Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
24 140822 S45 03 TLAB
1000275149 ONTARIO INC (Re), 2024 ONTLAB 264
FINAL DECISION AND ORDER
Issuance Date: September 20, 2024
PROCEEDINGS COMMENCED UNDER section 45(12) subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant(s): 1000275149 ONTARIO INC
Applicant(s): DESTIL DESIGN INC
Property Address: 699 ROYAL YORK RD
COA File No.: 24 118207 WET 03 MV (A0089/24EYK)
TLAB Case File No.: 24 140822 S45 03 TLAB
Hearing Date(s): September 4, 2024
Deadline Date for Closing Submissions/Undertakings:
Decision Delivered By: TLAB Chair D. LOMBARDI
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Applicant
DESTIL DESIGNS INC.
Jerzy Rabianski
Appellant
1000275149 ONTARIO INC
Pawel Szkuc
Party (TLAB)
S. HAGGAN-BABIC
Party (TLAB)
H. RALPH
Party (TLAB)
J. WARWICK
Party (TLAB)
L. SCHULTZ
Party (TLAB)
A SCHULTZ
INTRODUCTION AND CONTEXT
1This is an appeal by the Appellant, Pawel Szkuc (1000275149 Ontario Inc.), of the City of Toronto (City) Committee of Adjustment’s (COA) refusal of an application for three (3) variances in total, for the property municipally known as 699 Royal York Road (subject property).
2The purpose of the application is to permit the Appellant to construct a garden suite in the rear yard of the subject property (Application).
3The subject property is located on Royal York Road, north of The Queensway in the former City of Etobicoke.
4It is designated Neighbourhoods on Map 15 of the City Official Plan (OP) and zoned Residential Detached (RD) under city-wide Zoning By-law 569-2013.
5The Applicant is seeking relief from the provisions of the Zoning By-law to permit the ancillary building containing the garden suite to penetrate the angular plane projected: from a distance of 7.5 m from the rear main wall of the residential building; from the required rear yard setback; and from the required north and south side yard setbacks, respectively.
6REQUESTED VARIANCE(S) TO THE ZONING BY-LAW
- Section 150.7.60.30.(2)(A)(i), By-law 569-2013
No part of an ancillary building containing a garden suite may penetrate a 45-degree angular plane projected towards the rear lot line, beginning from a height of 4 m from a distance of 7.5 m from the rear main wall of the residential building.
The proposed ancillary building containing the garden suite will penetrate the angular plane projected from a distance of 7.5 m from the rear main wall of the residential building.
- Section 150.7.60.30.(2)(A)(ii), By-law 569-2013
No part of an ancillary building containing a garden suite may penetrate a 45-degree angular plane projection towards the front lot line, beginning from a height of 4 m from the required rear yard setback.
The proposed ancillary building containing a garden suite will penetrate the angular plane projected from the required rear yard setback.
- Section 150.7.60.30.(2)(A)(iii), By-law 569-2013
No part of an ancillary building containing a garden suite may penetrate a 45-degree angular plane projected towards the opposite side lot line, beginning from a height of 4 m from the required side yard setback.
The proposed ancillary building containing a garden suite will penetrate the angular plane projected from the required north and south side yard setbacks.
7The COA refused the application on April 11, 2024, and Mr. Szkuc appealed the matter to the Toronto Local Appeal Body (TLAB) which set a Hearing date of September 4, 2024, to hear the appeal.
8Five neighbours elected Party status including Sharon Haggan-Babic, Helia Ralph, John Warwick, and Lala and Andrew Schultz. All five Parties attended the Hearing on September 4th along with the Appellant, Mr. Szkuc.
9Helen Sawick, a neighbour, and Yeta Herscher, a recently appointed TLAB Member, also attended the Hearing as observers.
10I advised those present at the Hearing that pursuant to Council’s direction, I had attended the subject property and familiarized myself with the surrounding neighbourhood. I also noted that I had reviewed the pre-filed materials in preparation for the Hearing but that it is the evidence to be heard that is of importance.
