Tag Archive for: Severance

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Defining “Minor Variance”

“Minor Variance” is a vague legal term that indicates only that a design element for a property exceeds a bylaw standard. It is probably the most-argued item in a planning case and usually the debate centres around whether the impact of the variance is or is not minor.

If you’ve received a Committee of Adjustment notice about a hearing for a nearby property, look at the list of so-called “minor variances.” Some may exceed the bylaw by only a few percentage points. But others may exceed the standard by 50%, 90% or more – but they remain “minor” variances.

In our previous post, we informed you that Councillor Diane Saxe of Ward 11 had brought forward a proposal for The Planning and Housing Committee to adopt a bylaw that would clearly define when a variance is too large to be considered minor.

This was discussed at the January 29th meeting of the PHC and ulimately a motion was passed to “explore this topic in more detail”.

Here’s a link to the video recording of the PHC meeting, with attachments.

ISSUES

I have two concerns about this motion.

First, it seems Councillor Saxe’s focus is on high-rise development, where developers try to add significantly more floors to a project than the bylaws permit – ostensibly to increase the number of housing units built. My concern is that minor variances for smaller projects will not receive the same consideration.

Second, creating regulations is the easy part of public administration. If the regulations are not rigorously followed, then all the work that went into creating the regulations is wasted. I do not feel the planning review process – including the COA – is enforced well enough.

DISCUSSION

What seems to be driving Councillor Saxe is (a) ensuring developements in her ward are of reasonable scale (b) that there is a mechanism in place so planners can say “NO” to developers’ proposed heights and (c) a mechanism exists to prevent developers from settling on a height limitation through the COA/TLAB process and then using this as the basis for asking for even higher heights.

There is no question this is a much-needed approach to managing development but, if a bylaw defining limits on high-rise minor variances is implemented, it may be done without giving consideration to application of the same principles to low-rise residential housing. That would be a terrible disservice to ordinary homeowners like us.

If you have ever read through the City’s bylaws, you would find they are actually very detailed and it is very easy to see what is and is not permitted.

When a developer submits plans to the COA, it goes through a review process and a Zoning Review Officer first identifies all variances from bylaw standards, This is pretty much black and white.

The developer then works with a Planner assigned to the proposal. The Planner is supposed to point out the magnitude of the variances and ask why they are needed. (Frequently on the Application Form for a proposal, developers simply say “We can’t work within the proposed standards”). There often is a process of negotiation between the Planner and the Developer to come up with enough of a compromise that the Planner will agree to submit the application to the COA panel for a formal public review.

We have seen too many examples, here in Long Branch, where Planners did not seem to push back hard enough against developer demands and sent proposals with large variances to the COA. A bigger concern would be if their managers overruled the Planners and asked them to submit anyway.

So much for the process that occurs before an application makes it to a Committee of Adjustment hearing.

We looked at the Etobicoke York COA’s disposition of applications from 2011 to 2018 and saw a distubing pattern.

Etobicoke York COA Decision Analysis 2011 - 2018 "Minor Variance"

From 2011 to 2015, the COA approved just under three-quarters (75%) of the residential applications they reviewed. In 2015, the committee members approved EVERY application presented to them.

If you were to look at the correspnding years for the OMB, you would find a similar pattern – including 2015, where the OMB upheld every one of those COA approvals.

In my own case, four members of the COA (the entire panel on that particular date in 2019, saw no problem in unanimously approving a severance proposal with 5 minor variances despite recommendations to refuse from the Planner who reviewed the file, Urban Forestry and Councilor Mark Grimes. They chose to ignore the arguments of the residents who wrote letters of objection and who appeared before them. They didn’t have to explain what led them to overrule what Planning had recommended (i.e., a refusal)

You probably would think an appeal would provide an opportunity to question the COA panel members to get some insight into their decision.

However, what the City offers as an “appeal” is actually a whole new hearing before the Toronto Local Appeal Body. A TLAB hearing is not limited to the 5-minute deputations allowed under the COA process. Witnesses can talk much longer than that. A TLAB hearing also is expensive because usually it involves lawyers for the Parties, Expert Witnesses and so on.

Unlike the generally accepted legal concept of an appeal, a TLAB hearing does not examine the COA decision at all. In fact, TLAB rules do not permit Parties to call COA panel members as witnesses – even as hostile witnesses.

In other words, there is no oversight on the COA decision-making process and no real accountability on the part of COA panel members, all of whom are public appointees.

