2706463 Ontario Inc. v. Long Branch Neighbourhood Association, 2023 ONTLAB 71

Toronto Local Appeal Body

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

Date: 2023-04-26

22 150409 S53 03 TLAB 22 150410 S45 03 TLAB 22 150412 S45 03 TLAB

2706463 Ontario Inc. v. Long Branch Neighbourhood Association, 2023 ONTLAB 71

DECISION AND ORDER

Issuance Date: April 26, 2023

PROCEEDING COMMENCED UNDER section 53, subsection 53(19), Section 45(12), subsection 45(1) of the Planning Act, R.S.O 1990, c P.13, as amended (the "Act")

Appellant: 2706463 Ontario Inc

Applicant: EKP Designs Inc

Property Address: 24 FAIRFIELD AVE

COA File Nos.: 20 232829 WET 03 CO (B0055/20EYK), 20 232831 WET 03 MV (A0515/20EYK), 20 232832 WET 03 MV (A0516/20EYK)

TLAB Case File Nos.: 22 150409 S53 03 TLAB, 22 150410 S45 03 TLAB, 22 150412 S45 03 TLAB

Hearing Date(s): Oct 5, Dec 8, 2022, Jan 5, Feb 24, Feb 27, Mar 10, 2023

Decision Delivered By: TLAB Panel Member T Yao

REGISTERED PARTIES AND PARTICIPANTS:

People Type	Name	Representative
Applicant	EKP Designs Inc
Owner/ Appellant	2706463 Ontario Inc	R Cheeseman, S Fleming
Planning Witness	S Qi
Arboriculture Witness	D A White
Party	Long Branch Neighbourhood Association	J Gibson
Witness	C Mercado
Arboriculture Witness	H Savinsky

INTRODUCTION AND CONTEXT

[1] 2706463 Ontario Inc seeks to sever its property at 24 Fairfield and build two 2 storey homes, one on each lot. In addition to the severance, 2706463 requests the variances to Toronto’s zoning by-law as set out in Table 1 below. The property is on the north side of an east-west street; the draft R-Plan will divide the lot into Part 1 (left) and Part 2 (right). The Committee of Adjustment denied the severance and variances on May 13, 2022, and the owner 2706463 appealed, and so this matter comes before the TLAB for a hearing.

[2]

Table 1 Variances sought for 24 Fairfield

#	Variances from Zoning By-law 569-2013	Required/Permitted	Proposed Parts 1 (west) and 2 (east)
1	Front main wall heights	7 m	7.5 m
2	Rear main wall heights	7 m	7.5 m
3	Interior side yard setbacks for eaves	0.3 m from lot line	0.09 m
4	Lot area	370 m²	Both Parts - 290.32 m²
5	Frontage	12 m (39.4 ft)	Both Parts - 7.76 m (25.46 ft)
6	Floor Space Index	0.35 times the lot area	0.64 times the lot area
8	Interior Side Yard Setbacks (rear deck)	.9 m from lot line	.6 m

MATTERS IN ISSUE

[3] This case involves a request for a severance and variances and the Planning Act has separate tests for each.

[4] The development must also be consistent with Provincial Policy Statement and conform to the Greater Golden Horseshoe Growth Plan. These usually contain a high level of generality, which gives less guidance to development in urbanized settlement areas with full municipal services, as is the case here. However, in this case, I consider what Provincial policies have to say about trees, together with the Endangered Species Act, which protects butternut trees.

Severance tests

[5] The test for a severance is found in a combination of sections 53(12) and 51(24) of the Planning Act. S 53(12) permits an owner of land to apply to the Committee of Adjustment for a severance (called a “consent”), using the same criteria as if the owner were applying for a plan of subdivision. S 51(24) lists fifteen factors the Committee must have “have regard to”, but the extent of this regard is left to be weighed in the particular circumstances of each application. Some are inapplicable here, such as the adequacy of municipal services. Some are rarely a deciding factor for a single lot severance, such as the adequacy of school sites. The factors that are typically most relevant in a built-up area such as Toronto, are 51(24)(c) and (f):

(c) Official Plan conformity; and . . .

(f) the “dimensions and shapes” of the lots; . .

Variance tests

[6] Under the Planning Act and applicable case law, the variances from Zoning By-law 569-2013 must cumulatively and individually:

• maintain the general intent and purpose of the Official Plan;
• maintain the general intent and purpose of the Zoning By-laws;
• be desirable for the appropriate development or use of the land; and
• be minor.

Official Plan of the City of Toronto

[7] The Planning Act requires compliance with the Official Plan for both issues. Under s 4.1.5 of the Official Plan for the City, I am required to ascertain if the development respects and reinforces “the physical character of the neighbourhood”, and this character includes the “prevailing size and configuration of lots”. There are other relevant sections of the Official Plan dealing with tree canopy and regulation of injury to City trees.

Burden of advancing evidence

[8] The obligation is on the proponent to demonstrate to the decision maker that the tests are met, on the balance of probabilities; there is no right to a variance or a severance.

EVIDENCE

[9] I qualified 2706463’s planner Mr. Qi as able to give opinion evidence in land use planning. Mr. White, 2706463’s arborist, and Mr. Savinsky, LBNA’s arborist, were both qualified as able to give opinion evidence in that field. Ms. Mercado, president of Long Branch Neighbourhood Association, and Mr. Davidson, a long time resident and professor at Wilfrid Laurier University, testified in opposition to 2706463 Ontario Inc. They did not seek to be qualified as “opinion” or “expert” witnesses.

ANALYSIS, FINDINGS, REASONS

[10] 2706463 Ontario Inc wishes to sever a 50-foot lot into two. This will create two lots with a frontage of 7.76 m (25.46 ft) where 12 m (39.4 ft) is required. The key provision is s. 4.1.5 of the Official Plan mentioned on page 3, that the development must “fit into the character of the neighbourhood”. The first step is to define the boundaries of the neighbourhood.. There is latitude given to both the person seeking to make draw the appropriate boundaries, as well as discretion to the decision maker as to whether to accept them.¹ In determining fit, change is permitted but it must be sensitive and gradual.²

The respective study areas

Figure 3. Qi study area with lots differentiated by frontage; yellow: = 7.6 m frontages. Below: zoning map (slightly rotated)

[11] Mr. Qi’s broader study area extends in total about eleven or twelve blocks from east to west (827 homes); Ms. Mercado’s (drawn in white in Figure 3) is much smaller (about 100 homes).

