14792670 CANADA INC (Re), 2025 ONTLAB 304

Toronto Local Appeal Body

40 Orchard View Blvd, suite 253

Toronto, Ontario M4R 1B9

Date:

2025-02-18

24 224218 S45 11 TLAB

14792670 CANADA INC (Re), 2025 ONTLAB 304

FINAL DECISION AND ORDER

Issuance Date:

February 18, 2025

PROCEEDING COMMENCED UNDER subsections 45 (1) and (12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant(s):

14792670 CANADA INC

Applicant(s):

PM STRATEGIES INC

Property Address:

30 CHARLES ST E

COA File No.:

24 157944 STE 11 MV (A0529/24TEY)

TLAB Case File No.:

24 224218 S45 11 TLAB

Hearing Date(s):

January 29, 2025

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By:

TLAB Panel Member Y. Herscher

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

PM STRATEGIES INC

Appellant

14792670 CANADA INC

M. OZDEMIR

Party (TLAB)

T. OSMOND

Party (TLAB)

J. COWEN

Party (TLAB)

CITY OF TORONTO

M. LAFORTUNE

Participant

L. WAHL

Participant

J. NAULT

Participant

D. HOLYSH

INTRODUCTION AND CONTEXT

1The Appellant applied to the City of Toronto Committee of Adjustment for two minor variances in order to permit an additional two-bedroom residential dwelling unit in the basement of a multi-residential building located at 30 Charles Street East (subject property). The subject property is located on the north side of Charles Street East, approximately 100 metres east of Yonge Street in the Church-Wellesley neighbourhood.

2The application before the Committee of Adjustment (COA) sought two variances from the City of Toronto’s harmonized zoning by-law:

1. Paragraph (1) of By-law 319-92

Under the zoning by-law, the maximum permitted gross floor area is 1,645 m² and the application proposes to increase the gross floor area to 1,752.3 m².

2. Chapter 200.5.10.1.(1) of By-law 569-2013

The zoning by-law states that a minimum of two visitor parking spaces is required to be provided on-site, and the application seeks to provide for no on-site visitor parking spaces.

3The subject property is a three-storey walk-up rental apartment built in 1914 and is designated under the Ontario Heritage Act to be of cultural heritage value. There are twenty-one rental apartments in the building and six units on each floor (2-two-bedroom units, 2-one-bedroom units and 2-bachelor units per floor). The basement level has 3-two-bedroom units. Historically, the units have been occupied by long-term tenants.

4There is a somewhat murky relationship between the owner (Appellant) and operator of 30 Charles Street East. Jonas Emre (also referred to as Yunus Emre Acikgonul) is listed as a director of 14792670 Canada Inc., the owner of the property. He is also a director and the founder and CEO of Harrington Housing Inc, which describes itself on its website as the leading Canadian co-living provider. Harrington Housing Inc. acts as the operator and management company of the subject property and it lists rooms on its website for short-term weekly rentals, including for 30 Charles Street East. Ultimately, however, the responsibility for all matters related to the subject property lies with the owner, 14792670 Canada Inc.

5The Committee of Adjustment held a hearing and on October 1, 2024, issued its decision refusing the minor variances. The Appellant appealed the decision of the COA to the Toronto Local Appeal Body (TLAB).

6The TLAB issued a Notice of Hearing in respect of the appeal and scheduled a hearing of this matter for January 29, 2025, setting a deadline of November 25, 2024 to submit a Notice of Intention to be a Party.

7At the City of Toronto council meeting of December 17 and 18, 2024, council directed the City Solicitor to attend the TLAB hearing in opposition to the appeal. On December 20, 2024 the City of Toronto, through its legal counsel, filed with the TLAB its Notice of Intention to be a Party.

8The Appellant filed a Notice of Motion on January 3, 2025, seeking an order from the TLAB to dismiss the City’s application for party status in the appeal and to direct the City to refrain from further participation in the proceedings. On January 10, 2025, the City submitted its Response to the Motion, as did the two other parties to the hearing. The Appellant did not file a reply.

9On January 17, 2025, I issued a decision on the motion and granted the City of Toronto party status in the proceeding.

10A hearing was held on January 29, 2025. The TLAB heard testimony from eight witnesses, including an expert architect, a manager for the City of Toronto buildings inspections unit, a multi-residential housing expert on staff at the City of Toronto, and several residents of the building.

THE LEGISLATIVE AND POLICY FRAMEWORK

11Provincial Interest - Section 2 of the Planning Act

A decision of the TLAB shall have regard to matters of provincial interest, as enumerated in clauses 2 (a) through (s) of the Planning Act.