On the other hand, the Planners who reviewed the application CAN be and ARE called as witnesses at TLAB. They can present their reasons behind their analysis and decisions, and they are also subject to cross-examination by the Parties’ lawyers.

Additionally, “appealing” a COA decision to the TLAB can come with a hefty price tag. The lawyer who wrote your will or helped you with closing a house purchase don’t usually have the knowledge of administrative and/or Planning law to be able to represent you effectively. You may need an expert planning witness to help present your case and to help counter the testimony of the expert planner who will undoubtably be called by the developer’s lawyer.

Currently, if you feel a city committee or department has treated you unfairly, your only way to have someone examine the issue is to go to the City’s Ombudsman. While they might find in your favor, the Ombudsman does not have the power to overturn a decision in a City department, only make recommendations to try to avoid a recurrence of the issue being appealed. In other words, it’s an appeal without any real teeth.

WHAT ACTION IS NEEDED?

First, City Planning should discontinue using the term “appeal” with respect to TLAB hearings or explain that a TLAB hearing is a new hearing of the evidence following the same rules of evidence and procedure as one might find in the court system. TLAB hearings are very professional in their approach and there are some outstanding legal minds among the panel members. TLAB hearings are not appeals in the commonly understood legal sense of the word, which suggests there will be a review of the COA decision and the reasoning behind it – and therefore this needs to be more clearly communicated.

Second, Planning should require COA panels to fully articulate the reasons behind their decisions. What currently passes as “reasons” for a COA decision is actually boilerplate text used throughout the City by all the COA panels. The Planning Act requires that COA decisions be published with reasons behind the decisions. But what City Planning offers as “reasons” would not stand up to scrutiny in a court of law.

(By contrast, in the case of TLAB, panel members write up decisions in much the same manner as judges in the court system. They comment on the evidence presented to them and explain in detail how they arrived at their decision.)

Third, City Planning needs to implement some kind of safeguard against COA panel members executing their duties carelessly or with biases. Panel members are appointed, not elected, so the appointment process should include more due diligence on the backgrounds of the individuals under consideration and the ability to discard a decision that has been made carelessly or where some form of bias has come into play. If a decision HAS been made without due care on the part of panel members, it should, at the very least, be subject to a re-hearing by a completely different panel.

Should COA panel members exhibit behaviours that are not consistent with offering residents a fair and impartial hearing, they should be removed from their positions, not just moved to another panel within the City.

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The COA Process Needs Fixing

With the passage of Bill 23 in December, 2022, Ontario residents no longer have the right to appeal a Committee of Adjustment (COA) decision.

This presupposes that the COAs deliver well-thought-out decisions based on evidence and application of existing regulations.

Applications that go before the COA generally fall into one of two broad categories. Minor variance applications typically are for new housing or renovations to an existing home. These are by far the majority. The other category is Consent applications – severances of a property into 2 or more parcels of land for some form of new construction.

The COA Process

When a minor variance application is to go before the COA, formal notices are sent out to neighbouring properties within a 60 meter radius. Residents are allowed to voice opposition by writing letters of objection or speaking before the COA panel during the formal hearing on an application. Often, residents’ concerns are about shadowing of their properties, lack of privacy and the style and/or scale of the proposed structure. Sometimes, there is only one minor variance being requested, but we have seen examples with as many as 8 minor variances.

The COA allows 5 minutes to each resident to express their opinions and concerns. The applicant likewise has 5 minutes to present his/her case, but also have the right to 5 minutes to offer a rebuttal to residents’ concerns before the committee renders its decision.

It may sound unfair to limit each resident to 5 minutes of speaking, but the COA has a huge volume of applications to process. In 2017, for example, the COA closed out 4,344 applications across the City – a little over 17 applications per working day. In 2017, COA panels across Toronto approved 3,398 of those applications – approximately 78%.

A Consent application usually ends up being at least 3 applications: one to sever the property and the other applications would centre around minor variances on the construction on the resulting parcels of land. At the COA, all of the sub-applications for a Consent application are heard together as one.

As with a minor variance application, residents are notified, they have the right to submit their concerns in writing and/or orally before the COA. Each resident is still only allowed to speak for 5 minutes, and the applicant has 5 minutes to present and another 5 minutes to rebut.

Obviously, Consent applications are more complex than straight minor variance applications. Applicants must show that the severance fits within the character of the neighbourhood and they also have to present their case for why the structures on the resulting parcels of land require minor variances.

