400 Euclid Inc. v. Toronto (City), 2023 ONTLAB 36

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 211 Toronto, Ontario M4R 1B9

Date:

2023-03-03

22 198648 S45 11 TLAB

400 Euclid Inc. v. Toronto (City), 2023 ONTLAB 36

MOTION DECISION AND ORDER

Issuance Date:

March 3, 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):

400 Euclid Inc.

Applicant(s):

Tony Valentin

Property Address:

400 Euclid Ave

COA File No.:

22 132079 STE 11 MV (A0459/22TEY)

TLAB Case File No.:

22 198648 S45 11 TLAB

Hearing Date(s):

April 18, 2023; April 20, 2023; April 21, 2023

Decision Delivered By:

TLAB Panel Member G. Swinkin

REGISTERED PARTIES AND PARTICIPANTS:

People Type	Name	Representative
Owner	400 Euclid Inc.
Applicant	T. Valentin
Appellant	400 Euclid Inc. C/O T. Valentin	A. Heisey
Party	City of Toronto	D. Elmadany
Party	Palmerston Area Residents Assoc. C/O A. Kirk-Montgomery & P. Maclean	R. Brown
Party	S. Hutchinson	R. Brown & N. Zarin Moore
Expert Witness	C. Flanagan
Expert Witness	T. Karapelevski
Expert Witness	G. Davidson
Expert Witness	M. Tedesco
Expert Witness	C. Chan

INTRODUCTION AND CONTEXT

1. This disposition relates to a Motion brought by the City of Toronto (the “City”) arising out of an appeal by 400 Euclid Inc. (the “Appellant”) relating to the property municipally known as 400 Euclid Avenue (the “Property”).

2. The Property is a semi-detached dwelling which has, without conformity with the governing zoning provisions and without the benefit of building permits, been converted to a rooming house and two storey dwelling unit.

3. The Appellant sought relief with respect to the zoning non-conformities by application to the Committee of Adjustment (the “Committee”).

4. The Appellant’s application was refused.

5. The Appellant appealed that decision to the Toronto Local Appeal Body (the “Tribunal”).

6. At the request of counsel for the Appellant, the Tribunal held a Prehearing Conference, which took place on December 19, 2022, the formal disposition of which issued on January 13, 2023.

7. Although it was not at that stage a Party to the appeal proceeding, counsel for the City appeared at that hearing session to alert the Tribunal to the interest of the City in the matter and to advise that counsel anticipated receiving instruction regarding it out of the City Council meeting scheduled for February 7-9, 2023.

8. In light of that submission, the Tribunal in its disposition directed City counsel that due to the City’s lack of status, they were advised that once their direction was finalized, they would have to bring a motion in accordance with the Tribunal’s Rules with respect to the according of Party or Participant status, if that was to be sought, and whether any witness or documentary evidence was to be filed for use in the proceeding to secure direction for the filing of such material, and further advised that such a Motion should be brought at the earliest opportunity.

9. This Motion, which was filed on February 22, 2023, is the product of City Council dealing with the matter and providing direction to the City Solicitor.

10. Two Responses in connection with the Motion have been filed with the Tribunal, one on behalf of the Appellant in support of the Motion, and the other on behalf of Palmerston Area Residents Association and Shahla Hutchinson opposed to the Motion but providing contingent suggestions in the event that the Tribunal proposes to allow the Motion.

THE REGULATORY AND POLICY FRAMEWORK

11. Rule 17 authorizes the Tribunal to entertain Motions in a proceeding.

12. Rule 12 authorizes the Tribunal to identify Parties to a proceeding.

13. Rule 16 authorizes the Tribunal to make orders with respect to the disclosure of evidence and documents.

14. Rule 2.12 authorizes the Tribunal to grant all necessary exceptions to the Rules, or grant other relief as it considers appropriate, to enable it to effectively and completely adjudicate matters before it in a just, expeditious and cost-effective manner.

SUMMARY OF EVIDENCE

15. The City Notice of Motion seeks the following relief:

a) To be granted Party Status to the TLAB Appeal for 400 Euclid Avenue;

b) To be granted the opportunity to submit Document Disclosure and an Expert Witness Statement within one (1) week of the TLAB Decision and Order on this motion or such time that the TLAB deems appropriate;

c) To grant any other party an opportunity to reply to the City’s Document Disclosure and Expert Witness Statement on such time that the TLAB deems appropriate;

d) To confirm that the amended Applicant's Disclosure on Form 3, filed by the Solicitor for the Appellant on February 10, 2023 will be admitted as the revised variance application and relied upon in the hearing of this matter before the TLAB; and

e) To quash the Summons for Tommy Karapalevski and Caitlyn Flanagan issued on November 9, 2022 by the TLAB.

