Valentin v. Toronto (City), 2023 ONTLAB 88

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2023-05-12

22 198648 S45 11 TLAB

Valentin v. Toronto (City), 2023 ONTLAB 88

DECISION AND ORDER

Issuance Date:

May 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):

400 EUCLID INC c/o TONY VALENTIN

Applicant(s):

TONY VALENTIN

Property Address:

400 EUCLID AVE

COA File No.:

22 132079 STE 11 MV (A0459/22TEY)

TLAB Case File No.:

22 198648 S45 11 TLAB

Hearing Date(s):

April 18, 20, 21, 27 and 28, 2023

Decision Delivered By:

TLAB Panel Member G. Swinkin

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Owner

400 EUCLID INC

Applicant

T. VALENTIN

Appellant

400 EUCLID INC C/O T. VALENTIN

A. HEISEY

Party (TLAB)

PALMERSTON AREA RESIDENTS ASSOC.

C/O A. KIRK MONTGOMERY &

P. MACLEAN

R. BROWN

Party (TLAB)

S. HUTCHINSON

R. BROWN

N.Z. MOORE

Party (TLAB)

CITY OF TORONTO

D. ELMADANY

Expert Witness

C. CHAN

Expert Witness

G. DAVIDSON

Expert Witness

M. TEDESCO

Expert Witness

C. FLANAGAN (City of Toronto)

Participant

A. KUHN

Participant

E.F. KLAPMAN

Participant

M.E. DRONEY

Participant

T.E. CHURCHILL

Participant

F.D. PISANI

Participant

M. MARTIN

Participant

S. BLOCK

Participant

R. JOHNSTON

Participant

A. BURKA

Participant

D. FORMAN

Participant

A. SHAH

Participant

N. SANGHA

Participant

K.H. CHILDS

Participant

T. MAGOCSI

Participant

A.T. ROE

Participant

L.S. BROWN

Participant

H. GODERIS

Participant

J. REYNOLDS

Participant

L. GARIBA

Participant

S. LUMB

Participant

J. FAREZ

Participant

R. RAND

Participant

L. HUTCHINSON

Participant

L. WILLIAMS

Participant

A. ORKIN

Participant

R. KLEIN

Participant

B. HEARTWELL

Participant

C. DOUGLAS HAY

Participant

D. PULLEYBLANK

Participant

M. SHIP

Participant

F.S. DIAMOND

INTRODUCTION AND CONTEXT

1. 400 Euclid Inc. (the “Appellant”) is the owner of 400 Euclid Avenue (the “Property”).

2. The Property is the south half of a semi-detached dwelling fronting on the west side of Euclid Avenue, bounded on its south lot line and west lot line by a public lane known as Allan Reynolds Lane. To the south are commercial properties which front onto the north side of College Street.

3. The Appellant, who acquired the Property in early 2019, without initially applying for or acquiring building or plumbing permits, has undertaken complete alteration of the Property to convert it into a rooming house with 19 dwelling rooms and a two storey dwelling unit at the rear.

4. The Appellant, after being served with numerous stop work orders and Orders to Comply, made application to the Committee of Adjustment (the “Committee”) in 2022 to legalize this use. That application was refused. As a consequence, the Appellant appealed to the Toronto Local Appeal Body (the “Tribunal”). A hearing was held by the Tribunal which spanned five hearing days.

5. The Tribunal heard oral testimony from14 witnesses, including a housing policy planner from the City of Toronto Planning Department, two professional land use planners, the written evidence of a transportation engineer, the testimony of the immediately abutting neighbour of the other half of the semi-detached dwelling (municipally known as 402 Euclid Avenue), representatives of the local residents association (the Palmerston Area Residents Association) and various other participant neighbours.

6. The appeal raises fundamental issues about the planning approval process and the necessary respect which should be accorded to it.

7. As it was advanced before the Tribunal, an attempt was made to create a tension between the sober and careful assessment of a new development proposal and the potential fate of dispossession of tenants presently occupying the Property.

8. The Tribunal will deal with all of this in turn in the Decision below.

THE LEGISLATIVE AND POLICY FRAMEWORK

9. Provincial Planning Policy - Section 3(5) Planning Act - Provincial Policy Statement 2020 (“PPS”) and Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”)

10. Variance – S. 45(1), Planning Act

In considering an application for variances from the Zoning By-law, the Tribunal must be satisfied that the application meets all of the four tests under s. 45(1) of the Planning 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.

SUMMARY OF EVIDENCE

11. The Tribunal hearing had been preceded by a Prehearing Conference held on December 19, 2022, at the request of Appellant’s counsel. At the Prehearing Conference, the City of Toronto (the “City”) was present and signified that although it had not yet elected to take Party or Participant status in the appeal, a report was to go to City Council with a recommendation on the matter. As counsel for the City had no instructions at that time, he was not able to indicate the position which the City might ultimately take. Counsel was directed by the panel to bring a motion at the earliest opportunity after the Council meeting if it intended to seek status.

12. As it turned out, Council did direct staff to seek Party status in this appeal with a view to supporting the Appellant. The City brought the requisite motion and was granted Party status and provided with direction as to the filing of its evidentiary material. The Tribunal in that disposition also allowed for the filing of responding material by the other Parties and Participants. to the newly filed material.

13. The prehearing procedures also dealt with the simplification of evidence relating to one of the heads of variance relief being sought. That head was to seek relief from the Zoning By-law requirement that six on-site parking spaces be provided. The Appellant sought total relief from this requirement so that no on-site spaces would be provided. In support of the request an Expert Witness Statement by transportation engineer Michael Tedesco was filed. By way of a Responding Witness Statement of PARA’s land use planning witness, Gary Davidson, it was plain that no challenge was intended to be taken to this head of relief as it was understood to be in keeping with the policy direction taken by City Council to lift on-site parking requirements for low density residential development on a going forward basis. As well, there is no practical space to park any vehicles on the Property as it stands.

14. Discussion amongst the Tribunal, the Parties and Participants transpired and it was resolved that it would not be necessary to call Mr. Tedesco to give oral testimony. His written evidence, which also included a Reply Witness Statement with respect to street parking permits, would be taken in as Exhibits and would stand to support the requested parking relief. Those exhibits were taken in at the outset of the hearing.

The Evidence of Caitlyn Flanagan

15. Counsel for the City and the Appellant decided between themselves that it would be most appropriate for the City to call its evidence first. That evidence came in the form of testimony from Caitlyn Flanagan, the City’s only witness. Ms. Flanagan is employed as a Planner in the Housing Policy Unit of the Strategic Initiatives, Policy and Analysis Section of the City Planning Division. Ms. Flanagan describes her role in this position as involving the undertaking of research and analysis on housing-related issues and evaluating development applications against City Official Plan policies regarding rental housing, affordable housing, dwelling rooms, and tenant assistance.

16. With respect to this application, Ms. Flanagan’s assistance was called upon by the community planner, and the two of them co-authored the Planning staff recommendation memo to the Committee.

17. That memorandum supported the application but recommended that any approval be subject to the following conditions: 1. The owner install and maintain 25.6 square metres of soft landscaping in the front yard, substantially in accordance with the revised Site Plan drawing, received by Committee on August 2, 2022; 2. The owner apply for a multi-tenant (rooming house) license from the City's Municipal Licensing & Standards Division prior to the issuance of a building permit; 3. Opaque privacy screening measuring at least 1.5 metres in height be installed and maintained on the second floor rooftop patio; 4. Garbage and recycling bins be adequately screened from the public right-of-way on Euclid Avenue; and 5. The footprint and layout of the building be maintained substantially in accordance with the drawings dated March 28, 2022.