We feel the way the COA currently handles Consent applications does a disservice to Toronto residents by inhibiting their ability to present evidence in opposition to the application.

The LBNA has been involved in over 20 appeals at TLAB – the majority of them consent applications. Unlike the 15 to 30 minutes the COA typically allows for hearing a consent application, some of the appeals have taken several days.

In introducing Bill 23, the Ford government sought to remove some of the roadblocks to construction of new homes. It appears they considered that one of those roadblocks was appeals by residents of COA decisions. They could argue that some of the appeals go on for days or months and seemingly point the finger at the residents as the root cause of lengthy appeals.

But let’s take a closer look at the length of these appeals.

The TLAB Process

At TLAB, the Applicant presents their case first, and the first witness is almost always a professional land use planner – an expert witness. In virtually every case we have participated in, the Expert Planner’s testimony takes up a full working day. They present their analysis of the neighbourhood and arguments about why their client’s proposal fits with The Planning Act, The Official Plan and the Bylaws. It can take up to a full day to cross-examine the evidence presented by these Planners, who often rely on their professional status and experience to present opnions about a proposal that are given weight by an adjudicator. Some of these Planners perform analyses that can only be described as superficial, and it takes time to show the holes in their arguments.

It’s not the residents that determine the content or duration of the presentation of evidence on behalf of an Applicant. It’s the lawyer representing the Applicant.

Sometimes, it feels like the applicants’ lawyers try to intimidate residents with the amount of material they present. The document filings and procedures can also be so intimidating, residents seem driven to find a lawyer to represent them. But not many residents can afford the cost of legal counsel, which can amount to between $20 and $50K depending on how long the hearing runs.

Deputation to the Planning and Housing Committee

In 2019, the LBNA presented some proposed amendments to the COA Process to make it more user-friendly. We saw the process as convenient for COA staff and panel members but onerous for residents. Here are some of the recommendations.

Separate Sessions

COA hearings typically are/were held between 10 am and 4 pm. While the COA posts an agenda noting the applications to be heard and the order in which they will be heard, residents have to commit to setting aside at least a 2-hour window. Because hearings on individual applications vary tremendously in duration, it is next to impossible to guarantee exactly at what time any application will be heard. On top of this, residents have to take time off work to attend COA hearings and this may also add commute times from their place of work. For residents who are hourly paid, attendance at a COA hearing could also mean sacrificing income.

The LBNA suggested holding applications for minor variance hearings during normal business hours, since these usually are the most straightforward cases, and represent the bulk of the COA hearings anyway.

Separate Streams

We also proposed severance applications be handled through a separate stream and process vs. minor vairance applications.

We suggested holding severance hearings during the evening to make it easier for residents to fully participate and express their concerns and also because, in any given month, the number of severance applications usually is relatively small compared to minor variance applications.

Perhaps the City should simply allow severance applications to bypass COA and go straight to TLAB. It’s obvious, by the time they take to argue, that severance applications are far more complex than minor vairance applications. And TLAB takes a more thorough, evidence-based approach to adjudication compared to the COA. Plus, in their written decisions, TLAB hearing chairs explain the reasoning behind their decisions, which the COA does not do, so there is more transparency than with the COA.

Perceived Bias

As noted above, the high approval rate for severance applications in Long Branch between 2014 and 2018 gave residents the impression the COA panel held bias in favour of developers. Here are some of the factors that we feel helped form this impression.

The COA panel during this time period seemed to consist of the same members time after time. While a normal COA panel consists of 5 members, often there were only 3, which Planning deems a quorum.

Frequently, during hearings, we would see the COA panel members huddle to confer. While this may be entirely innocent, it gives the impression of collusion.

The COA decisions are written with what is called “boilerplate” text outlining the reasons – that is, the SAME reasons appear on hundreds of decisions. Not only does this lack transparency, but it also is not in keeping with the spirit, let alone the intent of Section 45.8.1 of The Planning Act, which requires COA to not only describe the reasoning behind the decision, but also to describe the impact of oral and written submissions.

There is a legal principle known as “reasonable apprehension of bias”.

In the Canadian judicial system, a judge must not only be unbiased but also appear unbiased.

It is difficult to prove an adjudicator appears to hold a bias, let alone actually have one. The legal test involves proving that “a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the judge’s conduct gives rise to a reasonable apprehension of bias”. And the burden of proof would fall on the shoulders of the residents.

