Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
Date:
2024-09-06
24 141596 S45 11 TLAB
Craig Race Architecture Inc (Re), 2024 ONTLAB 256
MOTION DECISION AND ORDER
Issuance Date:
September 6, 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):
CRAIG RACE ARCHITECHTURE INC
Applicant(s):
91 BARTON AVENUE INC
Property Address:
91 BARTON AVENUE
COA File No.:
2024 112131 STE 11 MV
TLAB Case File No.:
2024 141596 S45 11 TLAB
Hearing Date(s):
September 6, 2024
Deadline Date for Closing Submissions/Undertakings:
Decision Delivered By:
TLAB Panel Member T. Kezwer
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Appellant
91 BARTON AVENUE INC
AMBER STEWART
Participant
M. NARROL
Participant
L. NUSSBAUM
Participant
B. MAUSBERG
Participant
G. THOMSON
Participant
R. SINCLAIR
INTRODUCTION AND CONTEXT
1This disposition relates to a Motion brought by the Appellant, relating to the property municipally known as 91 Barton Avenue (the "Property").
2The Property currently contains a two-storey detached house and a detached garage. The proposal before the Tribunal is for a 3-storey apartment building containing 9 new rental housing units, one of which will be provided as an affordable unit, and a 2-storey 2-unit laneway suite at the rear of the Property.
3This Motion was filed on August 28, 2024.
4There is one Party (i.e. the Appellant) to this proceeding, and five Participants.
5I will now go through a brief chronology of the events leading to the filing of this motion, as outlined by Leonid Kotov, the Principal of 91 Barton Avenue Inc., the owner of the Property, in his affidavit dated August 28, 2024.
6The application under appeal was heard by the Committee of Adjustment on April 17, 2024, and was refused.
7A second minor variance application was filed with the Committee of Adjustment, and was initially scheduled to be heard on July 10, 2024. The Toronto Local Appeal Body (the "Tribunal) issued a notice of hearing for this matter on June 11, 2024, which provided an Applicant Disclosure deadline of July 2, 2024, and an Expert Witness Statement deadline of August 12, 2024. The Applicant did not intend to make any revisions or modifications to the application which was made to the Committee of Adjustment which is why no Applicant Disclosure was filed. In addition, the Applicant expected that the Committee of Adjustment decision would be reached prior to the August 12, 2024, Expert Witness Statement deadline.
8There were complications arising from the review of the second Committee of Adjustment application by City staff. More specifically, Transportation Services staff outlined a requirement to convey a 0.22 m strip of land to the City for the purpose of future widening of Ciamaga Lane, and there was a requirement for bicycle parking spaces to be provided. As a result, the July 10, 2024, Committee of Adjustment hearing date was deferred, and the matter was heard on August 14, 2024, where it was denied.
9In addition to the Transportation Services staff concerns that needed to be addressed, Urban Forestry issued a Memorandum dated August 12, 2024, and uploaded to the Applicant Information Centre on August 14, 2024, which raised the issue of whether there were By-law protected trees which would be impacted by the Development.
10I note that Mr. Kotov has stated that he has a hard deadline of November 12, 2024, by which he needs to obtain a builder permit, otherwise the Certificate of Insurance that he has obtained from CMHC will expire.
THE LEGISLATIVE AND POLICY FRAMEWORK
11Rule 17 of the Tribunal's Rules of Practice and Procedure permit a Party to bring a Motion seeking specific relief, which Motion shall set out the reasons and grounds to be argued.
12Rule 2.7 of the Tribunal's Rules of Practice and Procedure authorize the Tribunal to do whatever is necessary and permitted by law to enable it to effectively and completely adjudicate matters before it in a just, expeditious and cost-effective manner.
13Rule 16 of the Tribunal's Rules of Practice and Procedure authorizes the Tribunal to make orders with respect to the disclosure of evidence and documents.
14Rule 25 of the Tribunal's Rules of Practice and Procedure permit a party to make a request in writing to obtain a summons for a witness to attend a Tribunal hearing, which request shall set out the issues and evidence the witness is intended to address and explain the relevance of that evidence to the issues in dispute.
SUMMARY OF EVIDENCE
15As noted above, an affidavit sworn by Leonid Kotov, the Principal of 91 Barton Avenue Inc., the owner of the Property, dated August 28, 2024, was filed in support of this Motion.
16The affidavit provided a summary of the chronology of events leading to this Motion, and a rationale with supporting exhibits for each request made in this Motion.
ISSES AND ANALYSIS
Preliminary Matter
17The Notice of Motion: Form 7 was served on the participants at the time of the filing on August 28, 2024.
18Rule 17.8 requires that a Moving Party shall Serve a Notice of Motion on all Parties and Participants and File same with the Tribunal at least 15 days before the date the Motion is to be held, unless the Tribunal directs otherwise.
19Time is of the essence for this motion. The first hearing date is scheduled for September 19, 2024. The matter will likely need more than one hearing date. Mr. Kotov has sworn in his affidavit that he is facing a deadline for the financial viability of the project. In addition, on August 23, 2024, the Property owner had a notice of the amended proposal served on all properties within 60 m of the site. This is consistent with the Committee of Adjustment practice, and it has been completed at least 10 days prior to the hearing of this motion, which is also consistent with the Committee of Adjustment practice.