12Provincial Plans and Policy Statements – Section 3 of the Planning Act

A decision of the TLAB must be consistent with the 2020 Provincial Policy Statement and conform to the Growth Plan for the Greater Golden Horseshoe.

13Variance – Section 45(1) of the Planning Act

In considering an application for variance from the zoning by-law, the TLAB must be satisfied that an application meets the four tests under subsection 45 (1) of the Planning Act. The tests are whether the variance,

• is minor,

• is desirable for the appropriate development or use of the land,

• maintains the general intent and purpose of the official plan, and

• maintains the general intent and purpose of the zoning by-law.

SUMMARY OF EVIDENCE

PETER MILCZYN

14The Appellant called one witness, Peter Milczyn, to speak to the application. In response to questions, Mr. Milczyn acknowledged that he did not have an undergraduate or graduate degree in land use planning, had never worked as a land use planner, was not a Registered Professional Planner, was not a member of the Ontario Professional Planners Institute or the Canadian Institute of Planners, and had never been qualified as a land use planner before any tribunal. As a consequence, I declined to qualify Mr. Milczyn as an expert witness in land use planning.

15Mr. Milczyn’s firm is listed as the Applicant for this application and was variously identified as the agent/consultant/representative for the Appellant, not as the expert retained to provide land use planning evidence or, at least, not until some time later.

16While Mr. Milczyn has been involved in planning and development matters as a politician and he has acted as an agent for numerous landowners in their development applications, there are many individuals who have experience in land use planning issues, such as housing advocates or home builders. This does not mean that any one of them, however, absent the proper experience or credentials, should be considered by the TLAB to be an expert in the field of land use planning or be qualified by the TLAB to give opinion evidence.

17Mr. Milczyn was permitted to testify, but I give little weight to his evidence which I found to be light on substantiation and largely irrelevant to the grounds for a decision on the four tests for a variance set out in the Planning Act; that is, whether the proposed variance is minor, desirable for the appropriate use of the land, and whether the variance maintains the intent and purpose of the official plan and the zoning by-law.

18In terms of the zoning for the site, Mr. Milczyn referred to the site-specific zoning by-law 319-92 which provides that the subject property must function only as a residential apartment building, The by-law was put in place to preserve and protect the existing building and to discourage its redevelopment.

19Given that Mr. Milczyn could not lead opinion evidence, he spoke primarily about the existing building structure, the availability of public transit and parking in the area, the nature of the neighbourhood in general, as well as his retainer with the Appellant.

20Mr. Milczyn indicated that he had a very limited retainer regarding the variance application. Although Mr. Milczyn was put forward by the Appellant as an expert in land use planning, he had apparently made no effort to inform himself regarding any past or outstanding Building Code or other municipal code infractions, any ongoing servicing or maintenance issues, the number and status of tenants in the building, construction work in and around the building (either in compliance or non-compliance with any building permits) or persistent complaints by the residents.

21Mr. Milczyn stated that he assumed that the Appellant would conduct a public engagement process, but he never followed up to ascertain whether that had occurred. He did not investigate whether there might be any adverse impacts of the proposal. He testified that he relied exclusively upon what his client advised him and had no knowledge or information beyond the four corners of the variance application.

DINO COLETTI

22There were two witnesses from the City of Toronto who appeared under summons. The first was Dino Coletti, a Manager for Buildings Inspections in the City of Toronto. He was responsible for the area that encompassed 30 Charles Street East up until last year but has since had his responsibilities transferred to another geographic area.

23Mr. Coletti explained that a building permit is required to construct or demolish any part of a building or if there is a change in the use of the building. Mr. Coletti advised that a building permit had been applied for by the Appellant and was granted in 2023 to subdivide the common areas of eight apartment units into smaller common areas. The building permit application and approval did not identify those subdivided living and dining rooms as bedrooms.

24In May 2024, the buildings inspector determined that interior alterations had occurred in three units (entirely different units from the eight units approved under the 2023 building permit referred to above) for the purpose of creating new smaller rooms without the benefit of a building permit. An Order to Comply 24 150315 WNP 00 VI under the Building Code dated May 17, 2024, was issued by the City of Toronto for the subject property.

25That Order to Comply directed the Appellant to submit plans and obtain the necessary permits for the unauthorized construction or, if failing to obtain the necessary permits, to remove all unauthorized construction by June 12, 2024. According to the witness, that Order to Comply is still outstanding for the three units.

