Sedlasek (Re), 2025 ONTLAB 308

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9

Date: 2025-03-03 23 238684 S45 03 TLAB Sedlasek (Re), 2025 ONTLAB 308

INTERIM DECISION AND ORDER

Issuance Date: March 3, 2025

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): VESNA SEDLASEK

Applicant(s): VESNA SEDLASEK

Property Address: 29 Lake Promenade

COA File No.: 23 193714 WET 03 MV (A0347/23EYK)

TLAB Case File No.: 23 238684 S45 03 TLAB

Hearing Date(s): February 10, 2025, February 25, 2025, March 24, 2025

Decision Delivered By: TLAB Panel Member B. Gallaugher

REGISTERED PARTIES AND PARTICIPANTS:

People Type	First Initial. Last Name	Representative
Applicant	V. SEDLASEK	I. FLETT
Appellant	V. SEDLASEK	I. FLETT
Party	LONG BRANCH NEIGHBOURHOOD ASSOCIATION (LBNA)	J. GIBSON
Party	CITY OF TORONTO	U. GAUTAM
Participant	S. PEARSON
Participant	A. CHOLES
Participant	C. MERCADO
Participant	B. NEMOY
Participant	A. HUTKA
Participant	H. TWOMEY

INTRODUCTION AND CONTEXT

1This Interim Decision and Order pertains to an Appeal from a decision of the Committee of Adjustment regarding a Minor Variance application for 29 Lake Promenade, Toronto.

2This Interim Decision and Order grants an Adjournment of the Hearing until March 24, 2025, to give the City of Toronto an opportunity to engage an Expert Witness to replace Mr. Mascioli, the City’s Witness, who the Toronto Local Appeal Body (TLAB) Panel Member did not qualify as an Expert Witness by the Panel.

THE LEGISLATIVE AND POLICY FRAMEWORK

3The TLAB’s Practice Direction No. 6 addresses the subject of Expert Witnesses. I provide the relevant sections below:

“An expert is a person who may, with approval of the presiding Member, give opinion evidence before the TLAB.

Experts do not need to have a particular degree or designation; they do not need to belong to a college or adhere to a formal Code of Conduct, in order to be an expert. An expert may be someone who has relevant:

• Skill;
• Knowledge;
• Training;
• Expertise;
• Certification; and or
• Education

Qualifying an Expert before the TLAB

Parties are permitted to ask questions of a proposed expert, and to make submissions, prior to an expert being qualified to give expert opinion evidence. An opposing Party might, for instance, wish to ask questions regarding the proposed expert’s qualifications or experience…

If a Party intends to challenge or raise issues with respect to the impartiality of a proposed expert, or to suggest potential biases, for example, it is good practice to consider providing an opposing Party with advance notice of the intention to do so. This can avoid potential delays and disruption to the process and to the Parties’ expected plan for that day’s appearance before the TLAB.

At the end of this qualification process the TLAB Member will make a decision as to whether to allow the proposed expert to give opinion evidence and will identify and define the expert’s area of expertise for the proceeding.

4The TLAB’s Rules of Practice and Procedure provide, at Section 16.13, that “An Expert Witness Statement shall include:

b) the expert’s qualifications, employment and educational experiences in his or her area of expertise;”

5With regard to Adjournments, Rule 23.3 of the TLAB’s Rules of Practice and Procedure (Rules) provides “In deciding whether or not to grant a Motion for an adjournment the TLAB may, among other things, consider:

a) the reasons for an adjournment; b) the interests of the Parties in having a full and fair Proceeding; c) the integrity of the TLAB’s process; d) the timeliness of an adjournment; e) the position of the other Parties on the request; f) whether an adjournment will cause or contribute to any existing or potential harm or prejudice to others, including possible expense to other Parties; g) the effect an adjournment may have on Parties, Participants or other Persons; and h) the effect an adjournment may have on the ability of the TLAB to conduct a Proceeding in a just, timely and cost-effective manner.

6Rule 17.2 indicates that “Where a Party has obtained from the TLAB an adjourn-to date and all Parties consent to an adjournment request and all Participants have been notified of the request no motion is necessary and the TLAB may issue a revised Notice of Hearing.”

SUMMARY OF EVIDENCE

7On the second day of the Hearing (February 25, 2025), cross-examination of the applicant’s witness was completed.

8After an Opening Statement by Ms. Gautam, solicitor for the City of Toronto, she called her witness, Mr. Mascioli, and asked that he be qualified as an expert to provide professional opinion evidence in the area of land use planning. Mr. Mascioli was affirmed.

9Mr. Mascioli’s Witness Statement was marked as Exhibit 6 and his Reply Witness Statement as Exhibit 7.

10Mr. Mascioli had provided a signed “Acknowledgement of Expert’s Duty (Form 6).”

11Mr. Mascioli reviewed his qualifications and explained that the City of Toronto currently employs him as an Assistant Planner, and he has held that position since March 2024.

12He is not a member of the Canadian Institute of Planners (CIP) or the Ontario Professional Planners Institute (OPPI), nor has he made an application to these professional bodies for membership. He correctly noted that membership in these organizations is not a requirement to practice as a planner in Ontario.

13He said that he has not applied to CIP or OPPI as those organizations require applicants to hold a university degree, which he does not have). He indicated that he is “a couple of courses short” of a Political Science and Economics degree from the University of Toronto. He has not taken any steps to complete that degree.

14He joined the American Planning Association (APA) in 2019 and became a member of the American Institute of Certified Planners (AICP) in 2023.