11Prior to commencing the Hearing and as a ‘housekeeping matter’, the presiding Member addressed the following related issues in this case: incomplete filings from the Appellant; erroneous statements contained in Mr. Rabianski’s Expert Witness Statement; Responses to the Expert Witness Statement filed by Parties who are not experts; and, the late filing by Mr. Szkuc of a Reply to Responding Expert Witness Statement – Form 22 (Reply).
12In addressing the above-cited matters, the presiding Member generally characterized the file as being “a mess,” for lack of a better term. Upon reviewing all of the pre-filed materials, it became apparent to the Member that neither the Applicant/Appellant nor the Parties in this matter had taken the time or made an effort to fully understand the TLAB appeal process and their attendant obligations, even with all of the resources available to the public on the Tribunal’s website.
13The presiding Member noted that this had caused the TLAB to expend enormous and unnecessary time and effort to review and make sense of all the materials filed to date thereby requiring rulings and direction from the Tribunal to fulfill its mandate to dispose of the appeal in a timely, fair, and transparent manner.
14It is understood that parties participating in a TLAB hearing may not be familiar with the process; however, unfamiliarity or inexperience with the Tribunal and its Rules are not excuses. The TLAB Rules have been established to achieve an orderly, fair and efficient hearing of land use planning disputes within its mandate.
15The Parties were also reminded by the presiding Member that while the Tribunal’s appeal process can be, and often is an adversarial situation involving opposing parties and participants, their comportment in this matter, through the innuendos and allegations made against each other, was found to be extremely troubling.
16The interpersonal matters between the Parties are outside of the TLAB’s mandate. The TLAB is charged with making decisions strictly on the substance of the land use planning matter and the TLAB mandate is confined in this case only to the four tests set out in the Legislative and Policy section below. The TLAB Member confirmed for the Parties that these issues would not be addressed by the Tribunal as part of the consideration in this Proceeding.
Ruling on the ‘Late’ Filing of the Reply to Responding Expert Witness Statement (Form 22)
17Finally, the presiding Member did provide a ruling on the issue of the late filing of Form 22 – Reply by the Appellant. The submission in question was prepared on behalf of Mr. Szkuc by an expert witness (Mercedeh Arbab) not previously identified by the Appellant and who had neither filed an Expert Witness Statement (Form 14) by the requisite due date provided in the Notice of Hearing nor an Acknowledgement of Expert’s Duty (Form 6) as required by the TLAB’s Rules.
18Mr. Arbab, also, did not attend the Hearing.
19Prior to providing its ruling, the TLAB highlighted the following two critical issues regarding this situation for Mr. Szkuc: first, the Reply should have been submitted by Mr. Rabianski and not Mr. Arbab; and second, the document was filed ‘late’ and in such circumstances the TLAB is guided by Practice Direction No. 7, which provides a protocol for dealing with such situations.
20Practice Direction No. 7 states that the ‘default’ position in this regard is that, in general, save for extenuating circumstances, minimal non-prejudicial delay or where consented to by all Parties, the late-filed documents will not be permitted to be entered into the record at the Hearing.
21Given that none of those conditions were met, the TLAB ruled that Mr. Arbab’s Reply would neither be permitted to be entered into the record in the Hearing nor referred to by Mr. Szkuc in evidence.
22Mr. Szkuc had also filed a Notice of Written Motion (Form 7) on August 16, 2024, requesting relief from Rules 16.2 and 27.1 of the TLAB’s Rules to permit the submission of two (2) letters from neighbours who had no objection to the variances being sought, “…but only for the discretion of the presiding Panel Chair and not for public visibility.”
23That Motion matter was addressed in a Written Motion Decision issued by the presiding Panel Chair on September 16, 2024. In that decision, the TLAB refused Mr. Szkuc’s relief request; therefore, no further discussion is required or provided herein.
THE LEGISLATIVE AND POLICY FRAMEWORK
24Provincial Interest - S. 2
A decision of the Toronto Local Appeal Body (TLAB) shall have regard to, among other matters, matters of provincial interest, enumerated as (a) – (s) in the Planning Act.
25Provincial Policy – S. 3
A decision of the Toronto Local Appeal Body (TLAB) must be consistent with the 2020 Provincial Policy Statement (PPS) and conform to the Growth Plan for the Greater Golden Horseshoe (Growth Plan) for the subject area.