26Mr. Coletti advised that an increase in the number of people in a unit means an increase in the frequency of use of the washroom(s), thereby potentially creating a strain on the building’s servicing infrastructure, which is generally designed for a specific capacity.

27Mr. Coletti testified that in October/November 2024, there was an investigation into a raw sewage leak in the basement of the building which was emitting sewer gas. Verbal direction to repair by City of Toronto staff was made to the Appellant, but no action was taken, so an Order to Remedy Unsafe Building 24 239485 UNS 00 VI under the Building Code dated November 15, 2024, was issued by the City of Toronto because of health and safety concerns.

28Under this Order to Remedy Unsafe Building, all basement units affected by the sewage leak were to be vacated immediately. The Order directed that a mechanical engineer had to be retained immediately to prepare a report within the day and to identify the remedial steps to be taken, under the supervision of the engineer, to correct the problem. Occupancy of the affected areas in the basement was prohibited until deemed by the engineer to be safe to occupy.

29To date, this Order to Remedy Unsafe Building is still in place as the problem has apparently not been repaired or fixed.

KONSTANTINOS KALAITZIS

30The second summoned witness was Konstantinos Kalaitzis, who held the position of Multi-tenant Housing Supervisor with Municipal Licensing and Standards in the City of Toronto, with expertise in the zoning of multi-tenant housing. His job was to investigate complaints about rooming houses or purported rooming houses. His office looks into issues such as property standards, heat and waste.

31In response to numerous complaints, Mr. Kalaitzis personally visited the subject property four times. An investigation was conducted from September 2023 – January 2024 regarding allegations that rooms in the apartment units were being rented out to multiple tenants and that the building was being used as an unregulated rooming house. He advised that safety issues can arise if a property is being used by more persons than it is designated for.

32Mr. Kalaitzis explained that a new regulatory framework came into effect in the City of Toronto as of March 2024 which changes the definition of rooming houses. To operate a rooming house (or multi-residential home), the Appellant requires a licence from the City, which entails a zoning conformity and building design review, among other things.

33On November 27, 2024, an Order to Comply 24 243404 RMH 00 IV was issued by Mr. Kalaitzis’ office, which he indicated was based on the evidence gathered, that the subject property was being used as a multi-tenant house without a licence. The Order to Comply directed the Appellant to confirm with the City of Toronto by-law enforcement officer by January 27, 2025 that the Appellant has submitted an application for a licence to operate a multi-tenant house.

34As of the date of the TLAB hearing, no application for a licence to operate a multi-house had been submitted by the Appellant.

ELIZABETH VANDERTUIN

35Elizabeth Vandertuin is a registered and licenced architect currently practicing in Ontario. I qualified her as an expert to give opinion evidence in architectural matters. Mr. Vandertuin was retained by one of the parties, Tanya Osmond, to provide a report on the subject property.

36Ms. Vandertuin stated that the zoning by-law for the property allows for its use only as an apartment building and does not allow for multi-tenant residential use. Her contention is that the Appellant provided false and misleading information when applying for building permits and would not have been approved for the permits had truthful and accurate information been given.

37Ms. Vandertuin found that the work completed in all of the apartment units that had been issued building permits were occupied by unrelated individuals in 3 or 4 bedrooms per unit for short-term rentals, in violation of the site-specific zoning by-law. She measured the “bedrooms” and her opinion was that they lacked proper ventilation and were undersized for bedroom use according to the Building Code.

38One of the three existing basement units was previously the subject of an earlier minor variance approval but, upon visiting the unit, Mr. Vandertuin found that the living room had been subdivided into bedrooms which, again, lacked proper ventilation and were undersized. Ms. Vandertuin’s position was that all new accommodations must comply with applicable laws and codes in order to be safe for the residents.

39The site-specific zoning by-law allows for 30 bedrooms in 21 units in the building. Based on Ms. Vandertuin’s review of the Appellant’s technical drawings of the units, her visits to some of the units and measurements taken, and discussions with the tenants, she estimated that there are currently 65 bedrooms in the 21 units. This poses significant stress on the aging infrastructure of the building. Ms. Vandertuin testified that the owner has demonstrated negligence in the treatment of the building effluent and the provision of heat to the units, and the means of emergency egress from the building has been compromised by construction materials and vehicles, etc.

40Ms. Vandertuin presented several online advertisements posted by the Appellant that seek persons to lease bedrooms (at 30 Charles Street East) in rooms that are designated as living rooms, dining rooms or sunrooms in the original plans or in the building permit approved floor plans of those units. In her opinion, the small size of these rooms and the only means of egress, emergency or otherwise, exclusively through bathrooms are in violation of Building Code requirements.

