Toronto Local Appeal Body

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

Date:

2023-03-13

22 222332 S45 02 TLAB

Romano v. Toronto (City), 2023 ONTLAB 41

INTERIM DECISION AND ORDER WITH INSTRUCTIONS

Issuance Date:

March 13, 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):

B. Romano

Applicant(s):

2LS Design Inc

Property Address:

102 Shaver Ave. N

COA File No.:

21 106908 WET 02 MV (A0040/21EYK)

TLAB Case File No.:

22 222332 S45 02 TLAB

Hearing Date(s):

February 21, 2023

Decision Delivered By:

TLAB Panel Member Gopikrishna

Registered Parties:

Owner

C. Romano

Primary Owner/Appellant

B. Romano

Applicant

2LS Design INC.

Party’s Legal Rep

A. Ward (City of Toronto)

Party

J. Muc

Party

J. R. Mackay

Party

T. Gomez

Party

C M Poulo

Party

T. Farina

Party

I. Cunha

Party

G. Pennington

Party

R. Cholewski

Party

M. Ye

Party

Planning & Administrative Tribunal

Party

City of Toronto

Participant

B. D Isard

Participant

D. B Wade

Participant

W. Van Slyke

Participant

S. Slezak Kawa

Participant

K. D Luckevich

Participant

K. M Stafford

Participant

Z. Kawa

Witness

Bram Bulger

INTRODUCTION AND CONTEXT

1Bernie Romano is the owner of 102 Shaver Rd North (the "Site", the "Property"), located in Ward 02 (Etobicoke Centre) of the City of Toronto. In order to construct a detached dwelling, with an attached garage, at the Site, he applied for the approval of various variances to the Committee of Adjustment ( the "COA"), which heard the Application on October 13, 2022, and refused the Application in its entirety.

2Mr. Romano appealed the COA’s decision to the Toronto Local Appeal Body (the "TLAB") on October 27, 2022, which set a Hearing date of February 21, 2023. The City of Toronto, and a number of Community Members, elected for Party status, while other community Members elected for Participant status. The Community Members are collectively referred to as the "Opposition" in this Decision.

3At the Hearing held on February 21, 2023, Mr. Romano represented himself, and stated that Mr. Cameron O’Neill would be providing evidence on his behalf, while the City of Toronto was represented by Mr. Adam Ward, a lawyer, and Mr. Bram Bulger, a land use planner. The Opposition was represented by Mr. Richard Cholewski and Mr. Christopher Poulo, both of whom elected to be Parties, as well as Mr. Brian Isard, who elected to be a Participant.

4Mr. Ward stated that the City of Toronto had reached a Settlement with the Applicant, and would not be presenting any evidence, and said that he would make a submission with recommendations for conditions to be imposed, if the Application were approved, before reciting the conditions. By way of an editorial comment, the conditions recommended by the City are not recited here, because I find that they would be better contextualized, and understood, when the evidence is recited by way of the Final Decision.

5I stated to the Parties that I had visited the Site, and had reviewed the submissions made by the Parties, with specific reference to the Witness Statements. I specifically spoke to my lack of satisfaction with the Witness Statements submitted by all the Parties, and how they did not provide the central kernel of information that is expected by way of an Witness Statement, which can then be expanded upon by way of evidence at the Hearing.

6To illustrate the inadequacy of the Witness Statement, I discussed the Applicant’s Witness Statement, which focused solely on how exemplars of similar variances to what they were requesting, had been approved in the neighbourhood. I pointed out to them that merely citing exemplars from the neighbourhood on the basis of COA decisions, which not illustrate any planning principles important to the TLAB. I drew their attention to one specific comment in their COA summary, where the Applicants highlighted that a neighbour, whose application for variances comparable to what they were requesting, had been approved by the COA, had written letters opposing the Application at the Site. I informed the Parties that even if it could be demonstrated that there was a double standard in the individual’s conduct, nothing was demonstrated in terms of planning principles. I drew the Applicant’s attention to the four tests under Section 45.1 of the Planning Act, and how the onus of demonstrating that the requested variances satisfy the four tests lay solely with the Applicants.