Figure 4 Photo from LBNA

[12] LBNA criticized Mr. Qi’s area as overlarge. Mr. Qi stated:

14.7.1. Zoning: There are 15 distinct residential zones within the study area (see Part “3-8” of the Appellant’s Document Disclosure). Many of these zones are site specific and refer to specific properties or developments. The following zones are site specific and refer to a specific address or development: . . .[describes the 15 zones]. Therefore, despite the slight difference in zoning, the immediate, adjacent and broader neighbourhood contexts are unified through generally consistent zoning within the neighbourhood. (Qi Witness Statement)

[13] I agree with LBNA; a smaller study area represents a better-sized basis of comparison. Some parts of the Qi broader area are simply too far away for a person of ordinary walking ability. Other parts are derived from different zoning, for example: the block of RT land (handwritten “Skeens Lane”) is a solid block of yellow, i.e., 7.2 m (25 ft) frontages and under. It contains pods of townhouses each 5.5 m or so wide, five or six homes per pod (this information from Mr. Qi’s “lot Analysis Statistics Table”. The interior road, “Skeens Lane” is dead ended at the north and leads to “Skeens Lane Parkette”, a postage stamp-sized parkette on the east. The zoning is marked “Please see Etobicoke By-law 1997-96”³, and I find from the above information that this subdivision was created via a 1997 site-specific by-law and therefore can be considered a separate neighbourhood.

[14] However, this is not completely dispositive, because Mr. Qi argued in the alternative; even if we reject his broader area, he also discussed instances of comparable development in smaller, closer areas. I have considered this evidence will return to it below.

[15] I turn now to Ms. Mercado’s study areas. Her broader area is an inverted “L”, from Twenty Fourth on the east to Phlox (a short north-south street) on the west. Her eastern boundary is the rear of properties on Twenty Fourth to coincide with the RM u4 x2 boundary. It is entirely within Mr. Qi’s neighbourhood, but much smaller.

[16]

Figure 5. Upper: Mercado broader neighbourhood. Lower: Mercado frontages in the immediate block, 7.6 m (25-ft) in red; 15.2 m (50-ft) in green

[17] In Figures 6 and 7, I compare the overall numbers for the two broader areas. For simplicity, I have reduced each person’s categories to two: whether the lots met or did not meet a by-law standard. The standard is the minimum for frontages and areas. For FSI, the tabulation was for lots over 0.595.

Figure 6. Broader area statistics (Mr. Qi)

	Frontage	Lot Area
Minimum	12 m (39.4 ft)	370 m²
No of lots less than or equal to	7.6 m: 416 (50.3%)	290 m²: 333 (40.3%)
Total no. of lots	827	827

Figure 7. Broader area statistics (Ms. Mercado)

	Frontage	Lot Area	FSI (see Figures 9 and discussion below)
Minimum/Maximum	Minimum: 12 m (39.4 ft)	Minimum: 370 m²	Maximum: 0.35
No of lots less than or equal to / greater than	≤ 7.6 m: 65 (66%)	≤ 290.3 m²: 55 (61%)	> 0.595: 20 (26%)
Total no. of lots	98	90	77

[18] S 4.1.5 speaks of respecting the characteristics of a neighbourhood, including “prevailing frontages” etc. “Prevailing” is defined as the “most frequently occurring”, and both broader areas show 25-foot frontages are prevailing. Undersized frontages are prevailing in both study areas; but undersized lot areas are prevailing only in Ms. Mercado’s. However, the Plan goes on to give “greater relevance⁴ to the immediate block.

[19] The immediate block (Figure 5) contains nine north side properties and one south side property (the 7-storey apartment). I exclude the apartment. Of the nine, five are 15.2 m (50-feet), four are 7.6 m (25-feet) frontage. The latter include #6 and #8 Fairfield, a 2018 severance, now each containing one single detached house per lot. Ms. Mercado observed that for both parameters, lots of the proposed dimensions were not prevailing in the immediate block and argued that they did not meet the Official Plan’s intent.⁵ That is, 4 out of 9 is not prevailing. I find that her conclusion is correct.

FSI

[20] The third parameter is Floor Space Index; the amount of interior area divided by the area of the lot, or density. Mr. Qi did not attempt to ascertain the “prevailing density”; he thought the data was insufficient. But he did offer some evidence based on Committee decisions, which he said do give exact and reliable numbers.; He lists eight higher density Fairfield properties⁶(set out in Figure 8 below). Mr. Qi is careful to use only the Committee of Adjustment decisions as his universe; he says a “majority” are higher density; this is true. But the universe is “the neighbourhood”; not just those owners who have sought Committee approvals.

[21] Ms. Mercado estimated FSI’s from a number of sources, including MPAC,⁷ building permit data and Committee of Adjustment decisions. I accept her approach, and I find her observations on character are corroborated by the photomontage.

Figure 8. Qi high density properties on Fairfield

Address	Year	Remarks	FSI
6-8 Fairfield	2018	Severance	Both 0.69
16 Fairfield (typo in Qi spreadsheet)	2017	Triplex two doors from subject	0.73
30 Fairfield	2018	Severance where existing house was retained	0.64 (new house only)
31 Fairfield	2017	Rear addition (Photo Figure 11)	0.63
42 Fairfield	2020	New detached dwelling	0.69
45 A and B Fairfield	2010	Severance outside Mercado broader area	Both 0.83
51 Fairfield	2012	Three storey new detached outside Mercado area	0.803

25Ms. Fleming did cross examine Ms. Mercado on how she calculated FSI, but in my view, did not shake her testimony⁸ regarding her firsthand observations.

26Ms. Mercado’s FSI counts suggest both her study areas are majority low density. Of the 77 properties there are four severances; clearly not prevailing. However, I did not accept this observation uncritically. The plan examiner has rounded the FSI up, and the exact FSI is slightly under 0.64. Ms. Mercado’s dividing number “less than or equal to” 0.64 puts the proposed FSI in the second highest bracket. The two highest colours are:

violet greater than 0.64

next highest colour red: 0.595 to less than or equal to 0.64.