18. Ms. Flanagan had paid a visit to the site and was allowed entry into the building. In her evidence, she advised that City staff observed that the property is in good condition, was recently renovated, and the majority of units are occupied by tenants. Based on conversations with tenants and letters of support submitted by tenants to the Committee, staff understood that tenants generally pay between $850 to $1,400 in monthly rent and, as she put it, the property provides affordable housing to low income individuals, hospitality workers, women, students, artists, seniors, and newcomers.

19. Ms. Flanagan identified the relevant policies under the PPS and Growth Plan which concern the provision of housing.

20. Ms. Flanagan also identified the relevant policies under the City Official Plan (“OP”) which relate to the provision and protection of housing. She drew to the Tribunal’s attention Policy 3.2.1.2, which states that the existing stock of housing will be maintained, improved and replenished and she further advised that the preamble to the housing policies in the OP states, "As long as there is insufficient new supply to meet the demand for rental housing, our existing stock of affordable rental housing is an asset that must be preserved”.

21. She then focussed on Policy 3.2.1.11 of the OP, which states that "New development in areas where dwelling rooms, such as those in rooming houses, are permitted that would have the effect of removing all or part of a private building or related group of buildings, and would result in the loss of six or more dwelling rooms will not be approved unless: a) all of the dwelling rooms have rents that exceed dwelling room tier 2 mid-range rents at the time of application, or b) in cases where planning approvals other than site plan are sought, the same amount of residential gross floor area is replaced, eligible tenants have the right to return, and an acceptable tenant relocation and assistance plan is provided to lessen hardship for existing tenants.

22. Ms. Flanagan was strenuously challenged in cross-examination on whether the dwelling rooms presently on the Property would have the benefit of these protective policies as they were not lawfully created. She was adamant that they “existed”, whatever their legal status may be, and as such they were covered by these policies. She further went on to say that a conversion of the rooms or a significant alteration could be treated as a demolition.

23. In her opinion this application is in keeping with the intent and general purpose of the OP housing policies that seek to preserve and protect existing dwelling rooms.

24. Ms. Flanagan also spoke to the intent and purpose of the Zoning By-law by acknowledging that in this R zone and as the Property lies within Rooming House Area B 1, a rooming house is a permitted use, albeit one which is subject to a maximum of 6 dwelling rooms.

25. As the Appellant’s plan changed by way of a further document disclosure at the time of City involvement in the appeal, Ms. Flanagan was questioned on the proposed change to convert a windowless room on the first floor into a common kitchen. She advised that a common kitchen was not strictly a zoning or licensing requirement but was a good housing policy outcome.

26. Ms. Flanagan wrapped up her position by saying that the City of Toronto is facing a housing affordability crisis and the protection of existing, occupied, suitable affordable housing is imperative. In her view, as proposed, this application protects and preserves existing affordable rental housing in the City of Toronto. She buttresses this by saying that should the variances not be approved, the current tenants of 400 Euclid Avenue will be displaced and will have a challenging time accessing housing of reasonable quality and affordability within their community. Further, the City of Toronto will have permanently lost affordable housing stock without an opportunity to replace it.

27. She puts her view bluntly by saying that it would not be in the public interest to de-house 19 tenants.

The Evidence of Christian Chan

28. The Appellant called one witness, Christian Chan. Mr. Chan has been practising as a land use planning consultant since 2011, is a candidate Member of the Ontario Professional Planners Institute and has appeared before this Tribunal and the Provincial land use appeal tribunals many times and been previously qualified to offer opinion evidence on land use planning matters on those occasions. He was so qualified in this instance.

29. Mr. Chan was retained by David Joy, the principal of the Appellant, in July, 2022 for the purpose of assisting in the presentation of the variance application to the Committee at the hearing on August 17, 2022. Following the refusal of that application, he was retained for the purpose of appearing before the Tribunal on this appeal to support the requested variances.

30. Mr. Chan advised that he had attended at the Property before the Committee hearing but did not go inside it. He attended at the Property at the same time as Ms. Flanagan on November 29, 2022 and did go inside on that visit. He apparently conducted a further site visit in January, 2023.

31. From Mr. Chan’s filed material and from his testimony, it appears that he has relied entirely on his client for information about the proposal and the history of use of the Property.

32. Mr. Chan’s review and analysis operates from the premise that its physical presence is as it is found today as the existing rooming house with an integrated separate dwelling unit at the rear. He posits this as the reality that the Tribunal should address. For the purpose of applying his analysis, although he acknowledges that significant renovation has been done, he does not acknowledge that the building has been transformed by the material extensions and alterations which have been made to the building as attested to by many of the other witnesses in the proceeding.

33. At no time did he indicate why the Appellant chose not to apply for building or plumbing permits or why the Appellant has consistently been defying stop work orders and Orders to Comply. He, and counsel for the Appellant, attempt to deflect those issues by saying that there are separate processes to deal with those matters and that it is not strictly within the purview of this Tribunal to do so.

34. Mr. Chan advised the Tribunal that the Property has a lot area of 262.68m2, a frontage of 6.48m and a depth of 40.84m. He further advises that it has a total floor area of 522.85 sq.m. This yields a Floor Space Index (“FSI”) of 1.98. The Zoning By-law permits an FSI of 0.6.

35. The application for relief which was before the Committee expressed the requests as follows: 1. Chapter 150.25.30.2.(1), By-law 569-2013 In Rooming House Area B1, a rooming house is a permitted use provided the maximum number of rooms used for living accommodation is 6, not including rooms in a dwelling unit. In this case, the number of rooms used for living accommodation in the rooming house is 22, not including rooms in a dwelling unit. 2. Chapter 200.5.10.1.(1), By-law 569-2013 A minimum of 6 parking spaces are required to be provided on-site. In this case, zero parking spaces will be provided on-site.

36. Of course, the filing of the plans with the Building Division which led to the Zoning Examination review and description of required relief occurred before Mr. Chan’s involvement. What has to be understood here is that the Appellant filed modified plans in December, 2022 which showed 19 dwelling rooms and the separate dwelling unit at the rear, as well as the innovation of what was labelled as a common kitchen in a windowless room on the first floor which was presumably treated previously as a dwelling room.

37. Since it is clear from the drawings that the separate dwelling unit at the rear, which spans two floors, has both a kitchen and sanitary facilities (both of which are located on the same first floor), it could not have been described as a dwelling room or two dwelling rooms since dwelling rooms, by definition, cannot have both culinary and sanitary facilities.

38. The Appellant allowed the application to go to Committee seeking authorization for 22 dwelling rooms not including the dwelling unit at the rear. It is impossible for the Tribunal to discern what could possibly have transpired between the Appellant and the Zoning Examination section to lead to a request which was not consistent with the supposed internal scheme.

39. Mr. Chan and Appellant’s counsel tried to explain this by suggesting that the Zoning Examiner may nonetheless have understood the rear dwelling unit to be two dwelling rooms deployed over the two floors but the Tribunal has great difficulty with such an explanation in light of the very clear labelling of the spaces.

40. Mr. Chan also advised the Tribunal that he was aware that there were five separate Zoning Notices which had been issued, spanning from October, 2019 after the filing of a building permit application in August, 2019, followed by Notices issued in December, 2021, January 2022, March, 2022 and finally on April 4, 2022. He suggested that each successive notice would have been preceded by submission of revised plans, which then triggered the new Notice. The Tribunal learned nothing about what prompted these various submissions and what information or misinformation may have been provided to the City Building Department.

41. The Tribunal here refers to misinformation because the project designer, Mr. T. Valentin, the applicant, consistently referred to the basement front walkout as an existing feature which was simply being repaired. The Tribunal was provided with very clear oral and photographic evidence from community members that there was no walkout in this location prior to the Appellant’s acquisition of the Property in 2019. The City itself ultimately concluded that this was indeed new construction.

