Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
23 204694 S45 03 TLAB
Merlak (Re), 2024 ONTLAB 179
PREHEARING CONFERENCE DECISION AND ORDER
Issuance Date: January 19, 2024
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): MIHA MERLAK
Applicant(s): LATTAG STUDIO INC
Property Address: 84 FOCH AVE
COA File No.: 23 179406 WET 03 MV (A0300/23EYK)
TLAB Case File No.: 23 204694 S45 03 TLAB
Hearing Date(s): January 29, 2024
Deadline Date for Closing Submissions/Undertakings: January 15, 2024
Decision Delivered By: TLAB Chair D. Lombardi
REGISTERED PARTIES AND PARTICIPANTS:
| People Type | First Initial. Last Name | Representative |
|---|---|---|
| Applicant | Lattag Studio Inc | |
| Appellant | M. Merlak | M. Cara |
| Party (TLAB) | M. M. Cestnik | J. Cestnik |
| Party (TLAB) | S. Kotsovolos | M. Cook |
| Party (TLAB) | A. McEntee | |
| Participant | A. Pitaro | |
| Participant | J-J. Andrieux | |
| Participant | V. Cestnik | |
| Participant | M. Lorenz | |
| Participant | R. Brown | |
| Participant | S. Masters | |
| Expert Witness | F. Romano | |
| Expert Witness | J. Deruyter |
INTRODUCTION AND CONTEXT AND MATTERS IN ISSUE
1This is a matter at the request of the Toronto Local Appeal Body (TLAB) in respect of an appeal from a refusal by the Etobicoke York Panel of the City of Toronto (City) Committee of Adjustment (COA) for variances requested in respect of 84 Foch Avenue (subject property).
2The Prehearing Conference (Conference) was held on Tuesday, January 16, 2024, by way of the City’s WebEx Electronic meeting platform; the Tribunal set aside 9:30 am to 12:30 pm for the hearing.
3The TLAB website for the subject property provides a ‘People List’ showing a total of fifteen (15) listed as Parties, Participants, and legal/authorized Representatives.
4For the record, the following invitees to the Conference, a virtual Hearing, were present through either audio-visual or audio-only participation as follows:
- Michael Cara, the Appellant’s, and primary owner’s solicitor, as well as Franco Romano, an expert planning witness;
- Michael Cook, the solicitor representing Party Sue Kotsovolos;
- Joe Cestnik, representing Party Marija Mary Cestnik;
- Party Alan McEntee;
- Participant Vilenka Cestnik;
- Participant Megan Lorenz
5As the Prehearing Conference herein reported was held virtually, it is noted that persons not present can access a recording of the proceeding through consultation with the TLAB office.
6The TLAB’s authority to bring the Parties and Participants together in a Prehearing Conference is permitted by Rule 21.6 of the TLAB’s Rules of Practice and Procedure (Rules), which also outlines the matters that can be dealt with in a Conference.
21.6 A prehearing may include settlement discussions, Motions or other procedural issues, in order to:
a) Identify the Parties and Participants and determine the issues raised by the Appeal;
b) Identify facts and evidence the Parties may agree on or upon which the TLAB may make a binding decision, including clarifying the specific details of the Application before the Tribunal and any revisions/modifications that may have been made after the Committee of Adjustment hearing;
c) Obtain admissions that may simplify the Hearing;
d) Discuss the possible use of Mediation or other dispute resolution processes and result in a more efficient and cost-effective hearing process;
e) Estimate the length of the Hearing and encourage Parties to agree upon the date(s) for any further procedural steps;
f) Deal with any other matter(s) that may assist in the TLAB conducting a fair, cost-effective, and expeditious resolution of the issues.
Identify the Parties and Participants and Determine the Issues Raised by the Appeal
7Mr. Romano was identified as both the Applicant’s Representative and expert witness in this Appeal through the documents filed with the TLAB.
8In clarifying this procedural inconsistency, Mr. Romano noted that he was required to identify himself as the authorized Representative to file the Appeal in the Notice of Appeal (Form 1) because of the existing formatting prerequisite of the TLAB’s Form 3.
9He confirmed, however, Mr. Cara as the Appellant’s authorized legal Representative and that he was retained by Mr. Merlak to appear as an expert planning witness in support of the Application.
10Mr. Cestnik is identified as both Party Mary Cestnik’s Authorized Representative and as having electing Participant status in the Appeal. He expressed unfamiliarity with the appeal process and clarified that Mary Cestnik, a Party, is his mother and that he and his sister, Vilenka Cestnik, who also elected Participant status, would be speaking on her behalf.
Identify Facts and Evidence the Parties may agree on and any Revisions that may have been made after the Committee of Adjustment Hearing
11Some of the neighbours who elected Participant status had either not filed a Participant Witness Statement (PWS) or had not served that PWS on all the Parties in the Appeal, as required by Rule 16.7 of the TLAB’s Rules.
