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Numbers Count: The Power of Data

One of the things we learned from all the COA and TLAB hearings we’ve been involved in is how to counter the arguments the builders’ planners use to suggest their clients’ proposals “fit” with neighbourhood character.

Our first exposure was one planner who regularly trotted out large colour-coded maps of the neighbourhood. The colours on his maps represented lot frontages and sometimes density (or FSI).

The idea is that if what the planner’s client is proposing is similar to a colour coded category that seems prominent, then it is a fit.

Colour coded map created by a professional planner, depicting lot frontages for a section of Long Branch.

While we would have liked to replicate this kind of presentation, we didn’t know how to get the data that allowed these maps to be created.

Where to Find the Data

I asked the Secretary-Treasurer of the COA how I could go about obtaining property data and she referred me to someone in Planning who managed the data. The person I dealt with was very helpful, asking what kind of data I wanted and for which streets in the neighbourhood. She quoted me a price for the data I specified and I had an Excel spreadsheet in a couple of days.

The spreadsheet I received was a single file with the data sorted by street address, and it had not only frontage, but also lot depth, lot area, tax roll number and more.

Once data is in Excel, it can be sorted in many ways – by street, by lot frontage, FSI and combinations thereof.

Numbers vs. “Impression”

The first practical application of data analysis was in the case of 38 Thirty Sixth Street, the first Long Branch case to be heard by the TLAB.

In this hearing, the parties were the City and the Builder, who wanted to sever the property and build two oversized homes. The builder was appealing a decision by the COA to refuse his application and had retained a high-priced lawyer to represent him.

On the first day of the hearing, the builder’s lawyer took up most of the day with her expert planning witness, who brought up and read page after page of policies and regulations. I don’t recall seeing much data. After being cross-examined by the City, it was approaching 3:00 when the Chair announced there would be another day of hearings and sought agreement on the dates from the lawyers. When they decided upon a date, I raised my hand and indicated that I would be out of the country on business on the chosen date and asked if I could present before the hearing was adjourned for the day.

The Chair asked if I could present my evidence in a half-hour and I said I could.

I was sworn in and presented a series of PowerPoint slides that illustrated the analysis I had performed on the neighbourhood. Here’s an example of one of the slides.

Chart showing distribution of densities of homes (FSI) on a street in Long Branch

The slides I presented completely undermined the case the builder’s planner had presented. She only asked me two questions in her cross-examination of me. “You’re not a professional planner, are you?” To which I replied, “No. I’m a professional engineer and an expert in analyzing data”.

The data analysis was cited as a factor in the TLAB decision refusing the application.

I don’t know what exactly transpired on the second day of that hearing, but the City would have presented their case and their planning witness, and I know several neighbours spoke on behalf of the residents.

Since then, we have used the same approach to analyzing property data in every TLAB case in which the LBNA was involved. When I have been a Participant, I’ve presented similar charts. Christine Mercado, our Chair, has presented graphics similar to what the builder’s planning witnesses have prepared. Here’s an example:

Colour coded map of a section of Long Branch illustrating property frontages.

Amalgamation of Data

When we started out, we had to purchase property data piecemeal from the City, and we frequently saw overlaps where we had clusters of severance applications in certain pockets of Long Branch.

We felt it would be helpful to organize all the data we’d purchased into a single database and we set this up in a cloud-based database app called AirTable, so that we could share the data with others. We now have over 1800 properties in our database, covering most of Long Branch.

Are the Data Out of Date?

Something the builders’ Planners sought to do to discredit our data was to claim that the City’s property data are out of date. They claimed they had better quality data that they manually updated through building permits and minor variance applications.

The truth is, the Planners all had to start out by buying data from somewhere – namely the City. The City’s property data comes from MPAC, the provincial body that maintains records on property valuations that municipalities use as the basis for assessment for property taxes. It is highly unlikely the City would want to allow that data to become out of date because it would impact tax revenue.

In addition, the public can access applications for minor variances and the resulting decisions from what is called the Application Information Centre in the City’s website. So we were able to update our AirTable entries as such decisions were made. Similarly, building permit applications are also publicly accessible through the City’s website and, more importantly, we have residents on the ground who are aware of construction activity such as renovations and additions to help us keep our data as current as the Planners’.