26Variance – S. 45(1)
In considering the applications for variances from the Zoning By-laws, the TLAB Panel must be satisfied that the applications meet all of the four tests under s. 45(1) of the Act. The tests are whether the variances:
maintain the general intent and purpose of the Official Plan;
maintain the general intent and purpose of the Zoning By-laws;
are desirable for the appropriate development or use of the land; and
are minor.
SUMMARY OF EVIDENCE
27A summary of evidence is presented here for the purpose of providing some context for the following sections of this Decision. All of the evidence and testimony in this matter has been carefully reviewed and the omission of any point of evidence in this summary should not be interpreted to mean that it was not fully considered, but rather that the recitation of it is not material to the threads of reasoning that will be outlined below.
Appellant Pawel Szkuc
28The Notice of Appeal (Form 1) filed on April 25, 2024, identified Mr. Szkuc as the authorized Representative in this Appeal matter.
29Although the Appellant retained architect Jerzy Rabianski, Principal of Destil Design Inc.(Applicant), he did not attend the Hearing due to a family matter. As a result, Mr. Szkuc appeared alone and advised the TLAB that he intended to represent himself.
30Mr. Szkuc stated that he sought both to present evidence as a witness and act as an advocate at the Hearing. As the presiding Member, I explained the distinction between these two roles citing Rule 14.4 of the TLAB’s Rules of Practice and Procedure (Rules) and I advised him of the need to elect one role or the other.
31He ultimately elected to act as ‘agent’ in the matter and, in doing so, he was reminded that his submissions would be limited to factual evidence and could not enter into the realm of giving opinion.
32Mr. Szkuc provided an opening statement to the Tribunal explaining that he intended to construct the proposed two-storey garden suite ancillary structure in the rear yard of the subject property and would be in addition to a three-storey, 4-plex dwelling located more centrally on the property which is currently being built. He
33He confirmed that the 4-plex was a separate construction and not part of the subject Application.
34He referred to the Site Plan and elevation drawings (Exhibit 1), prepared by Destil Design Inc., explaining both the exterior design and internal floor layout of the two-storey ancillary structure.
35Mr. Szkuc asserted that complying with the angular plane provisions in the Zoning By-law was not possible and that the three associated variances are necessary to justify the viability of the project.
36He maintained that he had undertaken numerous conversations with the neighbour immediately to the north of the subject property about the proposed garden suite, specifically discussing the proposed fenestration on the north elevation. As a result of this dialogue, the Applicant revised the application by eliminating the windows on the north elevation.
37Nevertheless, despite this “amicable” (his term) dialogue with his neighbours, he expressed surprise at both the amount and ferocity of opposition to the proposed garden suite even though, in his opinion, the revised design would result in the least amount of impact on the neighbourhood.
Parties in Opposition
38Parties Haggan-Babic, Ralph, Warwick, and Lala and Andrew Schultz all read from their Witness Statements (Form 12), which were filed with the TLAB by the requisite due date in the Notice of Hearing. Each of the Parties identified similar concerns and issues with the proposed development and the requested variances.
39Parties Lala Danute Schultz and Warwick, who would be most impacted by the proposal due to their proximity to the subject property, expressed common concerns with the overall size of the garden suite on what they characterized as a relatively small lot.
40They questioned whether the City had completed a comprehensive review of the overall redevelopment of the property given the recently constructed 4-plex and the proposed garden suite and asserted that the proposal would result in impacts of overlook, shadowing, and stormwater run-off.
41They also identified parking and congestion as issues of concern, as did Parties Haggan-Babic and Ralph.
42Party Andrew Schultz, who noted that his family home was at 4 Oakfield Drive, immediately to the east of 699 Royal York Road, but who has now moved to a different Etobicoke neighbourhood just south of the subject property, submitted that the proposed garden suite would “…not fit with the style and character of the neighbourhood” if the Application were approved.
43The consensus expressed amongst the Parties both through oral testimony and written statements was that the TLAB should not grant the variances requested by Mr. Szkuc.
ISSUES AND ANALYSIS
44A hearing before the TLAB is a hearing ‘de novo’ under s. 45(18) of the Planning Act (Act), meaning the entire application that was before the COA must be considered anew.
