Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9

Date:

2023-03-29

21 202909 S45 04 TLAB

Slaby, Toronto Condo Plan 1468 v. Terra Firma Homes Corporation, 2023 ONTLAB 59

INTERIM DECISION AND ORDER

Issuance Date:

March 29, 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):

STEPHANIA SLABY; TORONTO CONDO PLAN 1468

Applicant(s):

BERNARD H WATT ARCHITECT

Property Address:

307 RIVERSIDE DR.

COA File No.:

21 124504 STE 04 MV (A0291/21TEY)

TLAB Case File No.:

21 202909 S45 04 TLAB

Hearing Date(s):

March 21, 2023

Deadline Date for Closing Submissions/Undertakings:

April 3, 2023

Decision Delivered By:

TLAB Panel Member S. Gopikrishna

REGISTERED PARTIES AND PARTICIPANTS:

Appellant

S. SLABY

W.H. ROBERTS

Appellant

TORONTO CONDO PLAN 1468

P. SMIRNOV

Applicant

BERNARD H WATT ARCHITECT

Party (TLAB)

TERRA FIRMA HOMES CORPORATION

A. STEWART

Expert Witness

T. MILLS

Expert Witness

F. ROMANO

Expert Witness

S. BRAVO

Expert Witness

Z. GEORGIS

Participant

J. HARRISON

Participant

S. CELSI

Participant

M.I. DUDU

Participant

L. DIFRANCESCO

Participant

M. DUKIC

Participant

P. TRINZ

Participant

B. ARCHER

INTRODUCTION AND CONTEXT

1It is important to note that Mr. Roberts, Counsel for the Opposition, submitted case law to be relied on during the course of Oral Argument, to the TLAB on March 20, 2023. Mr. Mills, the Expert Witness for the Opposition, submitted two(2) documents to the TLAB by way of a separate submission on March 20, 2023; the first provided a “Clarification of the Front Yard Setback”, while the second discussed his concerns with respect to the design of the proposed building at the Site, on the basis of references to the Ontario Building Code (OBC).

2I met with the Parties involved with 307 Riverside on March 21, 2023, by way of a videoconference. At the beginning of the Hearing, Ms. Stewart, Counsel for the Applicants, said that she wanted to object to the submissions made by Mr. Mills the previous day. While there was no objection to the document that offered a “Clarification of the Front Yard Setback”, there was an objection to the other document, which discussed his concerns with the Plans submitted by the Applicants, with specific reference to the Ontario Building Code( the “OBC”). Ms. Stewart raised the possibility of “prejudice” to her client, regarding the second document, about the Building Codes, because “it is a document which requires specific expertise to read and understand”, before the Witness can be cross-examined on the basis of the documents. Ms. Stewart also reminded everybody that at the last Hearing, completed on December 19, 2022, the Parties had agreed that all documents that would be relied upon for evidentiary purposes at the next Hearing, would be disclosed to the other Party, “at least two weeks in advance”.

3Ms. Stewart said that she had sent off an updated Zoning Notice regarding the Appeal to Messrs. Roberts and Mills on the previous day ( March 20, 2023)- this Notice eliminated some of the variances currently before the TLAB. She added that while she had received the Notice in January 2023, she had “missed” sending the document to the TLAB, and the Opposition till the day previous to the Hearing. I remarked that I had not known about the Zoning Notice, because I had not received it as of the morning of the Hearing.

4Mr. Roberts, the lawyer for the Opposition, said that he “understood” Ms. Stewart’s concerns regarding possible prejudice to her client, should Mr. Mills’ submissions be admitted onto the record, without giving her a chance to review the document, and prepare for Cross Examination. Mr. Roberts then reminded everybody that he himself had requested for an updated list of variances, and conditions to be submitted to the TLAB and himself “two weeks before the next Hearing” at the Hearing completed on December 19, 2022, after Ms. Stewart stated that some of the variances before the TLAB “may be dropped” as a result of recent decisions made by the Ontario Lands Tribunal (the “OLT”)”. He said that notwithstanding such a commitment from Ms. Stewart, nothing had been received from the Applicants until the previous evening held on March 21, 2023.

5I thanked the Parties for their submissions, and pointed out that in my Interim Decision dated December 28, 2022, I had explicitly directed the Parties to disclose documents to each other “at least two weeks in advance before the next Hearing”. I added that given the TLAB’s identification of March 21, 2022, as the next Hearing date by the second week of January 2023, the Parties “would have known that the deadline for disclosure of documents would have been March 7, 2023”. I expressed my disappointment at the inability of both Parties to follow through on direction in my Interim Decision, and commented that they had “inadvertently but interestingly evened the field” by not following through on instructions from the Tribunal. The Parties apologized to the TLAB, and to each other for not following through on the identified deadlines.

6I then advised the Parties that given our agreement that both sides would be allocated two and half hours of time each for Oral Argument, it would be impossible to finish the same day i.e. March 21, 2023, and that we would have to meet again to complete the Proceeding. I suggested to Mr. Roberts, and Ms. Stewart that if the document about the OBC were admitted into the record, Mr. Mills could be permitted to provide evidence before “we rise for the day”, after the completion of his cross-examination and re-examination on other matters. Ms. Stewart could then cross-examine Mr. Mills exclusively on the OBC before Oral Argument, on the last day of the Proceeding. Both Counsel were agreeable to this proposal; as a result, both the documents submitted by Mr. Mills, referred to Paragraph [1] above, were admitted into the Record.