27It makes sense to consider both brackets as one. This makes violet + red properties at 20 out of out 77, which is not prevailing for the broader area, although higher density properties do occur in some numbers. Mr. Qi did not utilize the “materially consistent” exception in the Official Plan.⁹ Recalling his high density lots (Figure 8), there are 37 lots for his denominator for this specialized area, that is, both sides of Fairfield So, for this limited portion of Fairfield, 18% is not prevailing.

28The total number of lots in the Mercado columns is different. I ignored the apartment lot in all three cases; some properties are blank, meaning she was unable to ascertain data, and for FSI, she separately tabulated triplexes and semis. Number 10 Fairfield is a seniors residence with a site-specific zoning exception permitting a maximum of 14 residents plus one staff person. It should be excluded. If we also exclude 16 Fairfield, a triplex (misnumbered #22 by Mr. Qi), we have 2 high density out of seven, which is not prevailing. Thus both Ms. Mercado’s areas are majority non-high density; and in the next section I combine this information with the photos.

Figure 9. Mercado FSI map

Photomontage

29Figure 10 is a photomontage of the immediate block. In 8 Yorkleigh Ave, a TLAB decision that was appealed to the Courts, the decision said:

A numerical examination is not the end, but a means to the end. The goal is to determine the physical character, which includes numeric information but also visual data from which the finder of fact can add a verbal description.

Figure 10. Upper photomontage 28 to 16 Fairfield (north side, east is to the right); lower montage10 to 2 Fairfield; (there are no addresses: 26 ,20, 18, 14 or 12 Fairfield)

29A Divisional Court judge approved this approach.¹⁰ Combining the visual information with the numbers, I find the immediate neighbourhood is a mix of one and a half and two storey buildings with typically wide building-to-building distances (particularly between 16 and 10 Fairfield, and the character is one where there are few long, high walls facing a neighbour’s side lot line. For the seniors residence (#10), the site specific by-law imposed a 1.7 m setback to the east, so the building-to-building distance to its severed lot neighbour (#8) is 2.6 m (8.5 ft). There is ample tree canopy. I find it is low density with the exception of 6-8 Fairfield. The block is diverse, with two of the nine properties being “multiplex”. Despite the existence of two other severed lots, I find the proposed development does not “fit” the immediate block and hence the intent of the Official Plan Is not maintained.

30The Plan says the immediate block has “greater” relevance, suggesting the other blocks still have some relevance, so I looked at another blocks: one in and one outside Ms. Mercado’s study area. These two blocks are circled in black on Mr. Qi’s map (Figure 3).

31On the west side of Twenty Fourth, walking north from Daisy to Elder, all but one of the 9 houses are 7.6 m frontage and these 7.6 m lots are also coloured as the second highest FSI. Visually, this block face contains bungalows, one and a half or two storey houses; with only one redeveloped property, #30 Twenty Fourth. It received approval from a 2019 Committee of Adjustment decision at 0.68 FSI. The single 15.2 m lot (not the one that was redeveloped), has a wide, sideyard driveway.

Figure 11. Qi photo of #31 Fairfield 2020 decision approving FSI of 0.63

32Similarly, I examine the block on the south side of Fairfield between #27 and #79 (23 properties). This is not in Ms. Mercado’s, area, but she has supplied data and photos so I can make my own counts. There are: a 3-unit townhouse (#s 69 to 71, with frontages of 7.07, 5.58 and 6.98 m); a semi; at least four redeveloped properties, similar in character to the proposal; three bungalows; and the rest one and a half or two storeys sometimes with side driveways. There are three Committee of Adjustment decisions (Figure 8) with three high density lots (#31, #45A and B, #51) some minor discrepancies where I give Mr. Qi the benefit of the doubt. #31 is shown in Figure 11, there is a wide building to building side yard (probably the neighbour’s), a front pad and no attached garage. I find that the verbal description in a previous paragraph [29] extends to this section of Fairfield and corroborates those conclusions.

33The Planning Act requires that the maintenance of the intent of the Official Plan and zoning be established with particularity. Mr. Qi argued that the three important parameters, frontage, area and density, maintained this intent. I do not so find. The development does not respect and reinforce the character of the neighbourhood.

The other tests

34Mr. Qi made it difficult to ascertain how the development complies with he zoning intent by including different zones in his study area. The RM zone on both sides of 22nd Street (handwritten by me “density 0.6” in Figure 3), has a maximum density of 0.60 (opposed to 24 Fairfield’s density of 0.35). The size of the deviation from the zoning standard is relevant; and the difference between 0.35 to 0.64 is bigger than from 0.60 to 0.64. This is how the Courts direct this tribunal to interpret the Planning Act test of “minor”. Similarly, the area to the east of 22nd Street (handwritten “frontage 7.5”) is zoned minimum frontage of 7.5 m; only about a 0.26 m (11 inch) variance would be needed instead of 4,24 m (13.9 ft). I question how a development can maintain the intent of a provision that requires “RM” uses, a minimum frontage of 12 m, area 370 m², and at the same time one that requires “RD” uses, a 7.5 m frontage and lot area 320 m². In my view Mr. Qi’s “unified” argument was not convincing, since 4.1.8 says, “Zoning by-laws will contain numerical site standards. . .” and two different standards imply two different intents.

35I turn now to the large RD zone north of the subject, which differs from the subject block because it permits only single detached, whereas the subject permits a mix of singles and multiplexes. Diversity is important for affordability and other planning considerations (Official Plan s. 4.1.5 says “prevailing building types”). Photographs show detached houses on the south side of Elder (RM) beside a duplex or triplex, whereas on the north (RD), there are no such juxtapositions. I infer that the intention of the by-law drafters was to place RM on the south part of this neighbourhood to better enable small households in multiplexes, who may perhaps not own cars, to have access to transit on Lakeshore.

36Considering the desirability test, Mr. Qi states that the development meets the provincial desire for development to take place in settlement areas on full municipal services, etc. This would apply to every development application in Toronto and is not a meaningful argument. He goes on to say that another household could use this land and thus is a more efficient use of infrastructure. This is true. But this is only one of the Official Plan’s objectives, change is anticipated but it must be sensitive and gradual. Furthermore the Planning Act encourages additional units within detached houses¹¹, etc. as secondary suites to existing housing rather than new lot creation, particularly when the new housing unit is admittedly not affordable. I conclude that none of the other three tests are met.

37I now turn to the topic of how the Official Plan deals with trees.