42. What also confounds the Tribunal is the material obtained by PARA through a Freedom of Information (“FOI”) request made by them to the City. This material contains the Order to Comply issued on August 10, 2021 which sets out as a contravention that 22 individual units have been constructed without the benefit of a building permit, a front basement walk-up stair has been constructed without the benefit of a building permit and that basement underpinning has been constructed without the benefit of a building permit. The Order goes on to require the Appellant to submit plans to the building department for the said unauthorized construction and obtain the necessary building permits for the unauthorized construction. Failing to obtain the necessary permit, the Appellant is to remove all unauthorized construction and to cease all further progressive construction until the necessary permits have been obtained. The same inspector who issued this Order, Mr. Raposki, documents on an Inspection History sheet disclosed as part of the FOI request, that he attended the site on March 20, 2019 and met a worker removing dirt from back rear door of dwelling and bringing that dirt to a dwelling on Manning Avenue. He says that the worker refused to provide his name and owner’s name and then walked away off site. There is a further entry on this sheet for April 2, 2019 which indicates that Mr. Raposki attended the site on that date, observed the same worker on the site, who again ignored him and walked away. The entry goes on to say that he did observe construction going on inside the back portion of the dwelling.

43. Included in the FOI material is a Zoning Examiner notice dated October 28, 2019 which is referencing the walk-out stair in its reference line. The sole item identified in the attached page is a statement that the use of the building needs to be established to determine whether certain provisions of the zoning by-law apply (with specific reference to 150.10.40.1, which relates to secondary suite regulations), with a request to provide floor plans of all floors of the building identifying/labelling the use of all rooms and areas. If, as alleged by the Appellant, a building permit application was made in August, 2019, what could it have shown? Surely it wasn’t the rooming house which is presently before the Tribunal or that Zoning Examiner’s note would not have issued.

44. The Tribunal also has no way to ascertain whether the Zoning Examiner was aware of the significant excavation which had occurred and what the Zoning Examiner took to be pre-existing floor area protected by the exemption for excess FSI provided for in Chapter 10.5.40.41(1) of Zoning By-law 569-2013, since the earliest plan submitted and any subsequent thereto would all have shown the new bedrooms as existing.

45. Chapter 10.5.40.41(1) of Zoning By-law 569-2013 reads as follows: In the Residential Zone category, if the lawful gross floor area of lawfully existing buildings on a lot results in a floor, space index greater than the permitted maximum floor space index, the lawful floor space index resulting from those lawfully existing buildings on that lot is the maximum floor space index for those lawfully existing buildings on that lot.

46. By definition, lawfully existing means lawfully existing on May 13, 2013.

47. Again, the local direct knowledge about the very limited area of the basement prior to Appellant acquisition was demonstrated by plans filed by Lee Hutchinson and attested to by others who were familiar with the Property and the organization of the other adjacent buildings in this block which were built around the same time.

48. This is a matter of significant concern to the Tribunal as Mr. Chan also adopted the position taken by his client that there had been no increase in the ‘footprint’ of the building, which might be better expressed as the envelope of the building. He apparently accepted that on faith as the testimony of numerous witnesses leads the Tribunal to understand that there was a material expansion of the third floor rear dormer and expansion of the second floor space in addition to the substantial expansion of the basement floor area.

49. But coming back to existing floor area, Mr. Chan did not address the major excavation which took place at the basement level. The Tribunal was provided with photographic evidence from the community and written and oral testimony about the spoil which was removed in a clandestine fashion in order to open up the basement space for further dwelling rooms. Information from the prior occupants of the dwelling confirmed that there was never a floor drain in the basement.

50. This fact is material as Mr. Chan attempted to justify the number of dwelling rooms here due to the sheer extent of floor area of the structure. His premise was that the maximum of six dwelling rooms was based on the size of a conventional semi-detached dwelling and that as this structure spanned virtually the entirety of the lot, save for the portion that currently constitutes the small front yard, the proposed 19 dwelling rooms would be proportionately sound.

51. It is also material to the question of existing floor area to appreciate that the area of the separate dwelling unit at the rear had in prior times apparently functioned as a livery and then workshop which had a dirt floor and no plumbing.

52. Mr. Heisey submitted as part of his document disclosure an affidavit of David Jose, the son of one of the former owners of the Property. In that affidavit, Mr. Jose advised that this rear area was known by them as the Euclid Garage, which the family used as a place of storage for goods sold by the family at a nearby hardware store that they operated. This was in the 1970’s. When the family ceased using the Euclid Garage for their own purposes, they apparently rented that space to others to use for storage. He was not aware when that use finally ceased. So, this space may very well have stood apart from the semi-detached dwelling in terms of its use and there is an open question as to whether it even had a finished floor. Mr. Chan did respond to the Tribunal’s question in this regard and advised that he had no knowledge of whether dirt floored space would be treated as floor area for zoning purposes. The description of the use and state of the space accords with what might be characterized as a garage, which can easily function as a storage space, and that this space functionally was not connected to the residential use in the attached building.

53. The timing of the evolution of this space was not delineated in detail to the Tribunal so that it is not possible to know whether it is floor area that should or would gain the benefit of the exemption provision in the Zoning By-law as to pre-existing legal floor area and thereby obviate the need for a further variance with respect to the great excess of FSI over the permitted FSI.

54. Also, the Tribunal heard from numerous witnesses that somewhat forward of this rear space, the tenants who occupied the Property prior to the purchase by the Appellant had established an art gallery space. Photos of this space were provided and it appeared that it was what the Tribunal would characterize as raw space, definitely not part of space which was being used for residential purposes.

55. Presumably in an attempt to respond to concerns and objections expressed by members of the community, Mr. Chan became the messenger during the hearing of further modifications to the proposal. These included a possibility regarding storage of bicycles, involving their accommodation under a staircase inside the side door to the first floor. This proposal came out of the blue with a mere assertion that three bicycles would fit in this location. This offer came after a mid-hearing offer that the Appellant would accept a condition of approval to pay a sum to the City to fund the installation of five bicycle rings somewhere in the vicinity of the Property. Based upon the testimony of various community members, it seems that the placement of such rings on Euclid Avenue to the south of the Property may not be feasible.

56. Similarly, the introduction of the common kitchen is in a small space with no window or existing outlet to the outdoors. The Tribunal specifically asked Mr. Chan about this proposed kitchen and was informed by him that although there was a fridge and stove in that space, neither appliance was hooked up. The Tribunal asked about how the space would be vented. Mr. Chan replied that an opening in the wall would be required and that this would require a building permit. Later on, Mr. Heisey produced a bare draft building permit application which made reference to the creation of a vent space through this building wall. The application had no detail beyond that and no associated plans were proffered. The Tribunal has no basis to treat this as anything other than a mere gesture to appear responsive. But what makes this even more puzzling is that later in the proceeding when the Tribunal picked up this issue again, Mr. Heisey responded that it may not be necessary to pursue creating an opening for a vent as he understood that there was some alternate technology which may not require it. He simply left it at that.

57. There was also a suggestion that waste bins could possibly be moved out of the front yard area and stored on the south side of the dwelling in a notched area of the south wall. Again, this would address the issue of the sheer number of waste bins which are being stored in the front yard but it took no account of the fact that the placement of the bins in this notch location would then block the windows in that area which give light into dwelling rooms. Here again, Mr. Heisey addressed this by saying that there is already a fence along the lot line which interferes with the light and that this wouldn’t be a problem.

58. All of these modifications and gestures seemed to be done on the fly without sufficient aforethought as to consequences or feasibility. This goes very much to credibility concerning all of the testimony.

