Toronto Local Appeal Body

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

Date: 2023-04-12

22 234616 S45 03 TLAB

1241460 Ontario Inc. v. Toronto (City), 2023 ONTLAB 68

DECISION AND ORDER

Issuance Date: April 12, 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): CITY OF TORONTO

Applicant(s): DAVID MEJIA MONICO

Property Address: 72 JUTLAND RD

COA File No.: 22 188805 WET 03 MV (A0489/22 EYK)

TLAB Case File No.: 22 234616 S45 03 TLAB

Hearing Date(s): Tuesday, April 04, 2023

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By: TLAB Panel Member R. Kanter

REGISTERED PARTIES AND PARTICIPANTS:

People Type First Initial. Last Name Representative

Appellant (CITY) CITY OF TORONTO J. DEXTER

Owner 1241460 ONTARIO INC.

Applicant D. M. MONICO

Party (TLAB) P. TZIKOULIS (CSS GROUP INC) C.TZEKAS

INTRODUCTION AND CONTEXT

1On July 29, 2022 1241460 Ontario Inc. (the "Owner") applied to the Etobicoke York panel of the Committee of Adjustment (the "C of A") for a minor variance to permit a change of use from Employment Industrial to Retail Store for Units 34,35 & 36 at 72 Jutland Road (the "Site")

2On November 10, 2022, the C of A approved a variance to permit a retail use (bridal salon) at the Site. The approval was subject to the condition that the approval be valid for a period of 5 years (the "C of a Decision").

3On November 30, 2022, the City of Toronto (the "Appellant") appealed the C of a Decision to the Toronto Local Appeal Body ("TLAB"). The primary reason for the appeal was that a retail use was not allowed in an area designated Employment Industrial.

4On December 30, 2022, TLAB issued a Notice of Hearing, requiring Witness Statements to be filed no later than February 28, 2023, and setting a hearing date of April 4, 2023.

5The City did not file a Witness Statement until April 3, 2023, the day before the scheduled hearing. The Witness Statement included revised plans prepared by da design ink, dated March 27, 2023 (the "Revised Plans)".

6On April 4, 2023 I held a hearing before TLAB concerning the appeal, including the Revised Plans. Counsel for both the Owner and City requested me to maintain the C of A Decision, but to substitute a condition requiring construction in accordance with the Revised Plans for the condition approved previously. In other words, counsel agreed that I should proceed by way of a Settlement Hearing, pursuant to Rule 19 of TLAB's Rules of Practice and Procedure.

THE LEGISLATIVE AND POLICY FRAMEWORK

7Variance – Planning Act S. 45(1)

In considering the applications for variances from the Zoning By-laws, the TLAB Panel must be satisfied that the applications meet all of the four tests under s. 45(1) of the Act. 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.

8Settlement Hearing – TLAB Rule 19

19.1 The TLAB is committed to encouraging Parties to settle some or all of the issues by informal discussion, Exchange and Mediation.

19.2 Parties who arrive at a settlement shall Serve the terms of the proposed settlement on all other Parties and Participants and File same with the TLAB at the earliest possible date.

19.3 The TLAB shall give notice to all Parties and Participants of the date, time and location of the settlement Hearing, and shall thereafter conduct an expedited settlement Hearing on the terms of the proposed settlement.

19.4 Where no Person at the Hearing opposes the proposed settlement or where the TLAB rejects an objection the TLAB may issue an order giving effect to the settlement and any necessary amendments.

SUMMARY OF EVIDENCE

9At the beginning of the hearing, Counsel for the Applicant advised that Mr. Paul Chronis, a land use planner with the law firm acting for the Applicant, was available to provide planning evidence if required.

10However, counsel for the Appellant called Lisa Hosale, and stated that she would give evidence on behalf of both the Appellant and the Owner. After reviewing Ms. Hosale's education and experience, I qualified her to give expert opinion evidence with respect to land use planning.

11Ms. Hosale wrote in her Witness Statement and stated in her oral evidence that the Revised Plans depict a use that is primarily industrial, together with an associated retail use comprising approximately 27% of the area of the industrial use. She explained that the Revised Plans show that the proposed bridal shop will allow clients to interact with the staff engaged in the industrial process of making bridal gowns.

12The land use planner noted that the Site is designated as a Core Employment Area by Map 15 of the Official Plan. Uses that attract the general public and possibly disrupt industrial operations are generally not allowed in such areas. However, she opined that the use proposed for the Site maintains the general intent and purpose of S. 4.6 of the Official Plan. Only a few members of the general public would gain access to the site, solely for fittings/measurements and other activities that are essential to the manufacturing process of the customized production of bridal dresses.

