Toronto Local Appeal Body

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

Date:

2023-03-13

22 206686 S45 03 TLAB

Remarkable Building Group v. Kearney, 2023 ONTLAB 40

DECISION AND ORDER

Issuance Date:

March 13, 2023

PROCEEDING COMMENCED Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")

Appellant(s):

Remarkable Building Group

Applicant(s):

Drew Laszlo Architect

Property Address:

196 Lake Shore Drive

COA File No.:

22 168515 WET 03 MV (A0366/22EYK)

TLAB Case File No.:

22 206686 S45 03 TLAB

Hearing Date(s):

March 1, 2023

Decision Delivered By:

TLAB Panel Member G. Swinkin

REGISTERED PARTIES AND PARTICIPANTS:

People Type

Name

Representative

Applicant

Drew Laszlo Architect

Appellant

Remarkable Building Group

A. Stewart

Party (TLAB)

S. P. Kearney

K. Marynick

Expert Witness

P. Doherty-Howe

Expert Witness

F. Romano

Participant

L. Rahkola

Participant

V. Darji

Participant

R. J. Sawdy

Participant

M. Bacchus

Participant

G. Richardson

Participant

S. C. Sawdy

Participant

N. Lutz

Participant

M. Foley

Participant

F. Bruno

Participant

R. Rath

Participant

S. N. Van Kampen

Participant

B. Gardhouse

INTRODUCTION AND CONTEXT

1Remarkable Building Group (the “Appellant”), as owner of the property municipally known as 196 Lake Shore Drive (the “Property”), brought an application to the Committee of Adjustment (the “Committee”) for the purpose of seeking Zoning By-law variance relief in order to construct a new two storey dwelling on the Property in place of the bungalow presently on the Property.

2The relief requested was as follows:

Section 10.80.40.40.(1)(A), By-law 569-2013 The maximum permitted floor space index is 0.6 times the area of the lot (170.5 m²). The proposed dwelling will have a floor space index of 0.79 times the area of the lot (225.02 m²);

Section 900.6.10.(23)(D)(iii), By-law 569-2013 The minimum required side yard setback is 1.5 m. The proposed dwelling will be located 1.22 m from the east side lot line; and

Section 10.5.60.20.(6)(B), By-law 569-2013 The minimum required side yard setback for an ancillary building or structure is 6 m. The proposed detached garage will be located 1.57 m from the east side lot line.

3The Committee refused the application.

4The Appellant then filed an appeal to the Toronto Local Appeal Body (the “Tribunal”).

5The Tribunal issued a Notice of Hearing which identified the date of the hearing and stipulated dates by which actions were to be taken in the proceeding with respect to filing elections to be a Party or Participant and with respect to the filing of witness statements and documentary disclosure.

6The hearing of the appeal was scheduled for March 1, 2023.

7Witness statements and expert witness statements were to be filed and served by January 23, 2023, with any Responses to those statements to be filed and served by February 6, 2023.

8On February 23, 2023, counsel for the Appellant communicated by email with the Tribunal and the persons who were then shown as Parties and Participants her intention to bring a Motion at the commencement of the March 1st hearing session for the following purposes:

a. Permitting the filing of an Expert Witness Statement of Franco Romano, MCIP, RPP, submitted to the TLAB, the parties, and participants on February 20, 2023;

b. Converting the hearing scheduled for March 1, 2023 to a prehearing conference to address procedural matters, including any deadlines for the submission of reply materials; and

c. Scheduling a three day hearing on consecutive or proximate dates for the completion of the hearing on the merits

9The only other Party to this appeal, Susan Kearney (elevated by prior Order of the Tribunal from Participant status to Party status), by her counsel filed a responding Motion on February 27, 2023 opposing the Appellant’s Motion in its entirety and seeking an Order of costs against the Appellant.

10The hearing convened on March 1, 2023 and submissions on the Motions were heard.

THE REGULATORY AND POLICY FRAMEWORK - THE RULES OF PRACTICE AND PROCEDURE OF THE TRIBUNAL

11Rule 2.13 - Where a Party or a Participant to a Proceeding has not complied with a requirement of these Rules or a procedural order, the Tribunal may grant all necessary relief, including amending or granting relief from any procedural order on such conditions as the Tribunal considers appropriate.

12Rule 2.2 - These Rules shall be liberally interpreted to secure the just, most expeditious and cost-effective determination of every Proceeding on its merits.

13Rule 23.3 - In deciding whether or not to grant a Motion for an adjournment, the Tribunal may consider, among other things, the reasons for the adjournment, the interests of the Parties in having a full and fair hearing, the integrity of the Tribunal’s process, the timeliness of the adjournment request, the position of the other Parties on the request and whether an adjournment will cause or contribute to any existing or potential harm or prejudice to others, including possible expense to other Parties.

