Green (Re), 2024 ONTLAB 269

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2024/10/16

24 185973 S45 12 TLAB

Green (Re), 2024 ONTLAB 269

PRE HEARING CONFERENCE DECISION AND ORDER

Issuance Date:

October 16, 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):

JARED GREEN

Applicant(s):

DEWSON ARCHITECTS INC

Property Address:

70 CLARENDON AVE

COA File No.:

24 149047 STE 12 MV (A0444/24TEY)

TLAB Case File No.:

24 185973 S45 12 TLAB

Hearing Date(s):

October 15, 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

DEWSON ARCHITECTS INC

Appellants

B. PATEL-GREEN & J. GREEN

D. NELIGAN AND M. HELFAND

Party (TLAB)

M. NEEDHAM

INTRODUCTION AND CONTEXT

1This is a matter at the request of the Toronto Local Appeal Body (TLAB) in respect of an appeal of a decision of the Toronto and East York Panel of the City of Toronto (City) Committee of Adjustment (COA) in respect of an application for two (2) variances for the property municipally known as 70 Clarendon Avenue (subject property).

2The COA, in a decision issued on July 3, 2024, refused Variance No. 2 and approved Variance No. 1 subject to the following condition:

The owner/applicant must submit a complete application for permit to injure or remove privately owned tree(s) under Municipal Code Chapter 813, Trees Article III, Private Tree Protection, to the satisfaction of the Supervisor, Urban Forestry, Tree Protection and Plan Review, Toronto and East York District.

3The Appellants, Jared Green and Binita Patel-Green, appealed the COA’s decision to the TLAB, which set a Hearing date for October 28, 2024, to hear the Appeal.

4In the interim, and following the receipt by the Tribunal of an email from David Neligan (Aird & Berlis LLP), the Appellants’ legal counsel, dated September 20, 2024, the TLAB directed the Parties to attend a Prehearing Conference (Prehearing) scheduled for October 15, 2024, as permitted by Rule 21 of the TLAB’s Rules of Practice and Procedure (Rules).

5The Prehearing was held by way of the City’s WebEx Electronic meeting platform. Although the TLAB set aside 1:00 pm to 4:30 pm for the matter, the Prehearing ended at 1:30 pm.

6For the record, the following invitees to the Prehearing were present:

Jared Green and Binita Patel-Green – the Appellants and owners of the subject property;
David Neligan – the Appellants’ solicitor;
Michael Needham – a neighbour who elected Party status in the appeal; and
Raymond Ziemba (SGL Planning & Design Inc.) – Mr. Needham’s planning witness.

7The TLAB’s authority to direct the Parties to attend the Prehearing 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 at a Prehearing.

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.

8Rule 21.6 permits the presiding Panel Member to direct the Parties to come before the TLAB to address procedural matters as outlined in 21.6 a) to f), above.

9In the Appeal in question, the TLAB sought clarification regarding the following specific procedural matters as they relate to the issues raised in Mr. Neligan’s September 20th email to the Tribunal: The Appellants’ request to convert the scheduled contested Hearing to a settlement Hearing; the dates for the submission of requisite documents such as the terms of settlement, revised Site Plan drawings, expert planner’s affidavit, etc.; and other matters that might assist the TLAB in a fair, cost-effective, and expeditious disposition of the Appeal.

10Additionally, Rule 21.6 permits the presiding Panel Member conducting the Prehearing to make any order(s) necessary to give effect to those matters provided for in the Rule.

The Application/Appeal

11The Application that was before the COA sought approval for two (2) variances to permit the Appellants to alter the existing two-and-one-half-storey detached dwelling by constructing a one-storey east side addition, and a rear second-storey deck (above the northwest portion of the existing ground floor roof).

12On July 3, 2024, the COA refused Variance No. 2:

Chapter 10.20.40.70.(3)(C), By-law 569-2013

The minimum required side yard setback is 1.2 m. The altered dwelling will be located 0.31 m from the side (east) lot line.

13The COA approved Variance No. 1, on condition:

Chapter 10.20.40.50.(1)(B), By-law 569-2013

The maximum permitted area of each platform located at or above the second storey of a dwelling is 4 m². The rear second storey deck will have an area of 10.5 m2.

Condition(s) of Approval:

14In the Notice of Appeal (Form 1) filed with the TLAB on July 19, 2024, the Appellants stated that they had worked with their architect and City staff to design an addition to accommodate a new garage in a manner that would be sensitive to their neighbours and minimized the number of variances required.

15They also argued that the COA erred in finding that Variance No. 2 failed to satisfy the four statutory tests in the Planning Act and asserted that their planning witness would demonstrate that the application, in its totality, should be approved.

16It is tautology at the TLAB that an appeal before the TLAB triggers a ‘de novo’ Hearing of the Application, which requires a consideration of the entire application and not parts of a previous decision and means it is viewed ‘anew’ and as if it has not been heard before.

17While the Planning Act does require the Tribunal to have regard for the decision in the first instance, it is not determinant in the TLAB making a decision.

18Under s. 45(18) of the Planning Act, the entire application must be considered, and jurisprudence is clear that the onus is on the Applicant to prove to the TLAB that all the variances requested must satisfy the four statutory tests mandated by the Planning Act.