Conclusion

Data are facts. Hard evidence. They are more than opinions or “overall impressions” And they allow ordinary residents to present compelling evidence that effectively counters the opinion evidence that professional planners are allowed to present.

They help level the playing field.

Admittedly, analyzing data can be tedious. But, if you are comfortable with Excel and PowerPoint, you can create some compelling charts that can effectively challenge what builders’ planners can present.

And the LBNA is here to help with advice.

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TLAB: Party vs. Participant

What’s Right for Me?

If you find yourself involved in a TLAB appeal, you will find there are two types of role to choose from: Party or Participant.

Participant

For most residents involved in a TLAB hearing, the choice is easy. You register as a Participant.

This means you have an opportunity to speak, under oath, during the hearing and to present evidence. Your evidence can be photos, PowerPoint presentations or you can just express your concerns about the development proposal.

As a Participant, you may be cross-examined by the lawyer representing the builder or developer.

Party

A Party is a special kind of status at a TLAB hearing.

Parties are allowed to call witnesses. They can compel someone to testify by summons. They can participate in negotiations. They can cross-examine witnesses. Only Parties can give opening and closing remarks. And, in the event you wish to challenge a decision made by a TLAB member, only Parties can submit a Request for Review.

Normally, the builder will be named as a Party and the builder will be represented by a lawyer. Effectively, being a Party gives you the same kind of standing at a TLAB hearing as a lawyer.

Having said that, the best way to act as a Party is to do what the lawyers do.

Remember, if you are not registered with TLAB either as a Party or as a Participant, you will not have the opportunity to have your voice heard.

We believe that a key factor why residents lost so many appeals to the OMB is that they did not have Party status. They “didn’t have a seat at the table”.

This had two impacts.

Most importantly, by not having Party status, residents could not cross examine builders’ witnesses to uncover the fabricated “truths” they told. Builders could present very strong cases without having to be held accountable when facts got exaggerated or how they interpreted policies. Under these circumstances, the builders’ planning witnesses are allowed to submit what is called “Opinion Evidence” and they have to be registered as Expert Witnesses to be able to do so. We describe this further below.

Secondly, in cases where the proposed solution was mediation – in other words a negotiated agreement without having to resort to a full hearing – residents were excluded from the discussions. As a result, residents’ concerns were not taken into consideration.

In many instances, the City of Toronto has been a Party at OMB and TLAB hearings. Some residents might think that this means their interests are being protected by the City.  However, the truth is that the City’s legal teams are there to ensure the outcome is in the best interests of the CITY – not the best interests of the residents.  This misconception may be a reason why so few Long Branch residents assumed Party status at the OMB.

The LBNA was unable to assume the role of Party at TLAB until we were incorporated. This is a legal requirement for an organization to represent the interests of a group of unrelated people.

The first two Long Branch TLAB hearings – 38 Thirty Sixth and 9 Thirty Eighth – proceeded without the LBNA being directly involved. No residents were Parties for 38 Thirty Sixth, which we won for reasons we’ll describe in our next post. In the case of 9 Thirty Eighth, I elected to be a Party.

Given how 9 Thirty Eighth played out, had I not taken out Party status, the lot across the street from me would have been severed and two soldier houses would have been built. And three significant trees would be gone. Only by being a Party was I able to submit a Request for Review of the original decision.

Another Long Branch resident, David Godley, tried to submit a Request for Review on 9 Thirty Eighth, but his submission was rejected because he was a Participant/witness and not a Party.

There are some responsibilities that come with Party status.

The person or organization who is the Party basically quarterbacks the presentation of the case. Usually this means getting neighbours to register as Participants and to figure out what evidence needs to be presented as who will present it (and in some cases, the order of presentation). If a case goes to mediation, you will have to solicit and present the interests of the neighbours to realize an outcome that’s acceptable to them.

You have to dedicate the time to be present at all times during the hearing. This may mean using vacation time or sick days to be able to do so. The reality is that most of us have jobs and careers, so it’s a challenge to do so. But remember, it’s usually a one-off situation and it’s an important part of being active in your community.

You may have to file motions to change hearing dates or to call witnesses.

During the testimony of the builders’ witnesses, you should be taking careful notes of what is being said and do some fact-checking to prepare for cross-examination.

In the cases in which the LBNA has been a Party, several of the directors have been actively involved in appearing before TLAB tribunals on behalf of Long Branch residents. Judy Gibson, our co-chair, has done the lion’s share. None of us are trained lawyers, yet we managed to win 18 straight cases at TLAB.