Figure 14 Site plan Three protected trees to be removed (X’s) Fourth protected tree, Tree 3, marked by circle Present footprint in orange.

Official Plan goals in respect of trees

29A “big picture” view of the Official Plan attempts to “appropriately balance and reconcile a range of diverse objectives”¹² and has a carefully worded policy seeking to expand tree canopy for beautification, environmental, ecological (i.e., wildlife habitat) and property value objectives. It also attempts to allow homeowners to injure or destroy trees when their development objectives are modest. There are two tree policies in the Plan:

“preservation of trees “wherever possible”;¹³and

“enhancing the urban forest and increasing canopy coverage”.¹⁴

In addition, there are similar statements in higher level policies ¹⁵

36I can deal with my overall findings briefly because of admissions made by Mr. White (2706463 Ontario Inc.’s arborist): The relevant discussion is set out below.

Ms. Gibson: With this application, where the property is gong to remove three protected trees, remove two non-protected trees, and injure a third protected tree, [called Tree #3 later in this decision], would you agree with me that on this property the development is not going to be increasing tree canopy coverage?

Mr. White: I’m not going to lie about that or anything It’s just the way it is. This will be a problem of conflict with this by-law for any kind of multifamily ah dwelling with a bigger footprint. It’s just the way it is.

Ms. Gibson: So, what is your answer on that?

Mr. White: Yes. Er, you’re correct. It’s hard to satisfy high density um residential, like houses, right? Multifamily preferably um and increase the canopy at the same time; it’s not um easy.

37I find the admitted decrease in tree canopy coverage is contrary to the Official Plan goals of “city-building”. Mr. White is right. This is not an easy balance and has not been accomplished in this case. Since the test is that the severances variances must individually maintain the intent of the Official Plan, this failure to meet the tree Official Plan polices is serious.

Figure 15. Left: Survey of present outbuildings and trees; Right: Photo of same

38The tree evidence can be set out in more detail to support the conclusion.

39Mr. White inventoried one front yard tree, a Manitoba Maple, and five rear yard trees: The Manitoba Maple enjoys a 4.5 m (15 feet) growing space and since the zoning permits a side yard of as little as .9 m, assuming approval of the severance, the new foundation walls will go through roots close to the trunk.

40The rear yard trees area:

• a juniper, 32 cm, and
• Eastern White Pine, 48 cm.
• So called Tree#3, 28 to 48 cm diameter according to Mr. White; 80 cm according to the City and Mr. Savinsky.

There are two other pear trees that are too small to be protected by the Tree By-law.

41Mr. Savinsky (LBNA’s arborist) said the white pine was healthy, in an ideal location and could grow to 200 years old and possibly 450 years. He called it an “iconic” Canadian tree. Under s 51(24) of the Planning Act, in considering a severance I am to have regard to the “health, convenience, and welfare of the present and future inhabitants of the municipality”. In my view, purposeful interpretation of “convenience and welfare” can also denote “amenity”; which would include the benefits of mature trees. In the case of a long-lived pine, “future inhabitants” would encompass several generations. Planning is, to some extent, concerned with the long term.

42Throughout this process, Urban Forestry did not feel it was in their place to overtly question the removal of the Juniper, Pine or Manitoba Maple. I infer that their position is that that it is the TLAB’s function to consider all issues, including trees, while it remains free to make an independent judgement about issuance of permits after the TLAB makes a decision. It is possible that Urban Forestry would refuse a permit or order significant payment at a later date or also impose detailed tree protection measures.

The Tree #3 dispute

43In addition to the four trees mentioned, there is a fifth tree: Tree #3. If it is a butternut, its destruction is prohibited by the Endangered Species Act. If not, it is subject to the usual policies concerning a mature healthy private tree. The parties disagreed on it species; Mr. White maintaining that it was a “walnut hybrid”; i.e., having butternut and walnut genetic material; Mr. Savinsky (arborist for LBNA) coming to the opposite conclusion. There was much discussion about leaf structure, colour of the pith and so on.

44Before stating my conclusion on this issue, I digress into the issue of why 2706463 Ontario Inc might wish to protect Tree #3, when it is removing other trees more or less equidistant from the proposed house on the right hand lot.

45Builders find it easier to clear-cut the site to simplify construction. In this case, Mr. White said the plan was to move digging equipment down into the hole and up the rear, and store building materials at the back yard, thus he was instructed to report on the effects of removal of most of the rear yard trees. Mr. White told 2706463 Ontario Inc about the possible Endangered Species Act issue at the outset. The proponent told Urban Forestry it would seek a tree removal permit for Tree #3.

46It then reversed course.

Figure 16. Left: Initial tree protection measures (2020); Right: Revised measures (2021) Red indicates proposed hoardings. Juniper and Pine to be removed in both scenarios. Green shows Tree #3 canopy

47The first Committee of Adjustment hearing was set for November 14, 2021, and it was deferred to May 2022, which is the decision under appeal here. In the lead-up to the first hearing, Urban Forestry noted that Tree #3 was a butternut, and recommended denial. Dr Dida, the author of that report, also noted permanent loss of “a viable planting space” and from the accompanying photograph, I infer that his comment was about the Manitoba Maple.

48However, Dr Dida’s recommendation was superseded by a later email exchange between Mr. White and Mr. Deetlefs on the eve of the November 14, 2021, hearing. Mr. Deetlefs, (also in the Urban Forestry Department), offers to support the application if Tree #3 is merely injured, instead of removed. Mr. Deetlef requested further information on 2706463 Ontario Inc’s proposed tree protection measures,¹⁶ to which there was no response. I infer that Urban Forestry did what it felt it could, since this was a private, rear yard tree. In any event, the Committee denied the application and at the TLAB hearing, 2706463 Ontario Inc has still not proposed specific details to minimize tree injury, even though Mr. White has set out possible strategies.

Inadequacy of some tree protection measures, Long Branch

49If and when Urban Forestry does impose conditions, it will rely on the City’s enforcement mechanisms, about which LBNA has extensive firsthand experience, all documented with photos. Ms. Mercado could not find any Long Branch severance where trees on the property or nearby neighbours’ trees have survived in the long term. They are often debilitated by the construction/hard surfacing and die or sicken, although this may not always immediately apparent. Ms. Mercado summed up the crux of the problem being that enforcement relies on neighbours “ratting” on the contractor, by phoning 311. Complainants need to be well informed about tree protection and highly insistent that this is an urgent matter. Few neighbours, including Mr. Davidson, are prepared to confront construction workers intent on finishing their tasks.