59. The Appellant did not put before the Tribunal any expert testimony as to the structural integrity of the dwelling or its compliance with health and safety standards and whether the building is fit for occupancy. Mr. Heisey pointed out a Professional Engineer’s stamp on various drawings but apart from certain drawings with details of the basement walkout, the drawings were nothing other than floor plans without any explicit certifications or attestations as to Ontario Building Code compliance. Mr. Chan and Mr. Heisey kept exhorting the Tribunal to leave that to building permit processing in due course.

60. The problem is that this Appellant has no track record of respecting process, and the Tribunal, under the circumstances, cannot presume that he will do so. The Tribunal is essentially being asked to give its blessing to a use without any real knowledge about the fitness for purpose of the structure that it is to be housed within. To do so, in this panel’s view, would be irresponsible and a shirking of its duty to act in the public interest.

61. For the sake of the record, the Tribunal here acknowledges that Mr. Chan canvassed what he believed to be the relevant Provincial policy documents and offered his opinion that the proposal was consistent with, and conformed with, those documents. He also canvassed various City housing documents and plans, including the Housing Charter within the Housing TO 2020-2030 Action Plan, the Expanding Housing Options in Neighbourhoods initiative and the City Planning Neighbourhood Survey 2020.

62. And, of course, Mr. Chan addressed what he treated as the relevant policies in the OP, targeting specifically Chapters 1.1, 1.2 and 2.1, and Policies 2.3.1.1, 3.1.2, 3.2.1, 4.1.5 and 4.1.8. His opinion was that the proposal is compatible with the physical character of the established residential neighbourhood and that the proposal meets the intent and purpose of the OP’s housing and neighbourhood policies.

63. Mr. Chan concluded, after having set out a more detailed review both in his witness statement and in his oral testimony, that, in his opinion, the rooming house/multi-tenant house and the two variances requested to facilitate the issuance of a building permit meet the statutory tests pursuant to Section 45(1) of the Planning Act, namely that they meet the intent and purpose of the Official Plan, meet the intent and purpose of the Zoning By-law, are desirable and are minor.

The Evidence of Dr. Gary Davidson

64. PARA called planning evidence through Dr. Gary Davidson. Dr. Davidson is presently the president of The Davidson Group Inc., a private land use planning consultancy. Prior to that, Dr. Davidson was the Director of Planning and Development for the County of Huron, where he was employed from 1971-2002. Preceding that post, from 1967-1971, he was the Coordinator of Regional Planning, Department of Municipal Affairs, Province of Nova Scotia.

65. Dr. Davidson listed his professional affiliations as a Fellow, Canadian Institute of Planners; Member, Ontario Professional Planners Institute; Member, Association of Ontario Land Economists; Senior Associate, Canadian Urban Institute; and Member, Urban Land Institute.

66. Dr. Davidson is a Registered Professional Planner. He also identified certain offices held as part of his professional history, being President of the Canadian Institute of Planners (CIP) 1987-1988 and President of the Ontario Professional Planners Institute (OPPI) 2005-2007.

67. Based on his deep experience and professional achievements, Dr. Davidson was qualified by the Tribunal to offer opinion evidence on land use planning matters in the proceeding. Dr. Davidson did acknowledge that he lives further north on Manning Avenue somewhat in proximity to the Property, within the PARA catchment area, but advised that he has not paid any dues to PARA and doesn’t treat himself as a member of PARA.

68. Dr. Davidson advised that he was contacted by Paul MacLean, the acting Chair of PARA in mid-September, 2022, and after reviewing the Committee decision and background material, advised that he could support the Committee refusal of the application, He was formally retained by PARA on September 28, 2022 to provide planning evidence in this appeal hearing.

69. Dr. Davidson prepared and filed an Expert Witness Statement. In it, he says that sound planning is based on two pivotal concepts - substance and process. This starts with the Ontario Planning Act and continues through various Provincial policy documents, implementation instruments at the municipal level and extends to formal decision-making and appeal bodies.

70. To set the scene, he then goes on to frame what he considers to be the nature of the matter before the Tribunal. In that regard, he says that to frame a sound planning assessment, the change here in the use of the Property must be understood as from a single family residence, with an ancillary apartment, to a 22-unit (now 19 unit) rooming house. This change of use occurred in 2019. The change in use was carried out illegally, without applying for or receiving the required permits. The use purports to provide affordable housing as a rooming house but is operating without either occupancy clearance or a rooming house license.

71. Stepping back to the concepts of substance and process, he draws the Tribunal’s attention to the opening conceptual provisions of the Planning Act, specifically two clauses within Section 1.1. Section 1.1 (d) sets out as a purpose of the Act “To provide for planning processes that are fair by making them open, accessible, timely and efficient”. And then Section 1.1 (f) sets out as a purpose of the Act “To recognize the decision-making authority and accountability of municipal councils in planning”. In his view, these purposes suffuse and inform the other provisions of the Act.

72. He also drew the Tribunal’s attention to Section 2(h) of the Planning Act, which sets out as a matter of Provincial interest “the orderly development of safe and healthy communities.”

73. In underscoring these purposes and setting them against the background of this development and application, in his testimony, he says that the Appellant in this instance engaged in an intentional subversion of process and that this is a violation of his expected relationship with the community, both directly with members of the community and through the instrumentality of the municipality.

74. Essentially, the actions of the Appellant here prevented the fairness of the process by inhibiting the openness and accessibility of the details in advance of the project. In the normal course, the process requires a proposal (not a fait accompli) with full advance disclosure of its details so that the decision maker and the community can attempt to make a reasonable assessment of it against the prevailing policy and legal background, and then make a decision.

75. Dr. Davidson takes issue with a number of the assertions and arguments advanced on behalf of the Appellant.

76. Despite some early remarks by the Tribunal questioning the need for spending time focussing on the history of the Property, Dr. Davidson asserted that the history of the property known as 400 Euclid Avenue is important, as it informs the interpretation of planning policy and the application of the tests for appropriateness of a minor variance.

77. From his review of the record and the input of a number of local residents, he has come to the conclusion that 400 Euclid Avenue was purchased in 2019 (MPAC records) by the current owner, Mr. David Joy, through 400 Euclid Inc. Up until this purchase, Dr. Davidson is satisfied that 400 Euclid Avenue was used as a single family residence, with an ancillary apartment. While MPAC shows 400 Euclid Avenue as “a residential property with four self-contained units”, a floor plan filed at the Committee hearing and prepared by Ellis Knightingale, the long-term tenants of 400 Euclid Avenue prior to its sale, with annotations by Natasha Moore, indicates that 400 Euclid Avenue was a single-family residence with an ancillary apartment. This floor plan was found in Ms.Moore’s material.

78. Community member disclosure revealed a real estate listing in November, 2021 for the Property as follows: The 22 dwelling rooms at 400 Euclid Avenue were described as “furnished micro-units” and it specifically stated that “This is not a rooming house”. It also noted that the furnishings included kitchen/cooking facilities of a small fridge and microwave. In his view, this listing creates three issues: I. There is no definition of “micro-units” in the Zoning Bylaw, nor is it a permitted use; II. The dwelling room size is too small for a dwelling unit; and III. Rooming house dwelling rooms can have washroom facilities or kitchen facilities, but not both [Zoning Bylaw 569-2013, – Section 150.25.10.1 (2)]. According to the plans submitted to the Committee, the dwelling rooms at the Property all have washroom facilities and there were no common kitchen facilities. According to the real estate posting, the dwelling rooms have cooking facilities. Dr. Davidson was advised that the real estate listing advertising the Property for sale was withdrawn in April, 2022.