Note that, in the context of Reasonable Apprehension of Bias, the wording focuses on judges and does not appear to apply to other adjudicatory bodies such as the COA. Perhaps it should. And perhaps panel members should be required to formally swear an oath that they will be impartial in their duties.

Training

While the Long Branch Neighbourhood Character Guidelines were formally introduced in January, 2018, we did not have the impression the COA panel members actually understood how they were to be used. They seemed to accept the applicants’ representations that their proposals conformed with the guidelines in the face of more fact-based analysis by residents.

We also had the impression the COA panel members did not understand there are environmental chapters in the Official Plan – notably about protection of the urban forest – that need to be given weight.

Therefore, we proposed the COA panel members be given more thorough training on the Character Guidelines as well as on the environmental policies in the Official Plan.

Action by Planning

As far as we can tell, City Planning might be giving the COA panel members more training as we recommended, though the curriculum is not shared with us.

However, on issues like reasons for decisions, separation of applications into two streams (Minor Variance and Consent), Planning has done nothing.

What You Can Do

If you think the above arguments make sense, then please consider contacting our City Councillor, Amber Morley to let her know you’d like to see changes in the Planning process with respect to the COA.

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Towards Faster Decisions

In our last post, we described how one of the provisions in Ontario Bill 23 would deny residents the right to appeal municipal decisions. The government seems to feel residents’ appeals cause unnecessary delays in getting development proposals approved.

If you would like to read the full text of the Bill, click here.

In this post, we’d like to examine some of the potential sources of the delays in that approval process and some ideas on how the approval process can be shortened.

Large Variances

Consider this, we regularly see developers who ask for variances that are so large they go so far beyond what normal people would consider reasonable. And, in the past, we were seeing the Committee of Adjustment approving many of these. In fact, in 2016, the Etobicoke/York COA panel approved EVERY application to sever a property in Long Branch. Some of these were appealed to the OMB by residents. EVERY OMB decision that year was in favour of the severance.

Given this history, it shouldn’t be hard to see why Long Branch residents are so cynical about our Committee of Adjustment.

The City of Toronto approved changes to its Official Plan in 2018 to clarify policies on how development proposals should fit with neighbourhood character. That year, we also saw approval of the Long Branch Neighbourhood Character Guidelines, which provided clarity on the character elements in Long Branch.

However, while these regulatory changes made standards clearer, they did not stop some developers from making unrealistic demands in their applications.

So, part of the blame for the number of appeals has to be placed on developers – at least those who ask for huge variances. More reasonable variance requests would incite less opposition and likely result in fewer appeals.

When is a Minor Variance No Longer Minor?

Probably the term that generates the most debate in development applications and – especially appeals – is the term “minor variance”. The way The Planning Act defines it, ALL variances are minor by definition, regardless of their magnitude. However, The Planning Act also permits municipalities to provide clearer definitions on when a minor variance becomes too large to be considered minor. To date, no municipality in Ontario has adopted clear guidelines on minor variances.

One of the reasons “minor variance” is so contentious is that lawyers argue about the impact of a variance on neighbouring properties or a neighbourhood. Impact is subjective and therefore subject to interpretation and debate. A numeric standard for minor vs. major would be considerably less subject to interpretation because it is objective.

Developers point to restrictive bylaws as a major regulatory hurdle they face. And there is a degree of truth in that in some areas. But the bylaws are created by legislators, not residents. Only legislators have the power to change bylaws.

So, our legislators have contributed to the volume of appeals by allowing vague standards to be used in evaluating development proposals.

The Hearing Process

A typical COA hearing for an application takes about a half hour. The Applicant, or his/her representative has 5 minutes to outline the merits of the proposal. If anyone objects, they are given 5 minutes each to describe their concerns. Similarly, anyone supporting the proposal has 5 minutes to explain why. The hearing wraps up with the Applicant addressing any resident concerns and re-capping the merits of the proposal.

When we look below at the time involved in an appeal, perhaps the Committee of Adjustment is not the process best suited to adjudicating more complex planning applications. Perhaps we need some other form of primary adjudication that allows more time to examine applications in greater detail.

The Appeal Process

Short of a judicial review, the only recourse for participants in the COA process is to appeal to TLAB – the Toronto Local Appeal Body.

By comparison, when a COA decision is appealed to TLAB, there is no typical timeframe. We have seen hearings go as little as two days up to 14 days. So, why are these hearings so long?

