and every deadline laid out by the TLAB. I understand that it often took multiple emails from the TLAB to obtain a list of dates on which the Applicants were able to proceed with the next Hearing. The lack of any meaningful action on this File by the Applicants, with specific reference to Updated Plans and Elevations, and Witness Statements, certainly points me in the direction of dismissing the Appeal without a Hearing.
21In the absence of any meaningful submissions as discussed above, I concur with the following conclusions put forward by the City:
On a motion to dismiss, the TLAB must assess whether the reasons for appeal are defensible. The state of readiness of the Appellant demonstrates that that is not the case
Appellant has not established a land use planning case upon which the Tribunal could allow all or part of the appeal
22At the Hearing held on November 24, 2022, the City presented a comprehensive case in support of its Motion to dismiss the Appeal without a Hearing. The Response from the Applicants dwelt on the possible consequences of dismissing the Appeal without a Hearing, which included the possibility of the neighbours living in the vicinity of the Site having to endure the negative consequences of the building at the Site, as it exists now. I understood the Applicant's argument to mean that dismissing this Appeal without a Hearing, will result in prolonging the present plight of the neighbours.
23In my Decision respecting 100 Brenda Crescent, I addressed similar arguments from its applicants about the possible consequences of not approving the requested severance of the lot in question, and variances to build a detached house on each of the resulting lots. During the course of hearing that Appeal, I was informed that should the severance not be granted, the applicant could duplicate an existing humungous mansion on a neighbouring street- images of the house in question, interspersed with commentary from the applicant left no doubt in my mind that the existence of two humungous buildings would have a negative impact on the community in question. Addressing the option of the Applicant's ability to react to the rejection of their proposal through resorting to a deliberately negative action, I wrote:
I also find that no weight may be given to the leitmotif of the mansion built at 85 Cleta, which I understand to be the possible consequence of what could happen at the Subject Site, if a consent to sever the property is denied. The construction of a house, however humungous, or even hideous, is a mere hypothetical, which is of no consequence to the actuality of the application before me. The mandate of the TLAB is restricted to the application before it, as submitted, to the exclusion of everything else. Consequently, I find that besting the boogeyman of a building that is yet to be built, is not the best of battles for me to be involved with.
24I will follow the same reasoning as what is recited above, by not taking into consideration of the consequences of the refusal of the Application. While the existing and future contexts of a community are important, and have to be considered by the TLAB for decision making purposes, I find that the future context precludes probabilistic occurrences, irrespective of how positive, or pessimistic they may be. Decision making has to rely on reality and reliable information, as opposed to the phantoms of presuppositions, or apparitions caused by assumptions. For decision making purposes, the TLAB will not take into account, how the Applicants, or the Opposition may react, should they not be granted what they requested of this Tribunal.
25As a result of the analysis presented in this Section, I find that the Appeal respecting 10 Stayner may be dismissed without an Oral Hearing. The decision made by the Committee of Adjustment on October 7, 2021, respecting 10 Stayner, is herewith confirmed.
FINAL DECISION AND ORDER
26The Appeal respecting 10 Stayner is dismissed without an Oral Hearing. The decision of the Committee of Adjustment respecting 10 Stayner, made on October 7, 2021, is herewith confirmed.
So orders the Toronto Local Appeal Body
S.Gopikrishna Panel Member