50This issue is well known to the City — its Strategic Forestry Management. Plan¹⁷ has plenty of photographs of violations of Tree Protection Zones and it states, “Fail to plan – you plan to fail. Proactive planning is far more efficient than reactive mitigation”. I accept Ms. Mercado’s information and I find mitigation measures, as Ms. Mercado has observed, have in Long Branch proved to be ineffectual.

51In order to get Mr. Deetlefs’ support, Mr. White proposed to relocate the hoardings, etc. (See Figure 15, right), but leave the foundation walls unchanged. Tree #3’s tree protection zone (TPZ) just kisses the rear wall of the right-hand house. Within this TPZ, there is a basement walkout; it seems to me that this could be shifted to be less injurious to the tree. However, 2706463 Ontario Inc never offered to do so or explained why this could not be done. They have not even facilitated some preliminary excavation to ascertain the depth and extent of the present foundations, which would help craft tree injury preventive measures.

The DNA test

52On Day 2, (Dec 8, 2022), Mr. White testified that Tree #3 was a hybrid, and not a pure butternut, although he allowed that the only way to be sure was to submit a sample for a DNA test. He was nearing the end of his examination in chief by the end of the day.

53On Dec 22, 2023, Mr. White went to 24 Fairfield and obtained a tree tissue sample, which he sent to NatureMetrics (a testing lab in Mississauga), without his client revealing this action to LBNA or the TLAB. On Day 3 (Jan 5, 2023), Ms. Gibson cross- examined Mr. White. During the cross examination he adverted to the sending of tissue to the lab, and stated he was awaiting results. He also said he had been told not to mention this. I reminded him that he had sworn to tell the truth and the “whole truth”. Mr. Cheeseman rose to say that Mr. White was telling the whole truth; but there was nothing to say, since there was no result.

54NatureMetrics’ test result came the next week (January 12, 2023), at which time we were between hearing dates. Ms. Fleming waited until February 26, 2023, to give LBNA notice of this document, the day before the next resumption (February 27, 2023). At the outset of this hearing day, Ms. Fleming signalled that it was her intention was to tender the document in Mr. Savinsky’s cross examination (yet to come). Ms. Gibson objected on the grounds of lateness. Eventually I ruled it should be provisionally admitted; and be given a special number to show that its admissibility was in question.

55On hearing Day 6 (March 10, 2023), Ms. Gibson made a preliminary statement, (tantamount to a request for adjournment or a further request to rule the document inadmissible), that since the last hearing date, she had taken the NatureMetrics report (ostensibly favourable to 2706463) to the Ontario Ministry of Natural Resources, which has responsibility for enforcement of the Endangered Species Act. She stated that the Ministry had some concerns with the sample tissue not being culled by an independent third party, which is Ministry protocol. I stated I would adjourn to allow both parties to issue summonses to new witnesses. On instructions from her client, Ms. Fleming elected not to introduce the report, because 2706463 did not wish to delay the proceedings further. The hearing then concluded that day.

56I now am left with conflicting testimony whether the tree is a hybrid. The preamble to the Endangered Species Act states that, based on the United Nations Convention on Biological Diversity, we should not wait for overwhelming proof in acting to protect endangered species. ¹⁸ If this case turned only on whether the tree is a butternut or not, I would say that I should act to protect the tree on the basis of doubt. However, I can do the same irrespective of the species of tree. The Act’s larger purpose is to remind us of the interrelation of all species and Mr. Savinsky stated that there is value in protection of a hybrid, because desirable properties such as disease resistance could be bred back into strains of mixed butternut and walnut progeny. Approving the severance then would be contrary to the goal of “increasing diversity, especially of long-lived native and large shade trees”, like walnuts, butternuts or hybrids.

57Bearing in mind that both the Planning Act and the Endangered Species Act are legislative documents of the Provincial Legislature, they should be read together I see a common purpose in planning for the future inhabitants of Toronto and on the basis of the uncertainty of butternut protocol, 2706463 Ontario Inc’s equivocation and my lack of confidence in meaningful enforcement measures, at least for recent severances in Long Branch, I find this development does not preserve a “suitable growing environment for trees” and does not maintain this section of the Official Plan.

95 James St

58I wish now to refer to another Long Branch case, by my colleague, Member Tassiopolis, 95 James St¹⁹ who made the important observation that a 154 cm rear yard tree was not in the “as of right” building envelope and therefore automatically entitled to a removal permit. This is because the property owner requires variances, and thus his or her project cannot be “as-of-right”, no matter how minor the variances may seem in the eyes of the proponent. (This 95 James St did not involve a severance). I agree with Member Tassiopolis in that a request for variances allows the decision maker to consider the totality of the development, and in particular, the application of the tree protection policies alluded to. The decision maker is not constrained by a hypothetical “as-of-right” development that the proponent has no intention of building. Similar conclusions were reached by Vice Chair Bassios in 192 Dunvegan Road and by me in 251 Dunvegan Road.

Severances undermine tree protections

37Ms. Mercado noted that owners resort to self help when a severance is granted and creates undesirable features, such as an awkwardly shaped or over-narrow driveway. These are agreed to by the builder in an overall effort satisfy the approval authority but create permanent inconvenience. Ms. Mercado went to 6-8 Fairfield and compared the on-the-ground development with the approved site plan. There were significant deviations (Figure 17):

• The lower thin landscaping strip has disappeared, and the bottom homeowner has built a walkway to the front door, along side the driveway to make a wider combination hard surface;
• The driveway for the upper home was never built on a slant.

Ms. Mercado has some sympathy for the present homeowners of 6 and 8 Fairfield. The original driveway had no room for a person getting out of the car to step on a hard surface and no space to put snow. The other homeowner would have had to manoeuvre when backing out, had the builder/subsequent purchaser followed the approved site plan. I find that this demonstrates that severances that force shrinking of paved surfaces to below what is practical, even though by-law compliant, should be viewed carefully by the decision maker.

Figure 17. Original site plan for 6-8 Fairfield with Mercado annotations

Trees as part of Healthy Neighbourhoods

38The Healthy Neighbourhoods, s. 2.3.1 of the Official Plan states:

When we think of our neighbourhoods, we think of more than our homes. Our trees, parks, schools, libraries, community centres, child care centres, places of worship and local stores are all important parts of our daily lives.