The Applicant is first to present their case. Usually the first witness is an Expert Planning Witness who describes how the proposal meets the requirements of the Official Plan and/or the Bylaws, and how the proposal conforms to Provincial policies. It is not uncommon to see a Planning witness require a full day to present his/her testimony. After the Planner has testified, he or she is then cross-examined by the Residents (or representative) and by the City’s Legal Staff, when the City decides to be a Party to the hearing. The Applicant’s lawyer then is allowed to re-direct – to rebut some of the issues that might have come up during cross-examination. Cross-examination and re-direct can easily represent another full day.

The process is similar if an arborist is involved, though usually this will require a day to complete testimony, cross-examination and re-direct.

Depending on whether the City has taken on Party status, the above process repeats with Residents – and the City – presenting their cases. The biggest difference between the City’s case presentation and the Residents’ is that the Residents are not very likely to have an expert witness and more likely to have several neighbours who wish to have their concerns heard.

The longest TLAB case we participated in was 14 days and, in that case, the Applicant introduced a revised plan in mid-hearing, so the whole case was effectively heard twice.

When a case reaches TLAB, it becomes very high stakes because appealing a TLAB decision may require going to the courts. So there is a tendency to pull out all the stops on evidence to ensure all possible arguments are incorporated into the case. If the Applicant introduces 10 points about why their proposal should be allowed, then there are 10 points to probe on cross-examination.

So how can appeals be made shorter?

Some TLAB adjudicators tend to be more interested in allowing all Parties to present all their arguments than in limiting debate so they can conduct a hearing which all Parties would consider fair and impartial. Some of the arguments are complex (e.g., what is a minor variance), making it a challenge to limit debate.

One factor in the protracted length of TLAB hearings is that TLAB usually one schedules two or three days for hearings at the outset. By the time the adjudicator realizes this is insufficient, the adjudicator has to scramble to schedule additional hearing days so that he or she can find dates when all the Parties can be in the same room at the same time. This can add weeks, if not months to the hearing process. It’s frustrating for everyone involved: lawyers, TLAB staff, residents, and planners – not to mention the Applicants trying to get their proposal approved.

It might be better if TLAB scheduled 5 hearing days, for example, to book availability for all the lawyers and witnesses. If the hearing can be wrapped up in less than 5 days, it’s more likely everyone will see some of their time freed up and therefore a bonus. (Usually the lawyers don’t have any trouble filling their calendars).

TLAB adjudicators have the power to limit the time available for arguments. This is something judges in the court system also do. In the court system, a judge will ask each party how much time they think they need to present their cases and then negotiate a timeframe that allows for the hearing to be conducted expeditiously. A lawyer might be warned, during the presentation of their case, that they are approaching the agreed-upon time limit.

However, we have seen some lawyers who, despite a TLAB panel member suggesting a time limit, have exceeded their allotted time and then argued for the rest of the of the hearing to be expedited on behalf of their clients.

Perhaps a fixed fee for legal representation should be imposed by TLAB, as opposed to the customary hourly billing system most lawyers use. It could be amazing how much faster cases get presented when there is a cap on how much the lawyers can charge their clients. And a cap on legal fees would result in more predictability on the financial outcome for developers.

Parties to Appeals

Bill 23 appears to be aimed at reducing the number of Parties to appeals at TLAB/LPAT, on the assumption that, with fewer parties involved, appeal hearings will be shorter.

While there is truth in this, it means that not all stakeholders in a development proposal are represented at an appeal. When the City is involved in an appeal as a Party, the City’s legal staff represent the interests of the City – not the residents. We have, in the past, seen cases where the City has cut a deal with a developer that the residents have not agreed with. And the reason for that is that, when residents do not have Party status, they are excluded from any negotiations that might avoid the need for a formal appeal.

In our experience, we estimate the cost of a TLAB appeal for a developer can approach $100,000 in legal fees and expert witness fees. Homeowners are at a disadvantage on two counts: 1.) this is beyond the means of most homeowners in the City and 2.) legal fees are not tax-deductible for residents, as they are for developers (as a cost of doing business). So the net effect is to discourage opposition by imposing high costs on participation.

We would like to see the government allow residents to enjoy the same tax deductibility for legal fees that developers now enjoy. It would at least represent equal treatment for residents and developers.