12As a result, and with the agreement of the Parties, I directed those Participants who had not done so to submit a PWS and file same with all the Parties by no later than Monday, January 22, 2024.
13Therefore, the TLAB will permit the submission of a ‘late’ PWS by Participants, after the due date identified in the October 19, 2023, Notice of Hearing issued for this matter. However, those PWS yet to be filed and served on the Parties cannot include or introduce any new issues.
14The Applicant confirmed that the most recent set of revised Site Plan and Elevation drawings are included in Mr. Romano’s Expert Witness Statement (EWS), which is dated December 18, 2023.
15Also included in that EWS is an updated Examiner’s Zoning Notice and the List of Requested Variances, revised to include the elimination of Variance #3 and the modifications to Variances #1 and 2.
16After reviewing the submissions filed to date in this Appeal, the key issues expressed by those in opposition to the proposal for the subject property in dispute in this Appeal matter can generally be summarized as follows:
- overdevelopment of what neighbours in opposition characterize as a smaller-sized lot;
- objection to the inclusion of a garden suite;
- the proposal is out of character with the neighbourhood;
- height and ratio of the proposed living space to the soft landscaping are problematic;
- the request for an additional parking space in the front yard; and unacceptable adverse impacts related to privacy and overlook.
Obtain Admissions that may Simplify the Hearing
17The Applicant’s solicitor, Mr. Cara, and the solicitor for Party Sue Kotsovolos, Mr. Cook, agreed that the issues in dispute in the Appeal regarding the alterations to the existing dwelling appear to have been resolved. They suggested that the proposed garden suite remains the only issue still outstanding.
18However, Participant Lorenz did not agree; for the record, she noted her continued opposition to the variances being sought by the Applicant to permit the construction of the two storeys above the existing dwelling as well as the modifications to the existing garage and its conversation into a garden suite.
Discuss the Possible Use of Mediation or other Dispute Resolution Processes
19The presiding Panel Member canvassed the Parties and Participants to gauge their interest in participating in TLAB-led, non-binding, confidential mediation as permitted by Rule 20 of the TLAB’s Rules.
20Mediation was presented as a quasi-voluntary means of settling the issues of the Parties which can assist Parties, and especially lay citizens, in defining the matters in dispute and facilitating the settlement of some or all of the issues in dispute.
21The Parties failed to reach a consensus in this regard and the issue of engaging in mediation was dismissed. Consequently, the Hearing will proceed as a contested appeal matter.
22However, the Parties were encouraged to engage in private discussions in the interim, in the hopes that some of the issues in dispute might be resolved before the scheduled January 29th Hearing date.
Estimate the Length of the Hearing
23The Parties and Participants agreed that more than one (1) Hearing Day would be required, beyond the January 29th date already scheduled by the TLAB. Although there was not a consensus on the overall number of days that may be required, the Parties agreed that an additional Hearing Day would be necessary.
24Nevertheless, and out of an abundance of caution, the Parties agree to the TLAB scheduling two (2) additional days in February 2024, to hear this matter. The Applicant requested that the Tribunal attempt to secure consecutive days in February if possible.
25The presiding Member also raised the issue of whether there was any interest in conducting the subject Hearing days ‘in person’. The Parties and Participants advised that they prefer that the matter be conducted ‘virtually’ to accommodate all those who wish to attend the Proceeding.
Deal with any other matter(s) that may assist in the TLAB conducting a fair, cost-effective, and expeditious resolution of the issues
26Rule 21.8 of the TLAB’s Rules states that a Member who conducts a Prehearing Conference may or may not be seized of the Proceeding. I advised those in attendance that I have no issue continuing as the assigned Panel Member in this matter if the consensus supports that position.
27Upon receiving no objections to my ongoing position as the presiding Panel Member, I confirmed that I am seized of the Proceeding including the Hearing days still to be scheduled.
DECISION AND ORDER
28I order that the Participants who have not yet submitted a Participant Witness Statement to the TLAB as required by Rule 16.7 of the TLAB’s Rules of Practice and Procedure may do so by no later than January 22, 2024, using Form 13. The Participant Witness Statement is to include a written outline of that Participant’s intended evidence and is not to include or introduce any new issues.
29Those Participants who filed a Participant Witness Statement (Form 13) with the TLAB by the due date of December 18, 2023, in the Notice of Hearing (Form 2), and have not served that document on all the Parties, are required to correct that omission and do so by no later than January 22, 2024.
30The formal hearing of this Appeal shall be heard over three (3) Hearing days, with Hearing Day 1 having already been scheduled for January 29, 2024. Therefore, TLAB staff are directed to canvas the Parties and Participants for their availability for two (2) additional Hearing days, preferably consecutive, to be scheduled in February 2024 if possible.
D. Lombardi
Panel Member