Importantly, by conducting ourselves professionally and following the same rules and procedures as the lawyers, the LBNA, I believe, earned the respect of the TLAB chairs we appeared before. And the arguments we presented were respected and ultimately accepted.

Witnesses

There are two basic types of witnesses commonly used in TLAB hearings: Participant witnesses and Expert Witnesses.

We described above how Participants can play a role as witnesses.

The other primary type of witnesses are Expert Witnesses.

Expert witnesses are subject matter experts – that is, they have detailed knowledge and experience in some kind of field. In the case of TLAB hearings, they usually are Professional Planners and Arborists

Expert witnesses have to provide background information about their qualifications as experts in their fields – education, experience.. They also have to submit a form that states they will provide evidence that is non-partisan and objective and that they will provide opinion evidence only on matters that are related to their area of expertise.

Expert witnesses usually present factual evidence showing some degree of analysis. But, in their roles as Experts, they are entitled to offer Opinion Evidence – i.e., conclusions, observations that may not be 100% supported by the facts.

Only Expert Witnesses can submit opinion evidence for consideration by the tribunal. While Participants have and express opinions about a development project while under oath, those opinions are by far outweighed by those of the Expert Witnesses. And it is likely for this reason that, while Long Branch residents may have offered opinions at OMB hearings, those opinions were dismissed by the adjudicator.

In the coming weeks, we will be posting on other topics related to things we learned from TLAB. If you find this series of posts helpful, we could compile the posts into a white paper or e-book you could download for future reference. Let us know.

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9 Thirty Eighth – Leave to Appeal

In August 2018, I was working in my front yard when someone approached me and asked me if I was Ron Jamieson. He then served me with legal papers indicating that the owner of 9 Thirty Eighth intended to appeal the TLAB Review Decision to Divisional Court. The City of Toronto was also named as a respondent.

The lawyers acting for the owner made a number of claims against me for the manner in which I submitted my Request for Review. Not being a lawyer, I had submitted my Request in the form of a notarized letter, not the formal Affidavit used by lawyers. They claimed I had submitted my Request one day late and that I had continued to file evidence after that.

They also claimed Errors in Law on the part of the TLAB Chair, Ian Lord, in conducting his review. They claimed Mr. Lord had conducted a re-hearing of the case on his own, without inviting input from any of the parties involved.

Finding a Lawyer

At this point, I had to make a decision – to cave in and not oppose this or to continue the fight. I chose the latter, but realized I would need a trained lawyer to represent me because I was not familiar with the processes used in Divisional Court and the lawyers for the builder were arguing points of law that I was not knowledgeable enough to even remotely consider representing myself.

Finding a lawyer was not easy. The required area of expertise was municipal and administrative law, not planning or real estate law and I found the number of lawyers who practice in these areas is small. As I contacted lawyers in these fields, some indicated they had no experience at Divisional Court, so did not feel comfortable taking on my case. Others indicated they tended to represent only builders and did not want to risk alienating their client base.

I probably spoke with more than two dozen lawyers before being referred to one who agreed to meet with me for a free one-hour consultation.  He outlined the main issues and risks involved and proposed a retainer agreement. I accepted his retainer agreement.

The Appeal Process

My lawyer described the process of an Appeal to Divisional Court.  First, there would be what is called a Motion Hearing at which a judge would hear arguments from both Parties and determine if there was merit in proceeding to the next step, which would be another hearing, but before a panel of three judges, who would make the final decision. If the judge in the motion hearing did not feel there was merit in the builder’s case, that would be the end of the matter.

My lawyer then contacted the builder’s lawyer to confirm he was representing me and requested copies of their filings with Divisional Court. These were sent to him via email and hard copies via courier. I asked if I could get a copy to review and my lawyer sent me the hard copies he had received since he had electronic copies of all the files he had received by email. What I got was a 6-inch-thick stack of documents in 4 volumes.

I went through one of the volumes – the Motion Record, which is basically a compilation of all the documents submitted to TLAB by the builder’s legal team. While the Motion Record contained evidence submitted by the builder’s legal team and the City, it contained none of the evidence presented by the residents.  I don’t know if this was because none of the presentation material used by the residents was accepted as Exhibits or because I didn’t know I should have asked for them to be submitted and accepted as exhibits. In any event, the lack of hard evidence presented to the hearing by the residents could be construed as a serious oversight by not providing the Courts all of the evidence considered by Ms. Burton or the TLAB chair in making their decisions.