The LBNA has been able to successfully advocate for Long Branch residents at TLAB without having to resort to hiring lawyers. It has been a team of dedicated volunteers with no formal legal training. For residents, this is a valuable service that a resident’s association can provide its members who lack the knowledge or training to work through the bureaucracy and procedures involved. Residents should not have further barriers to appeal by denying them – or resident’s association advocates – the right to be able to appeal.

And the LBNA’s track record on appeals should stand out as a signal that other things in the development approval process are broken. Without our success, these would not be known.

NIMBYism

We should not overlook NIMBYism. There definitely are people out there for whom any kind of development is bad. However, we believe they are a small minority, and extreme NIMBYism is as bad as aggressive overdevelopment.

The majority of residents are prepared to accept changes in their neighbourhoods. But they want to be treated fairly by the process. They want to have a voice in what is done. And the majority accept that some compromises need to be made to bring improvements to their neighbourhoods.

So perhaps what is needed is, when a COA decision is appealed, the first step should be some form of arbitration or negotiation between ALL parties – not just the Applicant, the Municipality and “specified persons”. Negotiation by litigation is neither simple, effective nor efficient. We think most reputable lawyers would tell you the same thing.

At the end of the day, one of the reasons residents protest development so arduously is that they are not consulted to be able to have input on something that will impact them. We’ve heard some developers say, “It’s my property. I can do what I want with it.” That is an attitude that invites conflict, and it makes the assumption that residents have nothing to offer in the way of opinions or flexibility without giving the courtesy of asking for their input. We’ve heard many instances in which the first time a resident hears about a development on their street is when they receive the COA Notice of Hearing.

Negotiation requires ALL parties to show flexibility. It will not meet what either party wants at the outset, but it ends up with something all parties can at least live with.

“A Government for the People”

In his Speech from the Throne on July 12, 2018, our current Premier described “A Government for the People”, stating, “… that every seat in this chamber ultimately belongs to the Ontarians who sent you here.  The privilege of democracy is to temporarily occupy these seats on the people’s behalf. And in so doing, to always be mindful that the power exercised here must always be — and only be — exercised with the people’s best interest in mind.“

What You Can Do

Taking away a resident’s right to appeal a decision is not a fair way to treat taxpayers and arguably demonstrates that elements of this legislation have been hastily put together without thinking through to what the true systemic issues are in getting more homes built faster.

If you share these concerns about Bill 23, please let our MPP, Christine Hogarth, know not only how you feel, but how strongly you feel about it. The LBNA is circulating a template for a letter to Christine Hogarth, but you are also welcome to put your feelings into your own word.

Bill 23 has gone through 2nd reading within two weeks and went for public deputations November 16 and 17th.  If you don’t speak up, the Bill will be in place before the end of the year and retroactive to October 2

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Beware Bill 23

On October 25, 2022, the government of Ontario introduced Bill 23, the More Homes Built Faster Act, 2022 which proposes sweeping changes to the land use approvals system in the province.

We understand the need to create more housing to accommodate population growth in Ontario, but there are some proposed amendments in Bill 23 that are cause for concern.

You have seen in this blog that the LBNA has managed to win a significant number of TLAB appeals of COA decisions on behalf of Long Branch residents. Well, provisions in Bill 23 would strip away the right to appeal COA decisions.

Currently, Section 44, subsection 12 of The Planning Act governs the appeal process, and it states:

“(12)  The applicant, the Minister or any other person or public body who has an interest in the matter may within 20 days of the making of the decision appeal to the Municipal Board against the decision of the committee by filing with the secretary-treasurer of the committee a notice of appeal setting out the objection to the decision and the reasons in support of the objection…”

Previously, the “any other person” meant anyone who had submitted oral and/or written objections to a development proposal to the COA.

Bill 23 proposes to change this clause to “a specified person”, in place of “any other person”.

A casual reader of the proposed Bill 23 might not see the magnitude of what is being proposed here. The government still seems to be allowing persons to be able to appeal.

But take a look at how Bill 23 defines “specified person”

This looks more like organizations, not people.

We understand the need to add to Ontario’s housing stock to accommodate population growth,. And the provincial government argues that Bill 23 removes obstacles to fast-paced construction of new homes, including the approval process for developments.

We agree that eliminating unnecessary red tape is a good way to expedite construction of development projects. But we do NOT agree that taking away residents’ rights to appeal COA decisions is an appropriate way to cut red tape.

If you talk to most residents in Long Branch, you’ll find we’re in favour of seeing improvements to the neighbourhood’s housing stock – some of which dates back to the 1920s to 1940s, when the neighbourhood was more like a cottage community.