16. As noted in the Introduction, the Appellant is supportive of the entirety of the City’s Motion.

17. The Response on behalf of the other two Parties to the appeal, Palmerston Area Residents Association and Shahla Hutchinson, opposes the City’s requests on the basis that the City has been unreasonably tardy in coming to this position since it was a commenting party on the original application to the Committee and should have been tracking the status of the matter and become involved in the Tribunal proceeding processes in accordance with the obligations set out in the original Notice of Hearing. They believe that the City will have an unfair advantage by having seen the evidence of the other Parties in advance of filing their own evidentiary material.

18. However, they put forward a contingent position in the event that the Tribunal is inclined to allow the City’s Motion, which contingent position amounts to a timetable for further filings which would tend to ensure a fair opportunity for all Parties to file fresh evidence and fairly respond to such evidence.

ISSUES AND ANALYSIS

19. There is a procedural issue here that emerges from the City Motion material which the City has requested be dealt with and it is very material to what will actually be before the Tribunal in the presently scheduled hearing.

20. Specifically, presumably in response to issues which surfaced during the Prehearing Conference, the Appellant has modified aspects of the proposal, most particularly with the reduction in dwelling rooms from 22 to 19 and by creation of soft landscaping in the front yard.

21. Despite filing an Applicant’s Disclosure with these modified plans on February 10, 2023, the Appellant made no motion seeking permission for late filing of these plans and altered variance requests.

22. It appears from the City’s material that its support of the proposal at this stage is dependent on the modifications to the proposal which are reflected in these new plans.

23. As the Appellant’s Response indicates that it is fully supportive of the City’s Motion, and in the interest of ensuring clarity on the matter, the Tribunal will take that Appellant position to constitute an indirect application for late filing and that the plans filed on February 10, 2023 now constitute the Appellant’s proposal for the Property, which all of the other Parties can treat as the proposal which is being considered by the Tribunal in the hearing. The Appellant is not at liberty to resile from this.

24. The Tribunal is satisfied that the City has a legitimate and serious interest in this appeal and will allow the City’s Motion to be accorded Party status in the proceeding.

25. The Tribunal has considered the document filing suggestions of the Parties and is persuaded that, subject to a minor adjustment to ensure that all filings are complete reasonably in advance of the opening hearing date, those suggestions are reasonable.

26. Consequently, if it wishes to call evidence in the proceeding, the City will have to file and serve upon the Parties and Participants in this proceeding the witness and/or expert witness statements that it intends to rely upon, along with all related document disclosure by no later than 4:30 p.m. on the day which is seven days following the date of issuance of this disposition.

27. All non-City Parties shall be entitled to serve and file Responses to the City witness and/or expert witness statements and the February 10 Appellant disclosure by no later than 4:30 p.m. on the day which is 28 days following the date of issuance of this disposition.

28. All Parties shall be entitled to serve and file a Reply to any Responses which have been served and filed by other Parties by no later than 4:30 p.m. on the day which is 35 days following the date of issuance of this disposition.

29. In the event that any of the foregoing filing and service dates stipulated in the preceding paragraphs fall on a holiday as defined in the Tribunal’s Rules, then the filing and service date shall be the next following day that is not a holiday.

30. Participants shall be entitled to file fresh or supplementary Participant Statements by the date which is no later than 28 days following the date of issuance of this disposition.

31. In light of the advice in the City’s Motion material as to its intention to call Caitlyn Flanagan as a witness and its suggestion that the evidence of Tommy Karapelevski would be duplicative of the filed evidence of Christian Chan, and the Appellant’s support of the City’s request that the issued summonses to these persons be quashed, the Tribunal will accept that acquiescence to the quashing of those summonses.

DECISION AND ORDER

32. The Tribunal ORDERS that the City’s Motion will be allowed in the following regards:

a) The City is granted Party Status in this appeal relating to the Property;

b) The time for the service and filing of further material in this proceeding is as set out in the foregoing body of this Decision;

c) The amended Applicant's Disclosure on Form 3, filed by the Solicitor for the Appellant on February 10, 2023 will be admitted as the revised development proposal and relied upon in the hearing of this matter and;

d) the Summonses directed to Tommy Karapalevski and Caitlyn Flanagan as issued on November 9, 2022 by the Tribunal are quashed.

G. Swinkin

Panel Member