79. Dr. Davidson took specific issue with Mr. Chan’s reliance on Provincial planning policy to override the specific housing policies which the City has adopted in the implementation of Provincial policy.

80. He says that the salient point is not whether the Province, through its policies and plans, supports a wide array of housing, appropriate densities and affordability, but whether local official plans implement these policies. As he noted, in both the PPS and Growth Plan, it is municipal official plans and zoning bylaws that provide the means to implement Provincial policy and plans. To employ the PPS and Growth Plan to override Toronto’s Official Plan and Zoning Bylaw, one would have to establish that these municipal planning instruments do not implement Provincial policies and plans. He avers that it is not sufficient merely to note that Provincial policies and plans support housing.

81. Dr. Davidson thens turns to City housing policy as expressed in the OP. He is of the view that City Council has addressed the directive to provide for a whole array of housing but he suggests that the appeal here concerns only one aspect of housing policies, that of multi-tenant housing or rooming houses.

82. In this regard he says that the Toronto OP and Zoning Bylaw allow for rooming houses in all residential zones within the old City of Toronto. There is thus no support for a proposition that Toronto acts to prohibit rooming houses.

83. He also addresses the very recent step taken by Council with respect to multi-tenant housing. In November of 2020, a staff report to the City’s Planning and Housing Committee commenced a process of reviewing the “Regulatory & Compliance Framework for Multi-Tenant (Rooming) Houses Across Toronto”. This review included extensive city-wide public consultation. On December 14, 2022, City Council adopted a “New Framework for Multi-Tenant (Rooming) Houses”. While there are numerous components to this “Framework” of relevance to B1 residential areas, the Framework maintains the limit on the maximum number of dwelling rooms in a rooming house at 6.

84. On this point, Dr. Davidson says that there can be no doubt that City Council, speaking through its resolutions and bylaws, intends to limit the maximum number of dwelling rooms in a rooming house in the neighbourhood in which the Property is located to remain at 6 now and into the future.

85. He concludes on this point by saying that given City Council’s recent confirmation of the maximum number of dwelling rooms in a rooming house in the neighbourhood in which the Property is located, the requested change in the number of dwelling rooms from 6 to 19 would have to be sought by way of a rezoning, not through the minor variance application process. This would go to the heart of the Section 45 test as to the intent of the Zoning By-law.

86. Dr. Davidson roundly rejects the interpretation taken by both Ms. Flanagan and Mr. Chan as to the application of Policies 3.2.1.11 and 3.2.1.12 in the OP to the Property as it now stands. In his view, such policy concerning removal of dwelling rooms can only rightly be considered to be applicable to lawful dwelling rooms, which these are not.

87. He opines that Policy 3.2.1.11 is designed, as it states, to prevent “new development” that removes 6 or more dwelling rooms, unless a number of replacement conditions are met. He asserts that the Policy is not meant to provide an avenue to develop illegal rooming houses containing more dwelling rooms than the Zoning Bylaw permits. He rather adamantly replied to Mr. Elmadany in cross-examination that all policy documents rest on a presumption of legality. He says that is foundational.

88. It is to be noted that Dr. Davidson cast a critical eye upon the evidence of Ms. Flanagan. He commented on the fact that Ms. Flanagan has provided sufficient information and analysis only on the OP test of the four tests in Section 45. She has not provided enough evidence or analysis to give an expert opinion that the appeal should be allowed, and the variance granted. Despite this, she moves from her specific expertise of housing policy to go on in her written evidence to say that her expert analysis is also looking at the application from a land use planning perspective and not only a housing policy perspective. Dr. Davidson calls this out and says that from a land use planning perspective, her analysis, without sufficient examination of the other three tests, is deficient to offer a professional planning opinion on the merits of the variance. For instance, she provides no review of the question of whether this properly constitutes a minor variance.

89. Dr. Davidson says that Ms. Flanagan's planning argument seems to be based on the premise that, even though the use was created illegally, it should be legalized because it exists. Dr. Davidson pointedly comments that one can understand Ms. Flanagan’s desire to increase the number of dwelling rooms in Toronto. However, he fears that advocating an approach of “build first without permits and zoning conformity and then ask to be legalized” is not a recipe for good planning. It violates basic planning principles and it breaks down community trust in the planning process.

90. On the question of the importance of history regarding this application, Dr. Davidson challenges the inclusion into the calculation of the building’s gross floor area of the portion of the building which he characterizes as ancillary building area and he relies on the provision in Chapter 10.5.60.50 of Zoning By-law 569-2013 for this purpose. His reading of the history of use on this property leads him to conclude that the rear portion of the building was not used for principal residential purposes but rather for ancillary use purposes.

91. If this area were taken out of the calculation of gross floor area, that could materially decrease the FSI of the existing building and thereby undermine the argument of Mr. Chan as to the proportionality of this building’s proposed 19 dwelling rooms to what a conventional semi-detached dwelling could accommodate.

92. Dr. Davidson concludes his evidence with his opinion that In considering the context of the construction at the Property and the application of the provisions of Provincial policies and plans, the policies and provisions of the City of Toronto’s plans, policies, zoning provisions, ongoing policy development and permitting requirements, the application is not minor and that the appeal to the Tribunal does not represent sound land use planning.

The Evidence of Lee Hutchinson and Natasha Moore

93. Shahla Hutchinson is the owner of the adjoining northern part of the semi-detached dwelling which is municipally known as 402 Euclid Avenue. Ms. Hutchinson owns this property but currently has it tenanted to third parties.

94. Ms. Hutchinson has a son named Lee Hutchinson. Ms. Hutchinson also has a daughter named Natasha Moore. Both of them filed material and gave testimony in the proceeding. In fact, Ms. Moore prepared the witness statement which was filed in Ms. Hutchinson’s name and she spoke to it in the proceeding. Their testimony was valuable to the Tribunal in terms of historic use of the Property and potential structural and safety issues arising from the activities which have been undertaken at the Property.

95. Mr. Hutchinson was a former tenant of 402 Euclid Avenue. For about the last 20 years he has been living very nearby on Manning Avenue. He attested that before the Appellant purchased it, the Property was occupied by a single family and contained only two bathrooms and had an unfinished basement. He further advises that at the back of the Property, there was a workshop/storage area (where the other houses on the street have their garages) and a small art gallery was built in-between.

96. Mr. Hutchinson provided floor plans of the Property produced by the prior tenant and presented these alongside the floor plans which have been provided by the Appellant so that the Tribunal could understand the array of space before Appellant acquisition and the present configuration.

97. Mr. Hutchinson raised a number of concerns arising out of the construction activity on the Property which may adversely affect the structural integrity of the building and the safety of its inhabitants, which most importantly related to the state of the foundations, the underpinning of the basement area, the construction in general and how the drains have been established and whether they are of adequate design.

98. Mr. Hutchinson abhorred what he described as the brazen disregard for due process which has been shown by the Appellant.

99. Natasha Moore spoke on behalf of her mother, Shahla Hutchinson. Ms. Moore filed a very extensive witness statement which laid out in detail the particular items of concern to her, which fall into two basic categories, the potential adverse consequences on 402 Euclid Avenue of the unpermitted construction which has taken place on the Property and the brazen disregard for legal process which may be taken as a precedent for similar behaviour elsewhere in this community.

100. The evidence of Ms. Moore was informed by her own observation of the internal state of the Property when it was subject to a public listing for sale, information from her mother and information from other members of the community, especially regarding eyewitness accounts and photos of the removal of construction waste from the Property through the rear lane to a warehouse at 377 Manning Avenue.