7I then drew the attention of the Opposition to their Witness Statements, and how many of them repeated each other’s objections, and issues. I explained to them that TLAB Hearings are not a popularity contest, and how repetition of the same issue by multiple individuals, did not strengthen the strength of their objection, with reference to planning rationale. I also pointed that a leitmotif in their submissions was how they (members of the Opposition) had rigorously followed Zoning By-Laws when they enlarged their residences, followed by their posing what seemed to me, a philosophical question about why the Applicant could not do the same.

8I explained to the Parties that I wanted to adjourn the Hearing, because I did not have any understanding of the planning rationale both for, and against the proposal.

9I encouraged the Parties to resubmit their Witness Statements, and asked them how much time was needed to resubmit their Statements. Notwithstanding the enthusiasm shown by some of the Parties when stating that they could submit a Statement "by the afternoon", I cautioned the Parties to take "a few weeks if necessary", so that they could come back with a more "thoughtful" statement, where their planning rationale was crystal-clear. After some discussion, it was agreed that a period of "four weeks", from the date of the Hearing would be adequate in terms of submitting Witness Statements to the TLAB.

10I explained to the Opposition to the proposal that if they had common or similar objections, they should proactively examine the option of finding two or three spokespersons, who could then discuss the common concerns by way of evidence at the Hearing. The neighbours asked for my advice regarding the following questions, which are listed below:

• Could they find a Planner to represent them?

• What documentation had to be filed by the Planner?

• What was the difference between an Expert Witness, and a Witness ( i.e. somebody who is not an Expert).

The answers to these questions appear in the "Issues and Analysis" Section of this Decision

11When I proposed that we could let the Applicants present the design, before adjourning for the day, Mr. Ward asked if the Applicants’ Witness would be recognized as an Expert Witness. I replied to the question by saying that I did not have Mr. O’Neill’s CV before me because it had not been submitted by the Applicants Given that Mr. O’Neill had not signed an Expert Witness’ Form, and his CV was not before the Parties, it was not possible to recognize him as an Expert based on such information that was available to me. I then made a decision to let the Applicants have a discussion amongst themselves to see if they wanted Mr. O’Neill to be recognized as a Witness, and submit the requisite documentation accordingly.

12The Opposition asked if they could have access to the Settlement reached by the Applicants and the City of Toronto. After Mr. Ward stated that a copy of the Settlement had already been filed with the TLAB, I informed him that I could not find a copy of the Settlement on the TLAB website, and instructed both Mr. Ward, and Mr. Romano to file a copy of the Settlement again with the TLAB, and copy all Parties in the communication. When the Opposition asked for help with interpreting the Settlement, and the Plans and Elevations, I asked them to contact Mr. Romano, and request him to help explain the Plans and Elevations, and encouraged Mr. Romano to help the Opposition understand the updated Plans and Elevations resulting from the Settlement.

13As a result of the aforementioned decision (discussed in Paragraph [11] above) to let Mr. O’Neill give evidence only after the Applicants submitted all the requisite paperwork, I made the decision to adjourn the Hearing without swearing in any of the Witnesses, and stated that the TLAB would canvass Hearing dates for April 2023 by sending out emails. I reminded the Parties of the deadline of four weeks from the day of the Hearing, the importance of submitting Statements which focused on planning issues, and writing to the TLAB to seek clarification, where necessary.

ISSUES AND ANALYSIS

This Section provides answers to the questions raised by the Parties at the Hearing, as well as provides general advice about what may be expected at the Hearing to be held to complete this Proceeding.

14It is important that a Witness Statement provide an outline of how the requested variances satisfy the four tests under Section 45.1 of the Planning Act, which are recited below for the convenience of the Parties.

The tests are whether the variances:

• Maintain the general intent and purpose of the Official Plan;

• Maintain the general intent and purpose of the Zoning By-laws;

• Are desirable for the appropriate development or use of the land; and

• Are minor.