I think we all would agree that one of the signs of a fair process is the ability to debate the decision and to appeal it if we disagree.

But the proposed amendments in Bill 23 seem to suggest that the appeal process is the problem. We disagree with this.

What You Can Do

Taking away a resident’s right to appeal a decision is not a fair way to treat taxpayers and arguably demonstrates that elements of this legislation have been hastily put together without thinking through to what the true systemic issues are in getting more homes built faster.

If you share these concerns about Bill 12, please let our MPP, Christine Hogarth, know not only how you feel, but how strongly you feel about it. The LBNA is circulating a template for a letter to Christine Hogarth, but you are also welcome to put your feelings into your own word.

Bill 23 went through 2nd reading within two weeks and went for public deputations November 16 and 17th, The Ministry also took written comments up to Nov 17th.  If you don’t speak up, the Bill will be in place before the end of the year and retroactive to October 25th, 2022.

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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 Eigthth – TLAB Review

On May 15, 2018, Ms. Burton issued her decision, which upheld the COA’s approval of the severances and variances for 9 Thirty Eighth Street.

Once again, I was out of the country on business, with no access to my computer or support network, when a significant decision was set forth by an adjudicating body.

When I read Ms. Burton’s decision, I felt it was unfair and unfounded.  It seemed as though she had ignored the hard numbers presented by the City’s planner and myself and relied instead on the opinion of the builder’s planner, who presented little in the way of numeric evidence. She seemingly ignored the testimony of the City’s Urban Forestry witness, who urged refusal in order to preserve the 3 mature trees at the front of the property – evidence that was unchallenged by the arborist for the builder, who failed to appear.

TLAB Request for Review Process

According Under TLAB Rules, it is possible to appeal a decision made by a TLAB member through what is called a Request for Review. However, anyone who wants to request a review must do so within 30 days of the date the decision was released. In my case, that left me less than 3 weeks to make a case for having Ms. Burton’s decision reviewed.

Review requests must be in the form of an affidavit and describe:

  • the reasons for the request;
  • the grounds for the request;
  • any new evidence supporting the request; and
  • any applicable Rules or law supporting the request.

The grounds for such a request could include one of more of the following:

  • The TLAB acted outside of its jurisdiction;
  • The TLAB member violated the rules of natural justice and procedural fairness;
  • The TLAB member made an error of law or fact which would likely have resulted in a different order or decision;
  • The TLAB member had been deprived of new evidence which was not available at the time of the Hearing but which would likely have resulted in a different order or decision; or
  • The TLAB member may have heard false or misleading evidence from a Person, which was only discovered after the Hearing, but which likely resulted in the order or decision which is the subject of the request for review.

Grounds for Review

My concerns about how Ms. Burton treated the planning and forestry evidence represented, to me, an error of fact, if not an error of law.  In addition, I felt deprived of the opportunity to present evidence that nearly 50% of the properties on my block were owned by builders and that the severance at #40 went unchallenged because most of the prescribed notices about the Committee of Adjustment would have gone to builders or tenants who had no interest in opposing such an application. In her decision, Ms. Burton stated, “There was no public opposition to the recent severance at no. 40 as it was not appealed. … The City did not appeal the much less desirable “soldier homes” and lot division at no. 40 across the street from the proposed. That development is now part of the street and neighbourhood fabric.”

By way of commenting on references in the decision to other severance applications in Long Branch, the OMB seemed to tell residents that precedent did not play a role in how they adjudicated subsequent applications. Yet they conveniently remind residents that these approved severances were now “part of the neighbourhood character” and therefore should be considered in evaluating future severance applications.

“Similarly, in 40 37th Street, (Oct. 24, 2017, PL 161248), with the same City witnesses, the panel found that if the application for severance were granted, the lots would be the smallest on the street (para. 32), but that these would not constitute a precedent.” [N.B. this application was approved by the OMB]

“On the issue of ‘precedent’, he [OMB member Krzeczunowicz] observed: ‘It is certainly true that severed lots can subsequently be used to justify further severances because, once divided, they become part of the neighbourhood character.’” 2425456 Ontario Inc. v Toronto (City) OMB (PL160520) heard November 14, 2016 (‘2425456’) re 30 Thirty Sixth Street.

To review exactly how the hearing was conducted, I first sought out transcripts from the hearing, but found that TLAB did not prepare transcripts. They did, however, have audio recordings, so I ordered copies of the recordings for both days of the hearing.

