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.
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.
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.
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.
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.