7After Mr. Mills completed his evidence by way of Cross-Examination and Re-examination, he spoke briefly to the documents regarding the interpretation of the Front Yard Setback, and his concerns about the design of the extension of the existing building the Site, with reference to the Ontario Building Code.

8After discussion about the availability of the Parties and the TLAB for another day, April 17, 2023 was picked as the date to hold the next Hearing, and complete the Proceeding. I stated to the Parties that this Hearing would start with Mr. Mills being cross-examined by Ms. Stewart, solely on the basis of his evidence regarding the interpretation of the “Front Yard”, and the OBC, which would be followed by Re-examination by Mr. Roberts, restricted again to the new evidence. After the completion of Mr. Mills’ testimony, Mr. Romano could give Reply Evidence, where appropriate, on behalf of the Applicants, after Argument would be heard from the Parties.

9At the completion of the Hearing on March 21, 2023, Mr. Roberts emphasized that the updated variances, and the proposed conditions be submitted to the TLAB by April 3, 2023, so that he could adequately prepare himself for Oral Argument. Ms. Stewart said that while she had already submitted the updated list of variances, she would nevertheless submit the updated list of variances, and proposed conditions to the TLAB. I agreed with the Parties, and stated that I would release an Interim Order reflecting what had been agreed upon by the Parties.

10The Parties also suggested that notwithstanding Mr. Mills’ being under cross-examination, he should be allowed to have discussions with other individuals involved in this Proceeding, to resolve the issues that he had raised regarding the design of the proposed building

ISSUES AND ANALYSIS

11Notwithstanding late submissions, the admission of the document submitted by the Witness for the Opposition regarding the Front Yard Setback was admitted onto the record, because the differences in interpretation between the Applicants, and the Opposition was brought up for discussion at the previous Hearing- I allowed the document reflecting the interpretation provided by the Opposition to be included into the record, because it marked the culmination of a discussion that had commenced at the previous Hearing.

12Notwithstanding the pertinent issue of possible prejudice to the Applicants raised by their Counsel, as a resulting of the admission of the document pertaining to the Ontario Building Code (OBC), I admitted the document which discussed the concerns related to the OBC, as stated by the Witness for the Opposition. The reason is that this issue had been raised in the Cross-Examination of the Witness at the previous Hearing, as a result of which I instructed him to submit the documents that had been relied upon to arrive at his conclusions. I find that the inclusion of these documents in the Record results in a fulsome discussion of the matter, such that the documentation and evidence correspond to, and complement each other.

13Given that neither the Applicants, nor the Opposition followed through on the deadlines provided in my earlier Order dated December 28, 2022, they forfeit the ability to allege prejudice as a result of late submission- rely on the folksy wisdom about how people living in glass houses should not be throwing stones at each other to make this finding.

14I note that the Applicants were in agreement with the Opposition’s request to submit the updated list of variances, with recommended conditions to the TLAB, and a copy to themselves by April 3, 2023. I emphasize the importance of adhering to this deadline, and ask the Applicants to ensure that the updated variances, alongside recommended conditions be submitted by way of a Word Document. I also instruct the Applicants to submit Plans and Elevations of their proposal, reflecting the last updates, in the form of a PDF document, alongside the updated list of variances, and conditions. I herewith advise the Parties that this is a standard submission required of all Applicants, in Proceedings where I am the Presiding Member, and discourage them from coming to inferences, on the basis of this submission.

15The Parties, and their Witnesses are free to have discussions regarding the Opposition’s concerns about the OBC, before the next Hearing scheduled for April 17, 2023, to resolve issues on which they have different perspectives. Such discussions are encouraged in the hope that it simplifies what needs to be completed on the last day of the Hearing. The alternative, seen purely from a scheduling perspective, would be to run a very tight ship, so that the five hour Oral Argument can be completed in a timely fashion.

16I find that no weight needs to be given to comments and concerns about allowing the Witness for the Opposition to engage in conversations with the Applicant’s Witnesses and Experts, “notwithstanding his being in Cross-Examination”. I note that the Witness’ Cross-Examination was completed, and that he provided evidence on the OBC, and the interpretation of the Front Yard, by way of an examination-in-chief, before we adjourned on March 21, 2023. Since the Witness’ cross-examination on this topic has not commenced, the Representatives and Witnesses for both sides are encouraged to have discussions with each other, without any concern about the inclusion of a Witness under cross-examination. I find that cross-examination of any Witness begins when Counsel conducting the cross-examination asks the first question of that Witness.

INTERIM DECISION AND ORDER

17The following documents, which were discussed at the Hearing completed on March 21,2023, and on which evidence was obtained from the Opposition, are admitted onto the record:

• Clarification of the Front Yard Setback

• Ontario Building Code- Fire and Safety Conditions.

18At the Hearing to be held on April 17, 2023, the Cross-Examination of the Witness for the Opposition, as well as Reply evidence from the Witness for the Applicant, will be completed within one (1) hour, after which each of the Parties will be given two and half hours each for Oral Argument.

19The Applicants are instructed to submit the final list of variances, accompanied by recommended conditions to the TLAB in the form of a Word Document, on or before April 3, 2023. The Applicants are also instructed to submit a PDF document of the Plans and Elevations of the proposal, as part of this submission. It is imperative that the Opposition be copied on these submissions.

20No further submissions, besides any Authorities to be relied on for the purposes of Oral Argument, will be allowed onto the Record. Any Authorities to be relied upon, (other those which have already been submitted) should be submitted to the TLAB by April 13, 2023.

So orders the Toronto Local Appeal Body

S. Gopikrishna

Panel Member