41Included in Ms. Vandertuin’s document disclosure is Emergency Order 24 238843 FRS 00 IV issued by the City of Toronto under the Building Code dated November 14, 2024. The Emergency Order lists the detailed work that is required to be carried out immediately by the Appellant to clean and repair/replace the heating and plumbing systems which have failed to operate properly, primarily due to the recurrent flooding of raw sewage.

42Ms. Vandertuin stated that construction work on the proposed 2-bedroom unit in the basement has already commenced, without Building Code approval. This action has reduced the tenants’ storage area and forced the relocation of the laundry facilities, but without any overview to determine if the new laundry area is safe or has proper ventilation or drainage.

43Ms. Vandertuin concluded that the Appellant, which acquired the property in 2023, has been altering the property in order to convert it into a rooming house without receiving the appropriate approvals. Upon any of the long-term tenants moving out of the building, those apartments are then internally subdivided and the common living areas in those units have been made into bedrooms. She asserted that there has been disregard for the legal process and for the safety of the residents.

JUSTIN COWEN

44Justin Cowen is a resident in the building and he spoke about the number of tenants opposed to the proposal, the issues with respect to the ongoing lack of heat and hot water, efforts by the Appellant to evict long-term tenants, and non-compliance with the Building Code.

45Mr. Cowen also described how the (as yet unapproved) construction of the proposed new residential unit has eliminated the current laundry room and resulted in a substantially reduced space and difficult-to-access replacement laundry facilities. He also spoke about the strong odour of sewage that has been pervasive in the entire building as a result of the effluent leak in the basement. In a colourful turn of phrase, Mr. Cowen described the situation as a building in chaos.

TANYA OSMOND

46Tanya Osmond is a resident of the building. She spoke about the impact on the livability of her accommodations because of the reduction in storage facilities, arising from the unapproved construction of the residential unit in the basement. Due to the nature of her business, she has relied upon the availability of storage space in the basement, which is supposed to be provided to her under her lease.

47Ms. Osmond also testified that she has visited approximately a half dozen other units in the building (units that were, for the most part, different from those visited by Ms. Vandertuin) and confirmed that the living and dining rooms that were subdivided into smaller common areas, as per the building permits, are in fact not being used as common areas in the units but as bedrooms.

48There have been dozens of property standards complaints submitted to the City of Toronto, including for the periods of times where tenants were without heat and hot water after a safety inspection found multiple serious violations. Ms. Osmond, along with other tenants, has sought legal advice regarding the loss of storage space and has submitted applications to the Landlord and Tenant Board regarding this matter as well as for other concerns, but those have not yet been resolved and are outside the purview of this tribunal.

DAVID HOLYSH

49David Holysh was the first of two residents who elected participant status in the appeal to give evidence. He has lived in the building, on and off, since 2011. He recounted how the residents had no heat for a period of several weeks over the winter of 2023-2024. The heating failed again this winter and Mr. Holysh testified that he has had to pay for space heaters to try and make the apartment minimally habitable and, for some periods, find alternate lodging.

50Mr. Holysh concluded that the Appellant is unable to maintain appropriate servicing standards (heating, plumbing, etc.) in the building for the current tenants, so adding an additional unit and more tenants would only exacerbate the situation and further compromise the residents’ safety and quality of life.

JEFF NAULT

51Jeff Nault, another participant, was the final witness and appeared in support of his fellow residents. He confirmed the testimony of the other residents regarding how the alterations to the building have created stress for the residents and on the building. He recounted how construction work is already being undertaken on the proposed new basement unit, outside of regular working hours.

ISSES AND ANALYSIS

52A hearing before the TLAB is a hearing ‘de novo’ under subsection 45 (18) of the Planning Act, meaning that the entire application that was before the COA is to be considered anew as if the application had not previously been heard. Although the Appellant’s representative made submissions that the lack of a detailed decision by the COA is fundamental to the TLAB’s decision, that argument is not relevant for the purposes of the TLAB arriving at a determination on this matter.

53The Appellant’s representative also contended that because a minor variance was granted previously by the COA to allow for the creation of a similar type 2-bedroom basement apartment, it is incumbent upon the TLAB to treat this application in the same way and approve the proposal. Not only was that variance granted some time ago (2009), but each application must be assessed on its own merits and a previous variance approval is not relevant or helpful to a decision on the matter at hand.