101. Ms. Moore detailed the impugned construction activity as follows:

• a) Sewage Drains: The addition of new sanitary/sewage drains for 20 new bathroom facilities which connect to drains under 402 Euclid that are old/vulnerable clay pipes. • b) New Basement Walk-Out: The addition of a completely new front basement walk-out going down at least 9 steps with two landings as well as the addition of an extra exterior storage room constructed against the party wall with 402 Euclid • c) Basement Underpinning: The construction of deep, extensive, uninspected, illegal basement underpinning impacting the north party wall with 402 Euclid that supports the joists. • d) Basement: - The construction of an extensive westward basement expansion - The new construction of 4 units with 4 bathrooms - The installation of 2 new basement windows on the south side of the house - The demolition of original staircase descending from main level to front section of the basement and replacement with new staircase further west along party wall. • e) Main floor: The new construction of 7 units with 7 bathrooms requiring original walls to be demolished and rebuilt with a different footprint. • f) Second floor: - The construction of a second-floor infill addition where a green patio used to be - The new construction of 7 units with 7 bathrooms requiring original walls to be demolished and rebuilt with a different footprint - The construction of a new hallway to enter and exit 3 of the units. • g) Interior Staircase: The 180-degree reorientation of interior staircase from the second to third floor – replacing an original staircase that was positioned in a north to south direction with a new staircase that runs in an east to west direction parallel and attached to the party wall with 402 Euclid. • h) Third floor: - A major expansion of the third-floor dormer north to the party wall - The new construction of 2 units with 2 new bathrooms when no bathrooms existed on the third floor - The addition of a new walkway on top of the second-floor rooftop and along the party wall, as well as new stairs from the end of the walkway down to the second-floor patio. • i) Front garden: The paving-over of the front garden in cement. • j) Coach house: - Major renovation of bi-level coach house previously used as a workshop with a dirt floor, no plumbing and no heating into a bi-level dwelling - The addition of a new interior staircase replacing stairs in a different location - The addition of a new kitchen, bathroom and bedroom on the first floor and a new bedroom and bathroom on the second floor where no plumbing or heating existed before.

102. Ms. Moore detailed certain consequences at 402 Euclid Avenue which appear directly related to the construction activity at the Property. The basement wall in the southeast corner is showing signs of wetness where it hadn’t previously. One of the doors in the house ceased to freely open and had to be planed in order for it to operate. Drain contractors were called in and they confirmed that sewage from the Property is being conducted into an old drain which traverses the front yard of 402 Euclid Avenue.

103. The principal concern though is related to the capacity of the party wall between the dwellings to handle the structural loads which are now being placed upon it and whether the underpinning work was done properly.

104. Ms. Moore has grave concerns about whether the now proposed single small kitchen will indeed serve the needs of 19 tenancies. Even though this is not a requirement of the Zoning By-law, since she had attended the premises and was afforded an opportunity to view one or more rooms, she observed hot plates and feared that tenants will resort to such devices or the other appliance that the Tribunal heard referenced, convection cooktops. These devices can present serious fire hazards.

105. Ms. Moore did clarify that although the prior tenants of the Property occupied it as a single family dwelling for over 25 years, in latter years they did sublet out or use for short term rental, the first floor.

106. Ms. Moore concluded by saying that she is not opposed to rooming houses as they do make up part of the fabric of this city but that it is important for regulations to be followed. Her view is that the public must be protected from unscrupulous developers and builders converting semi-detached houses into over-crowded rooming houses in contravention of the law. She admonished the Tribunal that approving this appeal would set a dangerous precedent for future developers to do the same thing.

The Palmerston Area Residents Association Witnesses

107. The Tribunal heard from four witnesses who held positions within PARA, Paul MacLean, who is presently the Chair of the organization and has been so since 2013, Allison Kirk-Montgomery, who is a member of its Board and is a member of PARA’s Planning Working Group, Martin Ship, also a member of the PARA Planning Working Group, and Frumie Diamond, who is Chair of the PARA Green Committee.

108. Mr. MacLean lives on Euclid Avenue further up the street from the Property.

109. Mr. MacLean approached the matter from an ethical standpoint. He says that he has seen first-hand the importance of following due process in these issues, both to resolve disputes and also to achieve civic goals such as increasing density and providing affordable and deeply affordable housing options. In his view, following due process is essential to maintaining civic trust in our laws and our officials, and he says that either following due process or ignoring it has a very direct effect on society, including at the neighbourhood level.

110. Mr. MacLean spoke about the success of the Mirvish Village planning exercise, which he characterized as a collaborative effort amongst the developer, the City and the community where, in his view the original plans were improved dramatically.

111. By contrast, he said that in this instance, to grant the variances requested by the applicant would call into question the very laws and process of planning by which development is governed in the City. If granted, the message to citizens in this neighbourhood would be that our laws can be ignored with impunity and, needless to say, such a message would considerably erode public trust both in the laws and the process for zoning adjustments. These laws and this process are the basis through which we agree as citizens to come to and abide by decisions about how we achieve the Provincial and City goals of creating liveable neighbourhoods with increased populations.

112. Ms. Kirk-Montgomery lives on Euclid Avenue, essentially across the street from the Property. From this vantage point, she has directly observed months of illegal construction at 400 Euclid, beginning in spring 2019. On the 15th of August, 2019, she watched as an order posted by the building inspector was ripped from the door as workers returned to their jobs. In her capacity with PARA, community members have contacted her many times with reports of major renovations and removal of construction waste without posted permits. They have also complained about illegal paving of the front yard in 2021. Many expressed concerns for tenants living in an obviously illegally operating rooming house. In response, she advised that she contacted the Councillor’s office, Toronto Building, Toronto Fire Services, 311 and Municipal Licensing Services, asking for enforcement of by-laws, stop work orders and orders to comply.

113. Ms. Kirk-Montgomery underscored that their association actively promotes affordable housing. PARA helped to secure a large number of affordable and some deeply affordable housing units in the Mirvish Village development currently under construction. They have also intervened at Committee of Adjustment hearings on behalf of tenants who were being “renovicted.” She says that undeniably PARA welcomes legal rooming houses to the neighbourhood.

114. She objects to this application as she says that it is flawed and incomplete. The information provided that it has been used as a rooming house since its initial construction is patently false. The Appellant failed to disclose in the application the presence of two significant trees in the front yard. The number of dwelling rooms keeps changing and there is no reliable verification of what that number is or will be.

115. Ms. Kirk-Montgomery echoed Dr.. Davidson’s position that Council has very recently directed its mind to the number of dwelling rooms which is appropriate for this area, six. As such, she treats the request here is well beyond a minor variance.

116. Given the background experiences of other homeowners in similar semi-detached dwellings in this block of Euclid Avenue, she was concerned about whether the construction has respected the requirements of building and fire safety as there is no public evidence of inspections for those purposes.

117. Consistent with the positions of many of the other witnesses in this hearing, her position on behalf of PARA is that allowing this major change via the mechanism of a minor variance, particularly to an applicant who has consistently flouted City procedures and laws, would signal that zoning by-laws and the planning process itself can be ignored with impunity. The fact that 20 or more dwelling rooms and a dwelling unit have already been built illegally does not justify granting such an extreme variance.

118. Martin Ship, also a member of the PARA Planning Working Group, lives a bit more distant, at Markham Street and College Street. He lives in a multi-unit building. He agrees with the position of PARA in support of affordable housing and adds that such accommodation should be of good quality and safe.

119. Mr. Ship specifically spoke to the matter of bicycle parking. Even though Mr. Chan in his testimony indicated that only three tenants had bicycles, from the experience of Mr. Ship in his building, he believes that in due course most of the tenants will have bicycles and that some thought should have been given to storage for those bicycles inside the building. The proposal to place bicycle rings in front of the Movie House Lofts townhouse project to the south, in his view, is not feasible and would not be perceived by the tenants as a preferred option.