39In my view, we would expect “trees” to be mentioned last, after those high- budget institutional and institutional-like uses, but it is mentioned first, because, in my view, trees are often overlooked, and the drafters did not want this to happen. In 2017, Council requested information on how privately owned trees are impacted by severance and variance activity.²⁰ Council was also sufficiently concerned that two years later, it suggested additional training should be given to the Committee and the TLAB on tree protection policies.²¹

Tree canopy has declined in Long Branch

40Ms. De Santis’ master’s thesis²² establishes that severances in Long Branch cause measurable tree canopy loss. ²³ This research was partially funded by the City of Toronto and LBNA.

41Mr. Savinsky’s evidence also keyed on his own personal experience as a homeowner from the sixties, who has watched a sapling grow to a mature tree on his double lot in Mimico. Together with Ms. De Santis’ work, he has provided an overview of tree canopy loss on a neighbourhood-by-neighbourhood basis. Long Branch and its sister neighbourhood, Willowdale West, both with the greatest numbers of severance applications, are amongst the Toronto neighbourhoods with the greatest canopy loss. Mr. Savinsky asserted there was a correlation between those variables, and I accept his conclusion.

Figure 18. Savinsky Table showing ten Toronto neighbourhoods with greatest canopy loss (2008 to 2018)

Toronto Neighbourhood Name	Description	Loss of canopy	as % of starting canopy
Playter Estates-Danforth	Danforth E of Viaduct	-25%	-68%
Kennedy Park	SE of Eglinton and Kennedy	-22%	-63%
University	SE of Bathurst and Bloor to College	-22%	-74%
Dufferin Grove	SW of Bloor / Ossington	-21%	-69%
Forest Hill North		-20%	-40%
Yonge St-Clair		-18%	-36%
Rosedale-Moore Park		-17%	-27%
Yonge Eglinton		-15%	-35%
Long Branch		-12%	-43%
Willowdale West	SE of Bathurst / Finch	-12%	-41%
Palmerston-Little Italy	S and E of Bloor/ Dovercourt	-9%	-47%
Moss Park		-8%	-58%

42The Official Plan refers to the entire City of Toronto including the worst performing neighbourhoods. Mr. Savinsky measured tree canopy loss on 24 Fairfield as well and found a loss, corroborating Mr. White’s admission. When one looks at the issue of tree protection from all the evidence, one becomes aware of the deeply significant importance of severances in causing canopy loss in Toronto.

43In conclusion, I find both the “respect and reinforce” the physical character of the neighbourhood and tree preservation provisions of the Official Plan are not maintained and thus both the severance and variances must be refused.

Ms. Mercado’s non expert witness status

44This is a separate issue arising out of Mr. Cheeseman’s motion to reject Ms. Mercado’s evidence because of her non-expert status. In this discussion, I mean “expert” in the sense that according to some commentators on the law of evidence, the expert witness can give “opinion” evidence and the non-expert cannot. In a previous written decision, I dismissed the motion as premature, but I assured 2706463 Ontario Inc that I would take up the issue again in my final decision. Ms. Fleming’s closing submissions did not touch on this topic but am assuming Mr. Cheeseman has given me sufficient case law already.

45In his written motion, Mr. Cheeseman relied on Graat²⁴ as the definitive statement of the law. As I stated in my interim decision, Graat widened the ambit of non-expert evidence, since it supported non expert police officers’ ability to give their opinion as to whether the defendant was intoxicated. In his review of the law, Mr. Justice Dickson said that it was established in R. v. German (a 1947 Ontario Court of Appeal case with similar facts to Graat), that there were a number of exceptions where opinion evidence from a non-expert was allowed, including identifying things, and distances.²⁵ In my view the kind of evidence that Ms. Mercado gave falls within this observational exception and in any case the fact/ opinion boundary is not as binary as Mr. Cheeseman claims.

46In 90 Ash (a TLAB case, currently under review at the request of the owner), I wrote an interlocutory decision in which I quoted Mr. Justice Sopinka, a much more modern statement of the law than German. The Justice criticized the distinction between fact and opinion evidence as unworkable²⁶ and a similar statement appears in Graat (“a false antithesis”). In 90 Ash, I also quoted Superior Court Justice Wright, who said that expert status should be regarded as a “modest” status, and the real question was not the witness’s status, but the weight to be given to the evidence, whether from an expert or non-expert.²⁷

47Ms. Mercado’s “observations” consisted of counting and enumerating, e.g., number of lots, numbers of Committee of Adjustment decisions, her personal experience (she has planted an oak tree). Her observations are relevant and probative. Inferences from counting lots of a certain size is similar to identifying things, estimating distances, and thus akin to the exceptions listed by Justice Dickson

48In addition, Mr. Qi did not address certain matters and as a result there was no conflict on certain facts, simply an absence of proponent evidence on those points. But often, the evidence was not contradictory. As the previous discussion demonstrates, I have accepted Ms. Mercado’s testimony at all points where it conflicted with Mr. Qi’s.

49I now consider Ms. Mercado’s use of reports that were clearly hearsay, such as Ms. De Santis’s thesis, which is not Ms. Mercado’s direct observation. Both witnesses relied on extensive hearsay: the survey, City records of property data and Committee of Adjustment decisions etc. Mr. Qi has more latitude; he can rely on another expert’s opinion, but he is still subject to hearsay rules of evidence. It is not the intent of the Legislature that tribunals summons a vast array of persons to prove basic facts that are not in doubt. The Statutory Powers Procedure Act gives tribunals wide powers to admit evidence²⁸ and I find that Ms. Mercado’s reliance on documents such as the thesis, various City reports and minutes to be admissible under s. 15(1) of that Act. I did the same for Mr. Qi and Mr. White. Admissibility, as I stated previously, is a different issue than relevance (See Footnote 28).

ORDER

50The appeal is dismissed, the severance is not granted, and the variances are not authorized.