54The TLAB is of the view that it has not been provided by the Appellant with full disclosure about the property and its recent history. The Appellant’s witness asserted that he had no knowledge and declined to respond to questions about the multiple municipal orders issued against the property, the current use of the units in the building or the proposed future use of the building. Given that Mr. Milczyn submitted an expert witness statement and was retained to provide advice to the Appellant on the suitability of the minor variance application, it seems odd that Mr. Milczyn did not inform himself about any of these matters.

55The Appellant has no track record of respecting process and the TLAB, under the circumstances, cannot presume that the Appellant will do so in the future. The TLAB is being asked to approve the creation of a new unit without any assurance that this unit will be used for the purpose for which it would be granting approval (2-bedroom unit). The TLAB is not convinced that the Appellant would refrain from further subdividing the unit into smaller bedrooms for short-term rental purposes. As confirmed by the witnesses at the hearing, work has already commenced to construct this basement unit before a building permit has been issued or any approval given by the TLAB.

56Given the Emergency Order issued by the City of Toronto on November 14, 2024 regarding the sewage seepage and plumbing issues in the basement and the prohibition regarding occupancy in the basement until the problems are resolved, it does not seem prudent from a public health and safety perspective to approve the creation of a new residential unit in the basement at this time.

57However, the TLAB does not intend or need to make its decision based on the lack of good faith by the Appellant, since this decision relies upon the absence of any land use planning rationale for the application. Not only did the Appellant fail to call any land use planning evidence to support the application under the policies of the official plan or zoning-by-law, but the objectors provided evidence that the application is not minor or desirable for the appropriate development or use of the land.

58The basis for granting variances to a zoning by-law, whether at a committee of adjustment or by way of an appeal to the TLAB, rests on satisfying the four tests outlined in subsection 45 (1) of the Planning Act. That is, do the variances being 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 or use of the land, and are they minor in nature?

59The burden is on the Appellant to prove its case and to satisfy the TLAB that the application before it meets the four statutory tests described above. Mr. Milczyn’s evidence in this matter was a very general and high-level overview of the proposed variances with no land use planning support for the variances sought. The Appellant has failed to address these four tests properly or directly from any land use planning perspective.

60Because Mr. Milczyn was not qualified by the TLAB to given opinion land use planning evidence, he was unable to address the variances from the standpoint of the four tests or provide any planning policy context. He also did not provide evidence as to whether the Appellant’s proposal is consistent with the 2020 Provincial Policy Statement or conforms to the Growth Plan for the Greater Golden Horseshoe.

61The evidence did not establish a geographic neighbourhood or a study area for assessment as directed by the official plan. The Appellant did not provide a land use planning review of the applicable official plan policies or any evidence as to whether the requested variances, individually and cumulatively, maintained the general intent and purpose of the zoning by-law.

62One aspect of any variance application is whether unacceptable impacts exist. The evidence presented at the hearing established that that there would be considerable impacts upon the residents, including the increased strain upon the infrastructure resulting in the lack of heating and hot water, the reduction of the storage area, and the alteration of the laundry facilities.

63In addition, there was no land use planning evidence presented to demonstrate that the proposed variances are desirable for the appropriate development or use of the land. All the evidence before the TLAB pointed to the proposal being part of a larger development to convert the apartment building into a multi-residential house.

64Should the Appellant wish to pursue the option of creating a rooming house, then a variance application is not the appropriate process to address the conversion of the subject property into a multi-residential housing building.

65In light of the lack of any land use planning evidence for the TLAB to rely upon, I have no basis on which to find that the variances sought by the Appellant meet any of the four tests outlined in the Planning Act. Therefore, I find that the Appellant has not satisfied the burden in any respect upon which the TLAB could authorize or grant the requested variances.

CONCLUSION

66The TLAB is indebted to all the parties and participants for being mindful of the TLAB’s exhortation to not repeat any testimony and for keeping their evidence brief and focussed. The TLAB would also like to thank the two summoned witnesses for taking the time out of their busy work schedules to provide clear and impartial testimony,

67As stated above, the Appellant has not provided sufficient justification to the TLAB that the requested variances maintain the general intent and purpose of the official plan and zoning by-law or that the requested variances are minor or desirable for the appropriate development or use of the land.

DECISION AND ORDER

68The TLAB orders that the appeal is refused, and the variances are not authorized. The decision of the Committee of Adjustment issued on October 1, 2024, for the case file number referenced above is confirmed.

Y. Herscher

Panel Member