120. Frumie Diamond is a 30 year resident of a property further north on Euclid Avenue. As noted above, she is the Chair of the PARA Green Committee. Ms. Diamond’s evidence focussed on environmental impacts arising from the project.

121. Ms. Diamond called into question the credibility of the Appellant. She pointed out that the Tree Declaration submitted by the applicant states that there are no private or City owned trees on the property and yet there are 2 trees in the front yard that have been impacted by the construction of a concrete pad in the front yard. In support of this fact, Ms. Diamond provided very clear photos of those trees and the concreting over of the front yard. She amplified this by saying that these two trees in the front yard of the Property have been inadequately protected from the concrete, causing compaction of the roots and little access to rain water. The tree closest to Euclid Avenue has a diameter of at least 10 cm and requires a 1.8 metre protection zone. The second tree, with a slightly smaller diameter, requires a 1.2 metre protection zone. The open area around both these trees is significantly less than required. As well, the bicycle rack originally placed sits right next to one tree and the organic waste bin abuts the tree.

122. Given that the Appellant has come to this hearing agreeing to a City condition requiring removal of the concrete and establishment of soft landscaping in keeping with the Zoning By-law requirement of 75% of the front yard area, she rightly asks why, in good faith, no steps have yet been taken by the Appellant to act on that, especially as it is documented as a note on Drawing A-1 SITE PLAN, filed last August, that “existing concrete pad [is] to be replaced by grass.”

123. As the ongoing presence of the concrete can only be adverse to the trees, why indeed has it not yet been removed?

Other Witnesses in the Hearing

124. David Pulleyblank lives a few houses to the north of the Property, where he has lived since 1984. He asserts that since before 1984 when he moved into the neighbourhood and until 2019, when the Property was purchased by its current owner, 400 Euclid Avenue was a single family residence with a secondary unit. In the period before the Property was sold to its current owner, the front portion of 400 Euclid was rented by its owners as a single family dwelling to the Knightingales, who were proprietors of the "Kalendar" restaurant then located at 546 College Street. In the period before 2019, the rear of the building with an entrance on the south portion of the Alan Reynolds laneway, was an art gallery operated under the name "Faktorie Art Gallery". The sign for that business has been retained as a decoration by the current owner although that business is long gone. Beyond that space at the western extreme of the building was a garage and workshop.

125. Mr. Pulleyblank asserts that the houses running from 400 up to 422 Euclid Avenue were built around 1888 by a common builder and share common characteristics, most particularly that they did not have liveable basements. That space was merely a shallow space for services and there were no entrances to the basement from the front main wall.

126. He recounted to the Tribunal a circumstance that he encountered in 2012 when the northern half of the semi-detached building that he lives in was sold and the new owner decided to undertake a major internal renovation.

127. A serious structural deficiency was discovered during those renovations (the structure being within the 400-422 block of houses). During that renovation it was discovered that the load bearing party wall between that property and its neighbour had been built with only single wythe brick from the first to the third floor. The current Ontario Building Code requires a minimum of double wythe brick for such walls. The party wall deficiency required the addition of a new internal frame support for the second and third floors in the renovated structure. This party wall structural deficiency will also need to be taken into account if there are to be any further changes to the structure that involve the party wall.

128. Mr. Pulleyblank closely scrutinized the floor plans provided by the Appellant and drew the Tribunal’s attention to the matter of the practical size of the dwelling rooms proposed. In this regard he points out that for all units in the structure the entrance doors open inwards. Although this minimizes the risk that the door might obstruct a passageway in the event of fire, it also reduces the available living space in a unit by approximately 1m2 . In addition, the door to the sanitary facility of most units also opens into the so-called "bedrooms", and therefore also reduces the available living space by an additional approximately 1m2.

129. In addition to this, he points out that the true effective sizes of some of these units are far below their nominal sizes because a large portion of the space is needed to provide a narrow passage to the common hallway. For example: the second floor "bedroom" described in the plans as being 9.03 m2 has an effective area of only 6.77m2 if the access hallway is excluded. The second floor bedroom described in the plans as being 10.75 m2 is similarly undersized because of the ~40% of total space occupied by its access hallway. Measurements needed for an exact calculation of the residual space have not been provided in the drawings.

130. These observations raise questions for the Tribunal as to whether the spirit of the Zoning By-law is being met even if this may pass muster with the Zoning Examiner, and gives rise to the assertions of many of those participating in this hearing that this proposal may indeed represent an overdevelopment of the Property.

131. Fernanda Pisani lives on Euclid Avenue to the north of the Property, where she and her family have lived since 1987.

132. Ms. Pisani advised that she was friends with the Knightingale family and had been in the house at times during their occupancy. She corroborated the evidence as to the use of the Property for single family purposes for at least 20 years with one unit created late in the Knightingale occupancy for temporary rentals. She further corroborated that there was a small rear building rented as an art gallery, that was accessed from Allan Reynolds Laneway, which although she herself had not attended, her husband had.

133. Ms. Pisani spoke about the state of the front yard and the number of waste bins present. She also made a comment which was expressed by a number of participants about the regular presence of mattresses left out for waste pick up.

134. Ms. Pisani opposed the approval of this application. She concluded her witness statement with the following: “I fully agree that property improvements and the creation of safe, affordable housing is an important priority. I support the creation and sustainability of affordable housing, but do not support an application that is riddled with infractions, is illegal and has caused short and long-term consequences to adjacent properties such as what is happening at 402 Euclid. I trust that you concur that in our society it is essential that there is zero tolerance for contempt and disobedience of due process according to municipal law and regulations.”

135. Helene Goderis has lived as a tenant on Manning Avenue directly behind the Property for nearly a decade with just a laneway separating the two properties.

136. Apparently, Ms. Goderis had an encounter with the Appellant back in late March, 2019. He told her he was going to acquire the building that she lived in and that she would have to vacate. He saId that he would offer her a package but he never did acquire the building. However, it appears that some other party has acquired the building and will be pursuing tenant evictions on the grounds of a redevelopment of the property.

137. In any event, around that same time, Ms. Goderis noticed and started reporting illegal activities at the Property. She says that she saw dumpsters in the parking lot between 375 and 377 Manning being filled with materials from the Property and then hauled away (going the wrong way up Manning Avenue, which is a one way street) many times. To her, the presence of these materials being transported away from the Property showed that there was unauthorized construction activity done at the Property. She says that she saw that the workers who filled these dumpsters and did work at the Property never wore proper protective gear. She further advises that the building inspectors who she spoke with reported that it seemed that workers had been trained to evade the inspectors. She advised the Tribunal that because these massive renovations were done without permits and proper input from structural experts, she is concerned about the safety of tenants at the Property and about the future stability of 402 Euclid Avenue.

138. Susie Lumb lives on Manning Avenue as a tenant in near proximity to the Property, backing onto the same lane which serves the Property. She has lived there for 17 years and she confirmed the statements made by other witnesses as to the Knightingale occupancy of the Property from before the time when she moved in.

139. Ms. Lumb advised the Tribunal of her knowledge that at the time of the purchase by the Appellant of the Property, the Appellant also secured a rental of the warehouse which is located on Manning Avenue next to her house. This is the warehouse about which the other eyewitness witnesses testified that construction waste from the Property was taken.

140. In Ms. Lumb’s witness statement she referred to what she saw as many huge dumpsters got dropped off on the driveway next to her house. They were filled with earth from inside the Property. She saw what she described as a huge pile of removed copper in the warehouse. From her observations, she presumed that the Appellant gutted the whole house. Like the other witnesses, she has grave concerns about the safety of this unsupervised construction and she fears the precedent that would be set by an approval here.