T Yao

Panel Member

Footnotes

1. 1A key objective of this Plan is that new development respect and reinforce the general physical patterns in a Neighbourhood.
2. 2Physical changes to our established Neighbourhoods must be sensitive, gradual and “fit” the existing physical character.
3. 3Not provided by either Mr. Qi or Ms. Mercado.
4. 4The physical character of the geographic neighbourhood includes both the physical characteristics of the entire geographic area in proximity to the proposed development (the broader context) and the physical characteristics of the properties that face the same street as the proposed development in the same block and the block opposite the proposed development (the immediate context). Proposed development within a Neighbourhood will be materially consistent with the prevailing physical character of properties in both the broader and immediate contexts. In instances of significant difference between these two contexts, the immediate context will be considered to be of greater relevance.
5. 5Using the 3 concentric circles of evaluation, next door, across the street (the block) and the broader neighbourhood, the proposed frontage does not exist in significant numbers in the neighbourhood. This is not in compliance with the Official Plan. (Mercado Witness Statement)
6. 6He said, “The research table shows that on Fairfield Avenue, the majority of dwellings seeking an FSI variance were approved with an FSI similar or greater than 0.64 . . Six of these approved decisions along Fairfield Avenue were considered jointly with a consent to sever application that resulted in lots with an equivalent frontage and similar lot areas to the proposed lots.” . . 15.9.3.3.The ongoing trend of development in this area is for new dwellings with larger FSI. In particular: • 6 and 8 Fairfield Avenue were both approved at 0.69 FSI (199.04 square metres), • 22 [should be 16] Fairfield Avenue was approved at 0.73 FSI, • 32 [should be 30] Fairfield Avenue was approved at 0.64 FSI (290.4 square metres), • 42 Fairfield Avenue was approved at 0.69 FSI, [42 Fairfield has a Phlox facing front façade] and • 45 Fairfield Avenue Part 1 & 2 were approved at 0.83 FSI. [#51 is missing from list but shown on Mr. Qi’s spreadsheet]. There are many other examples where FSI variances have been approved in the neighbourhood which are similar or higher than the proposed FSI and the resulting GFA (Qi Witness Statement)
7. 7Municipal Property Assessment Corporation, the public agency responsible for valuing houses for purposes of municipal taxes
8. 8Ms. Fleming: Um, you stated that when you figured out the FSI, it was based partially on City data, partially on other data you were able to gather. Um, did you have any concerns using City data --data? Ms. Mercado" No, no, because we, we recognize the, um the data as a starting point. Um, so I do, I do acknowledge when you pulled it up uh, --Mr. Qi talked about how it needed to be verified for legal purposes. Um however, I also live in the neighbourhood, so um, I also, so I, when I bought the house, I know exactly how big it is. um according to someone else's measurements. I know what my lot size is. You get a feel for what the size of a house is and what the size of the lot is. So, we went from using the City data as a starting point. Then you look at the City data and you see what holes are in it. So, much is, things that are missing where you have the frontage, and you also have the depth. So, from those two pieces you can get a general lot area. So you can fill in that, by using simple math. From that, you can use the by law, and you can ah use a by-law and you can use it to get a general idea of what the FSI is, using, um, the bylaw, which it's escaping me right now, but the by-law that's defined in, uh 569-2013, and you can figure out, FSI --a general FSI. Then you walk in the neighbourhood, and you look at it, you know like, do I believe it? And then you go to things like Google Maps, saying I know what it looks like now. Well, what did it look like in 2017? What did it look like in 2007? It does there seems to be a hole in here. Okay, then you go to decisions, and then you look at decisions and you say, okay, well, does this agree with the City data? And then if --if there's a discrepancy between the two, the decision prevails, but only if it's still, if it's built. Because, as I stated, the -- there are many decisions in Long Branch where the applicant has gotten everything that they wanted and they never built anything. So, --so, and then, in real instances, we can go down a rabbit hole and we can start looking at aerial photographs and we also look at MPAC. So, we look at many many data sources to get a feel.
9. 9In such cases, the direction to respect and reinforce the prevailing physical character will not preclude development whose physical characteristics are not the most frequently occurring but do exist in substantial numbers within the geographic neighbourhood, provided that the physical characteristics of the proposed development are materially consistent with the physical character of the geographic neighbourhood and already have a significant presence on properties located in the immediate context or abutting the same street in the immediately adjacent block(s) within the geographic neighbourhood.
10. 10[13] Similarly, the Member did not require strict adherence to the numerical standards in the zoning by-law in order to maintain the intent and purpose of that by-law. As is evident from the decision, the Member considered other factors relevant to the intent and purpose of the by-law, including the character of the neighbourhood and historical context. The Member conducted a walk-through of the neighbourhood because he was aware that a numerical examination was insufficient to determine its physical character. As a result, I find that in respect of the first issue, there is no good reason to doubt the correctness of the decision. Marquis Manors Ltd. V. Kennedy, 2023 ONSC 1134
11. 11For example, No appeal re additional residential unit policies 17(36.1) Despite subsection (36), there is no appeal in respect of policies adopted to authorize the use of, (a) a second residential unit in a detached house, semi-detached house or rowhouse on a parcel of land on which residential use, other than ancillary residential use, is permitted, if all buildings and structures ancillary to the detached house, semi-detached house or rowhouse cumulatively contain no more than one residential unit;(b) a third residential unit in a detached house, semi-detached house or rowhouse on a parcel of land on which residential use, other than ancillary residential use, is permitted, if no building or structure ancillary to the detached house, semi-detached house or rowhouse contains any residential units; or(c) one residential unit in a building or structure ancillary to a detached house, semi-detached house or rowhouse on a parcel of urban residential land, if the detached house, semi-detached house or rowhouse contains no more than two residential units and no other building or structure ancillary to the detached house, semi-detached house or rowhouse contains any residential units. 2022, c. 21, Sched. 9, s. 5 (7).
12. 125.6.1 Official Plan Ch. 5 Implementation: Making Things Happen)
13. 133.1.2.1 New development will be located and organized to fit with its existing and/or planned context. It will frame and support adjacent streets, . . .to improve the. . . pedestrian interest and casual views to these spaces from the development by: . . . .3.1.2.1.d preserving existing mature trees wherever possible and incorporating them into landscaping designs. (Built Form)