45The burden is on the Applicant to prove its case and to satisfy the Tribunal that the application before it meets the four statutory tests mandated by s. 45(1) of the Act.
46In other words, for the requested variances to be approved, the TLAB must be satisfied that all four statutory tests have been met.
47The TLAB is committed, within its mandate, to sustaining an accessible forum within which appeals are heard and decisions made in the resolution of land use planning disputes. On occasion, this means that latitude will be accorded to those who are self-represented and those who are not familiar with or who admit inexperience with the TLAB's appeal process.
48However, this does not suggest that a Party who elects status and is involved in a hearing before this Tribunal, especially, an applicant and/or appellant, is excused from the basic responsibilities and respect that must be accorded to the hearing process.
49As I noted for Mr. Szkuc at the commencement of the Hearing, the TLAB has numerous resources both on the Tribunal’s website and elsewhere, that are available to assist the public and practitioners in understanding what an appeal hearing entails and the obligations of Parties, particularly an applicant and/or appellant, in that process.
50While the principles of administrative law or good community planning, for that matter, might not be common knowledge, even the most cursory research would confirm that the basis for granting variances to a zoning by-law in Ontario, whether at the Committee of Adjustment or via an appeal to this Tribunal, rests solely on the Applicant satisfying the four statutory tests in s.45(1) of the Act.
51That is, do the requested variances: maintain the general intent and purpose of the Official Plan and Zoning By-law; are desirable for the appropriate development or use of the land; and are minor in nature?
52Simply put, it is the Applicant’s responsibility to provide the TLAB with the evidence necessary to enable the Tribunal to make the necessary findings required, within its mandate as defined in the Planning Act, and arrive at a decision.
53Mr. Szkuc did identify an expert witness, Mr. Rabianski, who filed an Expert Witness Statement with the TLAB. However, Mr. Rabianski did not attend the Hearing due to a family matter. He is an architect and the Principal of Destil Design Inc., the company that designed the proposed garden suite. If he had attended the Hearing and been qualified by the TLAB as an expert, his opinion evidence would have been restricted to the area of architectural design.
54At the outset of the Hearing and in light of Mr. Rabianski's absence, the Appellant was given an opportunity to file a Motion for the TLAB’s consideration requesting an adjournment of the matter to a date on which Mr. Rabianski could attend.
55Ultimately, Mr. Szkuc declined to consider filing such a Motion and requested that the Hearing proceed as scheduled.
56Given that the TLAB needed to hear land use planning evidence with respect to this matter, the Tribunal advised Mr. Szkuc of its concern that he attended the Hearing without a witness who could be qualified to provide expert testimony on land use planning matters.
57Mr. Szkuc advised the Tribunal that he thought his testimony would be sufficient given that he already lives in the neighbourhood and the proposed redevelopment of the subject property would allow him to accommodate the long-term housing of his extended family.
58The evidence presented by Mr. Szkuc in this matter consisted of comments regarding the proposed development from primarily an architectural perspective with absolutely no planning support for the three variances being sought.
59He provided no evidence of any consequence to support the TLAB granting the variances requested either from the perspective of the four tests or any planning context for that matter.
CONCLUSION
60The Appellant did not come to the Hearing prepared to provide the land use planning evidence required for a ‘de novo’ hearing. As a result, the TLAB had no land use planning evidence before it upon which to determine whether each of the requested variances met the four statutory tests under s. 45(1) of the Act, and, further whether the variances were consistent with the PPS and conformed to the Growth Plan.
61Mr. Szkuc failed to consider or assess the requested variances within the policy context of the Official Plan and provided no evidence as to whether the variances individually and cumulatively, maintain the general intent and purpose of the Zoning By-law, are desirable or minor.
62Given the lack of any planning evidence for the TLAB to rely upon, I find that the Appellant has not satisfied the burden of proof upon which the Tribunal could authorize or grant the variances in any respect.
DECISION AND ORDER
63The Appeal is refused, and the requested variances are not authorized. The decision of the Committee of Adjustment issued on April 11, 2024, for Case File Number A0089/24EYK, is confirmed.
D. Lombardi
TLAB Chair, Panel Member