141. Dr. Peter Rand owns and, when not living in another property in Niagara Region, lives in a semi-detached dwelling a bit north of the Property on the east side of Euclid Avenue, where he has lived for decades.

142. As he has a clear view of the Property from his property, Dr. Rand takes great exception to what has been done to the front yard of the Property and he doubts that it can properly be restored to a landscaped space.

143. He advised the Tribunal that he and his wife recently undertook a major renovation of their property on Euclid Avenue and that they secured all of the necessary permits in advance of commencing construction and had all of the necessary inspections done during the course of that construction.

144. Dr. Rand fully supported the representations made to the Tribunal by the Chair of PARA, Paul MacLean.

145. In keeping with those representations, Dr. Rand expresses his view in his witness statement in these terms: “If this variance is allowed, the City and this Tribunal would be providing a pathway to unscrupulous developers to accomplish major illegal conversions of other properties. What would prevent my neighboring semi at 417 Euclid from similar illegal conversions that could damage my property, just as 400 Euclid has apparently done to 402 Euclid?”

ISSUES AND ANALYSIS

146. The Tribunal has come upon a quote from Abraham Lincoln. He is said to have declared that history is not history unless it is the truth. This panel treats that statement as self-evident and one which will guide the panel in its disposition of this appeal.

147. The Tribunal has the disquieting perception that it has not been provided by the Appellant with full and fair disclosure about this project and its history. As a result, the Tribunal is not confident that it can safely proceed to a judgment on the merits when the factual foundation necessary to do so as put before it by the Appellant is suspect, ripe with omission and misrepresentation. To use a phrase, the underpinning of this appeal is uncertain and not readily open to inspection.

148. There is a fundamental untruth which constitutes the kernel of this matter. From a careful scrutiny of all of the evidence, the Tribunal is absolutely persuaded by the evidence from the great number of members of the community that the basement as it presently exists at the Property did not previously exist in this state and was only created after the Appellant’s acquisition of the Property in 2019 and he has been deceitful about that throughout this whole process.

149. As Dr. Davidson rightly pointed out, the integrity of the planning process depends on full and fair disclosure and acting in good faith. That was not present here on the part of the Appellant.

150. Mr. Heisey admonishes the Tribunal not to make the disposition of this appeal as a punishment for the Appellant’s behaviour as that would lie outside of the mandate of this Tribunal.

151. The Tribunal wishes to be clear here that punishment is not the impetus for the Tribunal’s disposition. The disposition here is the result of the absence of a full, defensible and truthful foundation upon which the Tribunal could make a proper assessment of the application.

152. It is entirely fair to say that the community was incensed by the behaviour of the Appellant in carrying out this project. This was inflamed by flagrant things like ripping off of the door of the building the various posted notices regarding stopping work and Orders to Comply. But it also was fed by the absence of consultation with the community.

153. And in this regard, words matter. Dr. Davidson rightly mocked the use of the phrase by supporters of the Appellant “without the benefit of a building permit”. This phrase is nothing more than a sugarcoating of an illegal act, the implication of the phrasing being that permits are mere official formalities or, worse yet, superfluities.

154. The Tribunal does not dispose of the matter solely on grounds of process. Dr. Davidson also referred to substance.

155. In this regard, the Tribunal was taken by Mr. Chan and others to a Planning Department report dated June 15, 2021 entitled “A New Regulatory Framework for Multi-Tenant Houses”. This report contains a specific topic heading on the maximum number of dwelling rooms in multi-tenant houses. The authors of the report state that the purpose of including a maximum number of dwelling rooms in the zoning by-law is to regulate the intensity of multi-tenant houses as a land use.

156. The report goes on to say that the proposed limits on the maximum number of dwelling rooms are reflective of the typical scale of house form buildings in residential areas across the city. It says that staff recognize that there are several options for how the intensity of multi-tenant houses may be regulated as a land use but that the approach being recommended in the zoning by-law amendments is to use the maximum number of dwelling rooms as described, being six, as staff have reviewed data on the sizes of houses in Toronto across the areas of all four Community Councils. Their conclusion was that average house sizes in all four areas can accommodate six rooms.

157. Other than Mr. Chan’s suggestion that, based upon its FSI as it has been cast on the Appellant’s drawings (which the Tribunal now has serious reservations about), this structure may be three times the size of an average house, the Tribunal heard no evidence on whether this would constitute acceptable intensity for this residential area or any alternate approach to how the impact of this intensity may be assessed.

158. It seems to the Tribunal that the matter of maximum number of rooms has been very recently addressed by City Planning Department staff and a very clear conclusion has been reached, and this apparently after consideration of various approaches. Council has endorsed the staff recommendation.

159. The Tribunal was not favoured with any fleshed out explanation as to why this limitation should not govern this Property. And let it be said again that the Tribunal does not treat the FSI figure presented by the Appellant as at all finally demonstrated as the lawful FSI of this property.

160. In addition to intensity of use, other matters surfaced in the community comments on this proposal. The City’s housing witness clearly stated that even though the Zoning By-law does not require a common kitchen in a rooming house, having one is a positive housing outcome. The Tribunal appreciates the value of this feature but this then raises a question as to whether the size of this proposed kitchen was appropriate for the number of tenants to be served by it, and further, whether the order of magnitude of rooms here may more properly warrant more than one kitchen facility. This was not explored and no guidance was provided on how to properly approach such questions.

161. The foregoing observation applies equally to the matter of bicycle storage. The Appellant’s original site plan provided a bicycle rack in the front yard. When this was displaced by the City’s need to see this area restored as soft landscaping, the Appellant offered to make a cash contribution for bicycle rings to be installed somewhere in the vicinity on public property. Without dislodging that offer, the Appellant then proposed to provide storage for three bicycles under a staircase on the first floor. As there is no vehicle parking being provided on site and as the City in its OP is encouraging active transportation, one would think that the matter of bicycle storage is a live issue. However, this was treated as a merely incidental matter. Provision for bicycle parking should have been planned into the design of the proposal with an appropriate number of spaces provided, whatever that number may be.

162. All of these matters simply point to the correctness of Dr. Davidson’s opinion that the variance process is not the process which is designed to address the issues which arise here stemming from the magnitude of the proposal. If a proposal of this magnitude is to proceed, the appropriate process is by way of zoning amendment application. That process lends itself to a better and deeper exploration of the issues raised and for the tailoring of whatever site specific requirements and limitations are determined to be appropriate.

163. Finally, the Tribunal will say here that the concern of the community about the precedential value of an approval of this application was rightly held. On the basis of the misrepresentations and the absence of a tenable rationale for a proposal of this magnitude, an approval decision may indeed have proved to be a temptation to others to advance down a similar path. Having said that, the Tribunal wishes to be absolutely clear that this is not the rationale for the refusal but merely an acknowledgement that the Tribunal recognizes the point which was made.

CONCLUSION

164. For the reasons articulated above, the Tribunal will be dismissing the appeal.

165. The Tribunal does wish to note, as will be evident from the list of registered participants at the outset of the Decision, that many persons elected to take Participant status in this appeal and most of those filed Participant Witness Statements. From a review of the witness statements, it was evident to the Tribunal that there was much common point of view and community knowledge. The Tribunal, at the Pre-hearing Conference, asked the assistance of Mr. Brown and Ms. Kirk-Montgomery in winnowing the list of Participants who would give oral testimony so as to avoid unnecessary repetition and keep the hearing within a reasonable number of days. The Tribunal is indebted to them in following through on the Tribunal’s request and simply wishes here to acknowledge the time and effort which was taken by all those who had an interest and participated in this matter.

DECISION AND ORDER

166. The Tribunal ORDERS THAT the Appellant’s appeal is dismissed.

G. Swinkin

Panel Member