The audio recordings were close to being useless. I believe that, while microphones were available in the hearing room, either some were not turned on or some people were not speaking into the microphones because the audio was very faint. I was able to improve the sound quality (primarily the volume) by running the recordings through sound editing software, but not everyone would have the knowledge or expertise to do this. I also used the sound editing software to annotate specific sections in the recordings.

I had to listen to the entire two days of testimony and arguments several times to grasp the nuances of what was said and to document specific passages accurately in my Review Request.

In her rationale, Ms. Burton felt the builder’s expert planning witness was more credible than what was presented by the City’s planner and two residents – myself and David Godley, a long-time Long Branch resident and retired urban planner. She dismissed the City’s planning evidence saying that they defined the neighbourhood as a small stretch of homes along one side of Thirty Eighth Street – a pretty clear misinterpretation of what was presented to her. She also seemed to dismiss the hard numbers in the analysis presented by the residents which showed that what was proposed do not conform to the existing character of the neighbourhood.

The truth is that the City planner and the residents presented much the same data, looking not only at Thirty Eighth Street, but also a much bigger study area covering Lake Promenade to Lakeshore Boulevard and from Thirty Sixth Street to Fortieth Street – not just one side of Thirty Eighth Street.

A deeper look at the data show that narrower lots are mainly found close to Lakeshore Boulevard while lots closer to Lake Promenade, where 9 Thirty Eighth is located, tended to be primarily 50-foot lots. This was presented during the TLAB hearing, but there is no reference to this in Ms. Burton’s decision.

The following are three slides from my presentation that, I think, show a much different picture than what the builder’s planner painted.

The first slide shows that 50 feet is the prevailing frontage in the neighbourhood study area, that represented over 300 properties. The second slide shows the same pattern on Thirty Eighth Street. The third slide shows the density of the proposed new homes compared to the existing homes on Thirty Eighth Street, clearly showing what was proposed did not reflect what was already on the street and that the severance at no. 40 Thirty Eight, which the builder’s lawyer repeatedly referred to, was even further removed from the pattern for the street.

Bar chart showing the number of lots in various ranges of lot frontage
Bar chart showing distribution of lot frontages on Thirty Eighth Street

Ms. Burton also characterized this situation as being different from a similar TLAB hearing on Thirty Sixth Street (38 Thirty Sixth), where I had used the exact same data and presentation format to lead to a refusal of a proposal to sever that property.

Submitting the Request

I assembled my case and exhibits. I wrote up my case in the form of a business letter, expressing my concerns and grounds for the review. I had to take all of this to a lawyer to have it notarized for submission to TLAB. I told the lawyer I was supposed to submit my materials in the form of an affidavit and asked if my business letter format qualified as an affidavit. She replied, “It will be once I sign it.”

I then had to scan all the hard copies into PDF documents – the format TLAB requires for submission – so I could submit by email. I phoned the TLAB offices to alert them that I would be sending a Request for Review and confirmed the date I proposed for submission was acceptable. TLAB Rules say that Requests for Review must be submitted within 30 days of the date of the decision, though it was not clear when the 30 days started – the date of the decision or the day after (it was the latter).

I emailed my completed Request for Review form and affidavit to TLAB on June 15, 2018, copying the lawyers for the City and for the builder which, though not stated explicitly in TLAB’s Rule, seemed to me to be the appropriate protocol.

One problem cropped up when I made my submission. Among the evidence I was submitting were the recordings of the TLAB hearing and the video recording of the Committee of Adjustment hearing. TLAB had no standards for audio or video evidence and, in any event, the files were very large and hard to send via email. I offered to create a zip file to compress the files and send them in a single folder, but staff at TLAB did not know how to handle zip files. I also asked if I could submit the audio and video files via a shared folder so TLAB staff could download from there.

I finally managed to get the video file to TLAB but they informed me they could not upload to the case file because the case files did not support audio or video evidence.

I believe (though I could be mistaken) this was TLAB’s first Request for Review under its Rules of Practice and Procedure.

The Review Decision

After June 20th, I heard nothing from TLAB to verify that my Request for Review had been accepted. Then, on August 3rd, a decision came down from the Chair of TLAB, Mr. Ian Lord, overturning Ms. Burton’s decision and refusing permission to sever the property.

I felt great relief from this decision. It seemed like someone finally listened to the residents.

This, unfortunately, is not the end of the story. Tune in next week for the next instalment.

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