19The burden lies with the Applicant to prove its case, even where the COA has previously authorized the requested variances.

20The TLAB must be satisfied that the application before it meets the policy and legislative tests mandated by s.45(1) of the Planning Act known as the four statutory tests - that is, that the variance(s) sought:

Maintain the general intent and purpose of the Official Plan.
Maintain the general intent and purpose of the Zoning By-law.
Are considered desirable for the appropriate development of the land.
Are considered minor.

THE LEGISLATIVE AND POLICY FRAMEWORK

21The TLAB is committed to fixed and definite hearing dates and its Rules of Practice and Procedure are understood to enable it to interpret its Rules liberally to secure the just, most expeditious and cost-effective determination of every Proceeding on its merits (Rules 2.1, 2.2, 2.3 and 2.12).

22Rule 19 of the TLAB’s Rules encourages Parties to settle some or all of the issues in dispute and Rule 19.3 allows the Tribunal to conduct an expedited settlement Hearing on the terms of a proposed settlement.

23Finally, its Rules also permit the TLAB to make orders allowing for the filing, service, and disclosure of evidence and documents at any stage in a Proceeding (Rule 16.1).

SUMMARY OF EVIDENCE

24As this was a Prehearing Conference, the TLAB heard no evidence.

ISSUES AND ANALYSIS

25The presiding Panel Member addressed the following matters with the Parties in attendance at the Prehearing.

Proposed Terms of Settlement

26The TLAB advised that any settlement agreement or terms of settlement reached is considered a ‘private’ agreement and the Tribunal is not responsible for administering, enforcing, or implementing any terms agreed to and enshrined in that document.

27Therefore, the Parties must be confident that the agreement, and any terms therein, can be enforced outside of the Tribunal’s jurisdiction.

Conversion of the Scheduled October 28th Hearing

28Mr. Neligan has confirmed, and Party Needham concurs, that the Parties in this Appeal have reached a settlement in principle. As a result, the Parties request that the contested Hearing scheduled for October 28, 2024, be converted to a Settlement Hearing.

29Rule 19.2 of the TLAB’s Rules requires Parties who arrive at a settlement to serve the terms on all the other Parties and the Tribunal, and Rule 19.3 states that the Tribunal shall give notice to all Parties of the date, time and location of a settlement Hearing and, thereafter, conduct an expedited Settlement Hearing on the terms of the proposed settlement.

30Given that a settlement has been reached, the TLAB will convert the October 28th Hearing to a Settlement Hearing as requested by the Parties, pursuant to Rule 19.3.

Hearing ‘De Novo’

31Irrespective of the settlement in principle between the Parties, and the agreed conversion of the scheduled contested Hearing to a Settlement Hearing, the appeal before the TLAB is undertaken as a hearing ‘de novo’ under s.45(18) of the Planning Act, meaning that the entire application that was before the Committee of Adjustment must be considered anew.

32The burden is on the Applicant to prove its case, not from counsel but from ‘viva-voce’ or live opinion evidence from a witness, affirmed and qualified. The TLAB must be satisfied that the requested variances meet the policy and legislative tests mandated by s.45(1) of the Planning Act; that is, that the variances sought:

Maintain the general intent and purpose of the Official Plan;
Maintain the general intent and purpose of the Zoning By-law;
Are desirable for the appropriate development of the land; and
Are considered minor in nature.

Submission of Revised Documents

33Rule 19.2 of the TLAB’s Rules requires the Appellants to serve the terms of settlement on the other Parties and file same with the TLAB.

34Mr. Neligan noted that the settlement reached between the Parties will require modifications to the plans provided through Applicant Disclosure along with an updated zoning certificate to confirm the required variances.

35Consequently, the Appellants did not file witness statements or document disclosure by the required September 23, 2024, due date in the Notice of Hearing (Form 2) issued by the TLAB.

36However, he noted that the Appellants intend to provide the terms of settlement along with a supporting affidavit from their expert planner and updated materials, including a revised Zoning Certificate and revised Site Plan drawings, as soon as the updated materials are available.

37Given that the converted Hearing is scheduled for October 28th and the TLAB requires a reasonable amount of time to review those documents prior to the Hearing, the presiding Member inquired as to whether the Appellants could file the above-reference documents by Wednesday, October 23rd. Mr. Neligan confirmed that this filing date was achievable.

38He also advised that as part of the updated Zoning Certificate, the City had identified new variances in addition to the two considered by the COA and that these would be sought by the Appellants at the October 28th Settlement Hearing as part of a revised Application.

39Finally, Mr. Neligan informed the TLAB that the Appellants would also be submitting a revised Arborists Report dealing with two privately-owned trees on the subject property.

DECISION AND ORDER

40The Hearing scheduled for October 28, 2024, will be converted to a Settlement Hearing as per Rule 19.3 of the TLAB’s Rules of Practice and Procedure.

41The Appellants will serve the terms of the proposed settlement on the other Parties and file same with TLAB by no later than Wednesday, October 23, 2024, along with a supporting affidavit from the Appellants’ expert planner, an updated Zoning Certificate, revised Site Plan drawings, and any other documents in support of the Application.

42The TLAB may be spoken to if any issues arise in this regard.

D. Lombardi

Panel Member