20Lastly, I note that there is only one Party in this proceeding. In other words, the Participants do not have the right to respond to the Motion.
21For the aforementioned reasons, this panel directs that the Notice of Motion service requirements be abridged to 9 days, being September 6, 2024, which is the date of this hearing.
Request to Permit Late Filings
22The Tribunal's Practice Direction 7 deals with Late Filings. It notes that "The presiding Member has the discretion under the TLAB's Rules and under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, to admit or refuse to admit late filed materials."
23The Practice Direction further states that "In general, save for extenuating circumstances, minimal non-prejudicial delay or where consented to by other Parties, the late filed Applicant's Disclosure will not be admitted into the record."
24The deadline for Applicant Disclosure was July 2, 2024. Mr. Kotov states in his affidavit that the Applicant only received the new Transportation Services staff comments on July 3, 2024. Planning staff provided their final comments on August 9, 2024. Two days after the second Committee of Adjustment hearing on August 14, 2024, the Applicant Disclosure was filed. In addition, as I noted above, notice of the amended proposal was circulated to all residents within 60 m of the site on August 23, 2024.
25There are no additional parties to this matter, however, there are several Participants. I find that there is minimal non-prejudicial delay in the late-filing of the Applicant Disclosure, as notice has already been provided to the surrounding property owners which meets the notice requirements as set out by the Committee of Adjustment.
26The Expert Witness Statement and Document Disclosure was filed on August 26, 2024. I find that the staff comments arising from the second Committee of Adjustment hearing, which resulted in the second hearing being delayed until after the deadline for the Expert Witness Statement and Document Disclosure, to be extenuating circumstances, and I accept these late filings.
27As noted above, Urban Forestry issued a Memorandum dated August 12, 2024, and uploaded to the Applicant Information Centre on August 14, 2024, which questioned whether there were By-law protected trees which would be impacted by the Development. The Appellant has now retained an expert to prepare an Arborist Report. I find this to be extenuating circumstances because prior to August 14, 2024, the Appellant was not aware that Urban Forestry had comments which needed to be addressed, and I direct that the late filing of this document is to be accepted on the condition that it must be filed prior to the start of the hearing date.
Request for Issuance of Summons
28The Appellant requests a summons for David Driedger, the Manager in Community Planning who authored staff reports dated July 4 and 18, 2024, dealing with the proposal before the Tribunal. The Appellant intends to file Request to Summons Form 11 with the Tribunal.
29Rule 25.3 indicates that a Party requesting a summons shall set out in a Request to Summons the issues and evidence the witness is intended to address and explain the relevance of that evidence to the issue in dispute.
30It is the Chair who has the authority to sign and issue the Request to Summons.
31I accept that Mr. Driedger is likely to provide relevant evidence surrounding the section 45(1) Planning Act test for a minor variance application.
32In addition, Mr. Kotov has indicated in his affidavit that he has advised Mr. Driedger of this forthcoming summons request.
33Rule 25.4 indicates that a summons shall be Served on the witness by personal Service no later than 30 Days before the time for attendance, unless the Tribunal directs otherwise.
34I am satisfied that the circumstances surrounding the Tribunal appeal along with the changes to the application necessitated by the second Committee of Adjustment hearing are such that the issuance of a summons at this time will allow for the just, expeditious and cost-effective adjudication of the matter before the tribunal.
Request to Schedule Additional Hearing Date
35There is one Party at this hearing, and they intend to call two expert witnesses to testify, Mr. Uens and Mr. Drieger. In addition, there are five participants. I agree that more than one hearing day may be necessary, and out of an abundance of caution, I believe that it is important to schedule two additional hearing dates for a soon as possible after the September 19th hearing date.
CONCLUSION
36The Tribunal is satisfied that the acceptance of the late filing of the Applicant's Disclosure, Expert Witness Statement, Document Disclosure, and Arborist Report is necessary under these circumstances.
37The Tribunal is satisfied that provided that the Applicant file a Request to Summons Form 11, the summons shall be issued.
38The Tribunal is satisfied that more than one hearing day will be required in order to adjudicate this appeal.
39Out of an abundance of caution and to allow for contingencies, this panel believes that it would be prudent to schedule two further days for this appeal hearing beyond the currently scheduled hearing day of September 19, 2024, which will remain as the first day of hearing.
DECISION AND ORDER
40The Tribunal ORDERS that the Appellant's motion will be allowed in the following regards:
a. The late filing of the Applicant's Disclosure, Expert Witness Statement, and Document Disclosure are permitted and must be served on all the Participants if this has not already been done;
b. The late filing of an Arborist Report by the Appellant is to be permitted and to be filed as soon as it is available but before the start of the hearing, and it must be served on all the Participants;
c. Once a Request to Summons Form 11 is filed with the Tribunal, a Summons to Witness will be issued for Mr. David Driedger, Manager, Community Planning, at the City of Toronto;
d. Tribunal staff will canvas the Party and Participants as to available dates for two further hearing days subsequent to September 19, 2024, such days to be as nearly proximate to the first hearing day as is possible; and
e. Once those additional hearing days are settled, a fresh Notice of Hearing with further videoconference links will be forwarded to all persons on the mailing list.
T. Kezwer
Panel Member