The Witness Statement can then be expanded upon by way of evidence at the Hearing.

15It is important that Parties and Participants who have elected to give evidence have an option to be "sworn" in (where the Witness states that "they will state the truth, the whole truth, and nothing but the truth" with reference to a religious text ( my emphasis)) or be "affirmed" ( where the Witness states that "they will state the truth, the whole truth, and nothing but the truth"", without reference to a religious text), before they begin to give evidence. Since the Hearings are being conducted electronically, Witnesses who want to be sworn in, need to bring their preferred religious text to the Hearing, and have it handily available in order to be sworn in.

16Hearings before the TLAB are de novo, which means that it is a "new Hearing" which means that it pays no attention whatsoever to what happened at the COA Hearing- the concept of "de novo" is probably best understood by assuming that the hearing before the COA did not take place. As a result, the TLAB will not consider the complaints from the Parties with reference to alleged errors at the COA Hearings, or alleged errors made by the COA panel in reaching their decision.

17Parties may note that the findings of the TLAB focus entirely on the planning merit (or lack thereof) based on the evidence of the Parties with respect to the four tests recited in Paragraph [14] above, as opposed to how many other variance applications in the neighbourhood have been approved. I find that Parties drawing attention to other exemplars from the community, and drawing parallels to their proposal with what was approved in the neighbourhood, make an argument analogous to what is good for the goose is good for the gander. While such reasoning may be helpful, they need to demonstrate that their proposal, and the exemplar referred to have a goose and gander relationship in the first place for the reasoning of "what is good for the goose is good for the gander" to apply.

18A Party suggesting that an Application should not be approved because it did not follow the By-Laws is given little weight, because the very mandate of the COA and the TLAB, is to provide relief from the By-Laws, where the proposal satisfies the tests under Section 45.1 of the Act. The issue of contrasting the behaviour of the Applicant, with another individual’s ability to strictly adhere to the Planning By-Law, is excluded from the decision making process, because the TLAB does not examine the Applicant’s ability, nor proclivity to strictly follow the By-Laws, because as stated earlier, the very purpose of the TLAB, is to look at planning merit, and grant relief from the By-Laws, where appropriate.

Parties may also be informed that there is no test of credibility, nor character in decisions made by the TLAB.

19The questions raised by the Opposition are answered in the TLAB’s "Rules of Practice and Procedure" ( the "Rules"), which may be found online at:

https://www.toronto.ca/wp-content/uploads/2023/02/8de0-Toronto-Local-Appeal-BodyRules-of-Practice-and-ProcedureUpdated-December-16-2022.pdf

The answer to the question of representation raised by the Opposition can be found in Section 14 of the Rules:

14. REPRESENTATIVES

Parties and Participants may be Represented

14.1 A Party or Participant may be represented by a Representative. Representatives must confirm authorization to act for a Party or Participant by either indicating on Form 1 that he or she is duly authorized, or by Filing a Form 5. If authorization changes, the Party, Participant or newly authorized Representative shall immediately notify the TLAB and all other Parties of such changes in representation by Serving and Filing a Form 5.

14.2 Where a Party or Participant has a Representative all communications shall be through the Representative.

Representatives Permitted to call Witnesses

14.3 A Representative may call witnesses and give evidence in accordance with the Rules. Representative may not be an Expert in same Proceeding

Representative may not be an Expert in same Proceeding

14.4 An expert witness cannot be a Representative in the same Proceeding.

In terms of specific questions raised by the Opposition, they can retain a Planner who needs to submit a Witness Statement, a Curriculum Vita (CV), and a completed Form 5, by the deadline, which is provided in Paragraph 20 below. It is also important that the Parties looking to retain an Expert Witness read, understand and follow Rule 16.8 of the Rules, recited below

Expert Witness Statement

16.8 Parties shall Serve an Expert Witness Statement on all Parties and File same with the TLAB, using Form 14, not later than 60 Days after a Notice of Hearing is Served.