SUMMARY OF EVIDENCE

14Ms Stewart, in her Motion material and oral submissions firmly rested the origin of the present requests on a failure of the principal of the Appellant, Tom Baskerville, to have received the Notice of Hearing. Despite not having the Notice, he presumed that one would arrive and he took steps to contact Ms. Stewart for the purpose of retaining her services. It was at this juncture that certain steps were taken.

15Ms. Stewart was retained on January 25, 2023. Ms. Stewart filed a Form 5, Authorized Representative Form, with the Tribunal that day. The Appellant retained Mr. Franco Romano, MCIP, RPP, on January 26, 2023, to provide land use planning services in the appeal proceeding.

16On January 26, 2023, Ms. Stewart wrote to the identified parties and participants to advise that she had been retained. She also advised that an Expert Witness Statement was in process of being prepared, and that it would be filed as soon as possible. Ms. Stewart also indicated the Appellant’s intention to bring this motion, and requested an estimate of time for each party or participant to complete their evidence at the hearing. She apparently received no response to that request.

17On February 20, 2023, Mr. Romano finalized his Expert Witness Statement and it was submitted to the Parties, Participants, and the Tribunal by email on February 20, 2023. Ms. Stewart advised that Mr. Romano did not review the materials filed by others in preparing his Expert Witness Statement.

18Mr. Romano was present at this hearing session and in response to questioning by the panel, he confirmed the foregoing engagement date and that he worked on the matter without delay.

19Ms. Stewart assured the Tribunal that the failure to meet the filing requirements set out in the Notice of Hearing was not in any way deliberate or meant to be to the prejudice of any other person involved in the hearing. In addition to the delays arising from the failure of her client to understand the filing requirements and to have acted on a more timely basis, Ms. Stewart alluded as well to certain personal background matters that had an impact on dealing with this file.

20The Tribunal has no basis on the record to doubt the good faith of the Appellant and its representatives in this proceeding. The panel observed that the Appellant wishes a hearing of this appeal on a basis which is fair and to take place as reasonably soon as possible.

21Mr. Marynick was advancing an argument that his client and the others in the community are being prejudiced by a delay in commencing the hearing but the panel could not see the merit in that argument as their preparation was necessary in any event and was complete even before Ms. Stewart was retained. That work will not go to waste.

22Without providing any details, both counsel referred to past and prospective discussions with a view to exploring settlement of the appeal.

ISSUES AND ANALYSIS

23It is clear to the Tribunal that the Parties remain engaged to this appeal and wish to ensure that a protocol is established which will result in a fair opportunity for each Party to call its case.

24It is the Tribunal’s objective that a hearing take place on this appeal and that procedures are fixed which will ensure that each Party has a right to present its evidence, respond to the evidence of the other Party and reply as necessary.

25Ms. Stewart was clear that the Appellant presently has no intention of modifying its building proposal and that therefore, there was no Applicant Disclosure expected. However, as she expressly kept open a desire to explore settlement, she did acknowledge that if there was a settlement which involved physical change to the building proposal and if this settlement was formally committed, there may be an Applicant Disclosure to reflect any change in plans.

26Leaving open the prospect of settlement, the Tribunal will encourage the Parties to pursue that and endeavour to conclude any such discussions in one month’s time.

27Although he does not on the record represent any of the presently registered Participants, Mr. Marynick expressed a view that if settlement was achieved between the Parties, he did not anticipate opposition from any Participant.

CONCLUSION

28If a settlement is achieved the Parties are to contact Tribunal staff to schedule a Settlement Hearing date for this appeal.

29If a settlement is not achieved, counsel are to contact Tribunal staff with available dates for a hearing to be scheduled no earlier than in mid-May, 2023, the hearing to be scheduled for a further two or three days as counsel then recommend.

30The following filing considerations shall be factored into the establishment of the hearing date. The presently filed expert witness statements shall stand as filed (being the Expert Witness Statements of Ms. Doherty-Howe and Mr. Romano). However, each Party’s expert witness shall be entitled to serve and file a Responding Witness Statement by a date which is 28 days prior to the date fixed for the continuation of this hearing. A Reply to a Responding Witness Statement may be served and filed 10 days following the date fixed for the filing and service of the Responding Witness Statement.

31The Tribunal treats the costs Motion brought by Susan Kearney to be premature and will dismiss it at this stage without prejudice to bring a fresh costs Motion at the conclusion of the proceeding if she considers it warranted at that time.

DECISION AND ORDER

32The Tribunal ORDERS that this hearing is adjourned to a date to be fixed in accordance with the directions set forth in the Conclusion paragraphs above and with the further evidentiary service and filing requirements as set forth in those paragraphs.

G. Swinkin

Panel Member