15He has worked for land development and planning consulting companies in the past, on projects in Canada and the United States. This American work was part of his rationale for obtaining membership in the APA and AICP.

16He said that he had worked for a City of Toronto councillor and a federal Member of Parliament and contended that this had given him exposure to land use planning issues.

17Mr. Mascioli stated that he has over 21 years of experience in land use planning but, in response to questioning by Mr. Flett, Mr. Mascioli agreed that the 21 years was not continuous.

18Mr. Mascioli stated that he had provided testimony before the Ontario Land Tribunal (OLT) and its predecessor, the Local Planning Appeal Tribunal (LPAT). However, upon questioning by Mr. Flett, Mr. Mascioli agreed that he had not been qualified by those Boards as an Expert Witness.

19Mr. Mascioli was not involved in this case at the Committee of Adjustment stage. The planner who was handling the case at that time was not available for the present TLAB hearing.

ISSUES AND ANALYSIS

20Ms. Gautam asked that her witness be qualified as an Expert Witness based on his relevant work experience and the fact that he was hired as an Assistant Planner by the City of Toronto.

21Ms. Gibson, representing the Long Branch Neighbourhood Association (LBNA) did not object to the TLAB qualifying Mr. Mascioli to provide expert planning opinion in the matter at hand. She felt that the quality of Mr. Mascioli’s Witness Statement reflected his knowledge of the subject.

22Mr. Flett, however, strongly objected to Mr. Mascioli being qualified as an Expert Witness.

23Mr. Flett pointed out that in Mr. Mascioli’s Witness Statement (Exhibit 6), Mr. Mascioli had written that he had “provided expert planning witness testimony before the Land (sic) Planning Appeal Tribunal PL180162, PL190547 and OLT-22-002148.” Under questioning by Mr. Flett, Mr. Mascioli admitted that this statement was not true. In fact, Mr. Mascioli had appeared as a witness before the Local Planning Appeal Tribunal and its successor the Ontario Land Tribunal (OLT), most recently in 2022, but had not been qualified as an Expert Witness by either tribunal.

24In the OLT’s decision in OLT-22-002148, the Presiding Member made the following statement: “The Tribunal also notes that while Mr. Mascioli presented himself as a professional land use planner, he was not proffered by the Applicant as an expert in his field. As a result, his evidence was limited to factual evidence”.

25Mr. Flett stated that honesty is a fundamental requirement of the adjudicative process. He felt that the fact that Mr. Mascioli made an untrue statement in his Curriculum Vitae (CV) calls into question the trustworthiness of the evidence he may provide at this Hearing.

26In addition, Mr. Flett noted that the Code of Conduct of the CIP and OPPI would not apply to Mr. Mascioli, as he is not a member, and any similar code that governs members of the APA and AICP would not be enforceable in Ontario.

27In this regard, I find Mr. Flett’s submissions persuasive. Mr. Mascioli does not hold a planning degree or other academic certification in urban planning. In fact, he has not completed any post-secondary degree and has taken no steps towards obtaining one in this field of study.

28In addition, he is not a member of the CIP or OPPI and therefore not subject to their Code of Conduct. He also has not taken any action to obtain membership in those professional organizations, even though these organizations do offer candidates without a university degree an opportunity to have their experience evaluated as an alternative.

29While he does hold membership in various American planning organizations, the application of their codes of conduct in Ontario and the qualifications needed to gain membership are unknown.

30His experience in the land use planning field is somewhat dated and the depth of it is unclear to this Panel Member. His relatively recent hiring by the City is not sufficient to overcome this deficiency.

31Perhaps most telling of all is the false statement in his CV stating that he had been qualified as an Expert Witness by the OLT. I find this damages Mr. Mascioli’s credibility.

32Taken as a whole, I find Mr. Mascioli’s qualifications, or lack of same, do not meet the criteria laid out in Practice Direction No. 6 and the false statement in his CV contravenes Rule 16.13.

33Therefore, I am unable to qualify Mr. Mascioli as an Expert Witness for the reasons given above.

CONCLUSION

34Ms. Gautam indicated that the City did not wish to proceed without an Expert Planning Witness.

35Ms. Gibson said she did not want to present her case before the City presented its evidence.

36Given this situation, I suggested that an adjournment would be appropriate. The Panel Member may make this determination, as provided for in Rule 17.2.

37In coming to this decision, I considered all the criteria laid out in Rule 23.3. The adjournment is granted in the interest of fairness, to allow the City to engage another Expert Witness and give that person a chance to become familiar with the case and prepare a Witness Statement.

38I also find that an adjournment will not have a significant negative impact on the timeliness of the Proceeding.

39All the parties agreed, although Mr. Flett suggested that the City could have anticipated this situation and prevented this delay.

40I would draw Mr. Flett’s attention to the paragraph in Practice Direction 6 which suggests he could have informed Ms. Gautam of his intention to challenge the qualifications of her Expert Witness.

DECISION AND ORDER

41The TLAB will not qualify Mr. Mascioli as an Expert Witness to provide opinion evidence in the area of land use planning in the subject Hearing.

42The Hearing is adjourned on consent until March 24, 2025.

43March 24, 2025 has already been reserved for a continuation of this hearing matter and a Notice of Hearing has been issued, so no further Notice is required.

44The City of Toronto will submit the Witness Statement from its Expert Witness to the TLAB and all the Parties by the end of the day on March 11, 2025. No extensions on this deadline will be granted.

45The replacement Witness Statement from any new Expert Planning Witness to be proffered by the City will not introduce any evidence not related to the documents in the existing Document Book.

46The TLAB may be spoken to if any issues arise.

B. Gallaugher Panel Member