I herewith draw the attention of the Parties that Form 14 advises that Form 6

( Acknowledgement of Experts Duty) also be filed by the Parties. In particular, it is important that the Parties pay close attention to Part 4 of Form 6, which discusses the duties of an Expert Witness

I have been engaged by or on behalf of the above noted party/parties to provide evidence in relation to the above-noted TLAB proceeding.

I acknowledge it is my duty to provide evidence in relation to this proceeding as follows:

a. to provide opinion evidence that is fair, objective and non-partisan;

b. to provide opinion evidence that is related only to matters that are within my area of expertise; and

c. to provide such additional assistance as the TLAB may reasonably require to determine a matter in issue.

I acknowledge that the duty referred to above prevails over any obligation which I may owe to any party by whom or on whose behalf I am engaged

To summarize, Parties looking to retain an Expert Witness should ensure that Forms or 5, are completed, in addition to a mandatory completion of Forms 6 and 14. It is important the Expert Witness’ C.V. be submitted alongside the completed forms, for reasons discussed in the next paragraph.

20Submission of the Expert’s Curriculum Vitae (CV) helps both the opposing Parties and Adjudicator examine the education qualifications, professional qualifications and experiences of the witness in question, and understand why they should be qualified as an expert witness. The Parties have the ability to question Witnesses on their record, where appropriate, and make submissions to the Adjudicator, about whether or not the Witness can be qualified as an Expert Witness. The Adjudicator will make a decision about the recognition of the witness as an expert, before ( my emphasis) the witness begins to give evidence.

The Parties are encouraged to carefully read the TLAB’s Rules, for which the reference is provided in Paragraph [18] above, should they have questions regarding procedural issues. The TLAB may be contacted by the Parties with questions, solely with questions regarding procedure, should they not find the answer to their question in the Rules.

21The deadline for the submission of all documents, including updated Witness Statements, Authorized Representatives, Acknowledgement of Expert’s Duty, and other documents that will be relied upon for evidentiary purposes is April 3, 2023. Responding Witness Statements may be filed by April 10, 2023, while a Reply to a Responding Witness Statement, may be filed by April 14, 2023.

22The TLAB will separately contact Parties by way of email to ask for their availability to complete the Hearing. Parties are also requested to identify dates in late April 2023, or early May 2023 ( April 16, 2023- May 12, 2023) on which they will be available to participate in the Hearing. While it would be reasonable to assume that this Proceeding can be completed within one (1) day, Parties may advise the TLAB of the need for extra Hearing days when the TLAB contacts them to canvass their availability.

23I herewith remind the City of Toronto and the Applicants to file a Copy of the Settlement reached between themselves, with a copy of the updated Plans and Elevations with the TLAB, and copy all other Parties on this communication. Should the Opposition need help with understanding the Settlement, and/or the Plans and Elevations, they are encouraged to reach out to the Applicants, who in turn are encouraged to explain the Settlement, and the Plans/Elevations to the Opposition.

INTERIM DECISION AND ORDER

24The deadline for the submission of Witness Statements, Authorized Representatives, Acknowledgement of Expert’s Duty, and other documents that will be relied upon for evidentiary purposes is April 3, 2023. Responding Witness Statements may be filed by April 10, 2023, while a Reply to a Responding Witness Statement, may be filed by April 14, 2023.

25The TLAB Staff will contact the Parties by way of email to enquire about their availability between April 16, 2023 and May 12, 2023. A Hearing Notice will be issued for a one (1) day Hearing based on the availability of the Parties, and the TLAB. The Parties are advised to inform the TLAB of the need for an extra Hearing day , if they deem it necessary, when responding to the email about their availability.

26It is important to reiterate the importance of referring to the TLAB’s Rules regarding procedural questions, and general information. The Parties may write to the TLAB for clarifications, if and only if the Rules cannot provide a clear answer to their question. When communicating with the TLAB, it is important to copy the Parties, irrespective of the nature of their enquiry, or any requests to be made of the TLAB.

So orders the Toronto Local Appeal Body

S. Gopikrishna

Panel Member