14. 14s. 3.4.5 To support strong communities, a competitive economy and a high quality of life, public and private city-building activities and changes to the built environment, including public works, will be environmentally friendly, based on: d) preserving and enhancing the urban forest by: i. providing suitable growing environments for trees; ii. increasing tree canopy coverage and diversity, especially of long-lived native and large shade trees; and iii. regulating the injury and destruction of trees;. . .(Official Plan Ch. 3 The Natural Environment)
15. 151.8.1 Planning authorities shall support energy conservation and efficiency, improved air quality, reduced greenhouse gas emissions, and preparing for the impacts of a changing climate through land use and development patterns which: . . .f) promote design and orientation which maximizes energy efficiency and conservation, and considers the mitigating effects of vegetation and green infrastructure; and g) maximize vegetation within settlement areas, where feasible. (Provincial Policy Statement)
16. 16Good morning, Thank you for the revised plans and the altering of the walkout to minimize impact to protected tree. Please insert measurements on this site plan indicating the distances from tree to; • proposed construction deck staircase, walkout basement + over dig. • installed tree protection. • proposed root exploration digging. • Proposed walkway. Is the property going back to the committee of adjustment, if so, I will support the proposed injury and ask for an application to injure. If the property has received a Notice of Decision and Final and Binding please forward it to me to review and add to the file. The altering of the plans must be approved by Toronto buildings and Urban Forestry will require approval from the plans examiner. (Deetlefs email, Nov 10, 2021)
17. 172022, Parks Forestry and Recreation
18. 18The United Nations Convention on Biological Diversity takes note of the precautionary principle, which, as described in the Convention, states that, where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat. In Ontario, our native species are a vital component of our precious natural heritage. The people of Ontario wish to do their part in protecting species that are at risk, with appropriate regard to social, economic and cultural considerations. The present generation of Ontarians should protect species at risk for future generations. (Preamble, Endangered Species Act)
19. 19TLAB decision denying minor variance of .61 where 0.35 is permitted, July 29, 2022
20. 20The purpose of this report is to provide a response to the motion adopted by City Council at its December 13, 14 and 15, 2016 meeting, requesting that the General Manager, Parks, Forestry and Recreation, in consultation with the City Solicitor, the Chief Building Official and Executive Director, Toronto Building, and the Chief Planner and Executive Director, City Planning, undertake a review of the Committee of Adjustment consent and minor variance review process as it relates to tree protection. (Report to Parks and Environment Committee, Dec 16, 2017)
21. 213. City council request the General Manager, Parks, Forestry and Recreation to provide annual training to committee of Adjustment and Toronto Local Appeal Body members on tree By-law issues related to the Committee of Adjustment application process, and forestry issues to ensure that the members are educated regarding potential tree impacts with proposed front yard parking. (May 9, 2018)
22. 22University of Toronto Faculty of Architecture, Landscape, and Design.
23. 23Out of the 45 approved lot severances that were constructed between 2012 and 2019, a full inventory of 24 applications and a partial inventory of 11 applications, was completed using the Neighbourwoods© protocol. “D.. . The total area of canopy lost as of 2018 on the 40 parcels was 6127 m2 or 0.61 ha. Therefore, the percentage canopy loss between 2009 and 2018 on redeveloped lots was 56%. With respect to the adjacent properties, the total area of canopy in 2009 was 20,136 m2 or 2.01 ha. The total area of canopy lost on the adjacent properties between 2009 and 2018 was 0.49 ha, a 24% loss. The tree canopy loss will presumably be greater once the 15 approved redevelopments are built. (J. De Santis, 2019)
24. 24Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 SCR 819
25. 25The [German] court observed that there were several matters on which a person of ordinary intelligence [sic, this is later changed in the commentaries to “ordinary experience”] may be permitted to give opinion evidence based on his personal knowledge, . . .[Justice Dickson then stated his conclusions] I have attempted in the foregoing to highlight the opposing points of view as reflected in some of the cases, texts, and reports of the law reform commissions. We start with the reality that the law of evidence is burdened with a large number of cumbersome rules, with exclusions, and exceptions to the exclusions, and exceptions to the exceptions. The subjects upon which the non-expert witness is allowed to give opinion evidence is a lengthy one. The list mentioned in [ a Northern Irish case, citation omitted] is by no means exhaustive: (i) the identification of handwriting, persons and things; (ii) apparent age; (iii) the bodily plight or condition of a person, including death and illness; (iv) the emotional state of a person—e.g. whether distressed, angry, aggressive, affectionate or depressed; (v) the condition of things—e.g. worn, shabby, used or new; (vi) certain questions of value; and (vii) estimates of speed and distance. Except for the sake of convenience there is little, if any, virtue, in any distinction resting on the tenuous, and frequently false, antithesis between fact and opinion. The line between “fact” and “opinion” is not clear. To resolve the question before the Court, I would like to return to broad principles. Admissibility is determined, first, by asking whether the evidence sought to be admitted is relevant. This is a matter of applying logic and experience to the circumstances of the particular case. The question which must then be asked is whether, though probative, the evidence must be excluded by a clear ground of policy or of law. (Graat)
26. 261. Rationale of Exclusion §12.4 The development of the rule excluding opinion evidence was characterized by Wigmore as “an historical blunder”. Reduced to its essentials, it limited a witness to describing precisely and exactly his or her observations and no more. Any inference or conclusion taken from those observations was a matter for the court and the opinion of the witness was not wanted. The exclusion of such opinion evidence was primarily based upon the fear that it would otherwise result in a usurpation of the function of the trier of fact and that such opinion was irrelevant. . . . These justifications appear to be mere afterthought to support a rule which is neither sensible nor workable if strictly applied to exclude inferences which are rationally based on the witness' perceptions and without which the witness could not accurately, adequately and with reasonable facility describe the underlying facts upon which her or his testimony is based. (Citations omitted, my bold) (Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. Sidney N. Lederman, Alan W. Bryant and Michelle K. Fuerst)
27. 27Ontario (Ministry of Municipal Affairs & Housing) v. Ontario (Municipal Board) 2001 CarswellOnt 1089, [2001] O.J. No. 922, 103 A.C.W.S.(3d) 889, 144 O.A.C. 281, 20 M.P.L.R. (3d) 93, 41 O.M.B.R. 257. Note this case does not appear in the publicly available website
28. 28What is admissible in evidence at a hearing 15. (1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court, (a) any oral testimony; and (b) any document or other thing, relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious. Notice of facts and opinions 16. A tribunal may, in making its decision in any proceeding, (a) take notice of facts that may be judicially noticed; and (b) take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge. R.S.O. 1990, c. S.22, s. 16.