Going through the Motion Record, I came across a letter to the TLAB dated June 26, 2018 in which the lawyer for the builder asked for my Request for Review be denied.  However, in writing his letter to TLAB, the lawyer for the builder did not copy me or the City’s legal team.

I found this letter especially disturbing.  I was completely unaware that the builder’s lawyer had formally submitted objections to my Review Request. By failing to copy me on his letter, I was deprived of the opportunity to rebut and defend my actions.

And yet, in their Notice of Leave to Appeal, the document that outlines their statement of claim, they argued that they expected “an opportunity to provide a fulsome response” to my request. Had I received a copy of their letter, I certainly would have elaborated on my Review Request, and the City might also have wanted to submit their views had they been notified.

The Motion Hearing

In a January 31, 2019 Motion Hearing before a judge in Divisional Court at Osgoode Hall, the Judge, Justice Corbett, dismissed all but two of the builder’s claims. He felt there were arguments to be made about whether the manner in which the Review by TLAB was conducted – Procedural fairness is the legal term – and the Standard of Review Mr. Lord applied. This effectively allowed the appeal to move to the next stage, a hearing before a panel of 3 judges.

Subsequent to Justice Corbett’s decision, TLAB applied for and was granted what is called Intervenor status. Because the case centred on a decision made by the TLAB, obtaining Intervenor status allowed TLAB to present arguments at the final hearing so that they could effectively tell their side of the story.

The Appeal Hearing

The full hearing was scheduled for March 19, 2020, but postponed because of the outbreak of COVID-19. Instead, the full hearing took place via videoconference on February 28, 2022.

At this hearing, counsel for the owner reiterated what they had presented at the Motion Hearing; the validity of my Request for Review and Mr. Lord’s alleged re-hearing.

Counsel for the City presented arguments about the process Mr. Lord used to conduct his review, which was a detailed decision and analysis on his part. They also submitted that, while my Request for Review did not follow the format a lawyer would use, it met all the requirements of a Review submission and had been notarized by a lawyer.

Lawyers representing TLAB at the hearing also presented the same arguments and that Mr. Lord was following the process prescribed in TLAB’s rules to determine whether there were any irregularities in the process Ms. Burton followed. Mr. Lord had to listen to the entire recording of the hearing to determine if Ms. Burton had made any procedural errors. This was an appropriate method for a careful review of the hearing, not a re-hearing as alleged by the Builder’s lawyers.

Counsel for Mr. Jamieson defended the Review Request as following TLAB’s rules and that Mr. Jamieson duly notified all other Parties when he submitted his request.

Counsel also informed the Court that the lawyer for the builder had submitted a letter dated June 26, 2018 to the TLAB arguing against my Review Request. The lawyer’s letter was not shared with either of the other Parties – The City or me. My lawyer argued that this letter constituted a Motion and TLAB Rules required that a Party submitting a Motion must inform all other parties.

The Zoom hearing lasted a little over 4 hours.

The Decision

On April 4, 2022, the Divisional Court released a 10-page written decision, ruling that the Chair of TLAB had acted appropriately and within the authority granted to him by the City of Toronto. His Review was thorough and did not treat any of the Parties unfairly.

The Outcome

When people learned about the decision, they usually said to me, “You must be very happy about this”. However, what I actually felt was more like relief. Relief that this was over. Relief that I didn’t have to worry any more about the outcome.

Over the past 4-6 weeks, there was a flurry of activity across the street at #9. A dumpster was there and people were going in and out of the house. The lawn was mowed. (When the owner had rented out to tenants, he hadn’t bothered to provide a lawn mower and told one of the tenants to cut the lawn with a pair of scissors. I took a photo and sent that to his lawyer.) The roof on the garage was repaired.

Two weeks ago, a sign went up in the front yard, indicating the property was up for sale.

Don’t feel sorry for the builder. He’s asking $1.8M and only paid $720K for it in 2014, so he’s made a lot of money while doing nothing to add value to the property.

We’re hoping that the next owner will see that it’s going to be a lot easier to build a single house on this lot than to try to sever and build two.

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