13Ms. Hosale opined that the proposed use maintains the general intent and purpose of Zoning By-law 569-2013. S. 60.20.20.20 of the By-law permits retail uses in an Employment zone, providing the retail use is associated with a permitted manufacturing use, and the interior GFA of retail uses do not exceed 20% of the manufacturing GFA. In her view, the requested variance to permit a retail bridal shop, occupying approximately 27% of the area of an associated permitted industrial use, can be viewed as a technical variance.

14Ms. Hosale stated that the proposed use is desirable for the appropriate development of the land, since the manufacturing use would not create any noxious materials or hazards and would be dependent on and compatible with customer interaction. It is minor in nature since the retail use is limited; associated with the primary manufacturing use, and is consistent with maintaining manufacturing as the predominant activity on this Site.

15Ms. Hosale submitted that the variance be approved, subject to a new condition that the development be constructed substantially in accordance with the Revised Plans, "to the satisfaction of the Director, Community Planning, Etobicoke York District."

ISSUES AND ANALYSIS

16I considered the following issues:

(a) Should I accept the Appellant's Witness Statement, given that it was submitted the day before the hearing?

(b) Did the Applicant meet the onus to persuade me to allow the minor variance?

(c) Was the proposed condition appropriate?

17According to Rule 16.4, the Applicant and the Appellant are both required to submit Witness Statements no later than 60 Days after a Notice of Hearing is served – by February 28 in this case.

18However, Rule 2.2 requires the Rules to be liberally interpreted to secure the just, most expeditious and cost-effective determination of every proceeding.

Rule 2.12 allows me to grant all necessary exceptions to these Rules.

Rule 19 encourages Parties to settle issues by informal discussion.

19Since I am proceeding by Settlement Hearing, and neither party is prejudiced by the late submission of the City's Witness Statement, I will admit it as evidence in this case.

20The Applicant bears the onus of persuading me that the minor variance meets the four tests and other requirements of the Planning Act. If the case were contested, I would expect the Applicant to call a witness to provided evidence in support of its position. Since this is a Settlement Hearing, the Applicant can rely on evidence provided by the Appellant's land use planner in support of the application, subject to the Revised Plans and new condition.

21Since this is a Settlement Hearing, and the Applicant expressly adopted the evidence provided by the Appellant, I did not require additional evidence to be presented by the Applicant. I find that the land use planning evidence provided by the Appellant, adopted by the Applicant and not challenged by anyone at the hearing, persuades me that the application meets the tests set out in the Planning Act.

22I would not characterize the variance as technical. However, I am persuaded that it maintains the general intent and purpose of the industrial designation in the official plan; the modest increase in the retail use associated with the permitted industrial use maintains the general intent and purpose of the zoning by-law. It is desirable since it encourages the use of the Site for a use that is primarily industrial, and it is minor given the modest amount of increased retail use. Consequently, the Applicant meets the onus for obtaining approval of the variance sought.

23This is a Settlement Hearing. I give deference to the proposed settlement, since the joint submission falls within the reasonable range of outcomes. This case has limited precedential or referential value since my findings, such as the industrial nature of a bridal salon, are for the limited purpose of ensuring that the settlement is not contrary to the Planning Act

24The Appellant City requested that I replace the condition in the C of A Decision granting temporary approval with a new condition requiring the development to be constructed substantially in accordance with the Revised Plans, to the satisfaction of the Planning Commissioner, to ensure that the use would be primarily industrial with an associated retail component.

25I agree with the thrust of the proposed condition, to ensure that the building is constructed substantially in accordance with the Revised Plans. However, in my experience plans are examined and buildings are inspected by the Chief Building Official, in consultation with the Chief Planner. Both parties agreed to accept the proposed condition by deleting the last clause.

CONCLUSION

26I conclude that the variance proposed by the applicant should be allowed, subject to a new condition requiring the development to be constructed substantially in accordance with the Revised Plans.

DECISION AND ORDER

27That:

The Decision of the Committee of Adjustment to allow a bridal shop at 72 Jutland in units 34, 35 and 36 be upheld in part; and

The Decision be subject to the following condition:

The development shall be constructed substantially in accordance with the Ground Floor Plan (A2.1) and Second Floor Plan (A2.4) prepared by DA Design Inc., dated March 27, 2023, attached to TLAB decision/order issued on April 12, 2023, as it relates to the primary manufacturing use and the maximum area of the associated bridal shop (retail) use.

R. Kanter

Panel Member