toronto auditor general report

7/29/2019 Toronto Auditor General Report

1/53

Review of Certain Applications Before theNorth York Committee of Adjustmenton September 22, 2005

Portions of this report have been redacted to comply with the provisions of the Municipal Freedom of Information and Protection ofPrivacy Act and other confidentiatity requirements

April 13,2006

TORONfO Auditor General


2/53

Review of Certain Applications Before theNorth York Committee of Adjustmenton September 22,2005

Jeffry (Griffiths, C.A., C . F . E .Auditor GeneralCity of Toronto

Apri l 13,2006

9th Floor, Metro Hall , Toronto ON Canada M5V3C6


3/53

T A B L E OF C O N T E N T S

INTRODUCTION 1

RECOMMENDATIONS 3

BACKGROUND 6

A U D I T OBJECT IVES, SCOPE A N D METHODOLOGY 18

- -AUDIT-RESi^S:::.:.:;V;::7::..V:T;7:^^ :..r.:.:;^rrr-:rrr..rrr.^.^:r.....l9-

1. Potential Influence of Committee Members by Committee of Adjustment Staff 19

2 . Potential Influence of Councillors and Related Staff Attending Committee Meetings......23

3. Minutes Maintained by the Secretary; Protocol Related to Reserve Decisions,~ ^ Adjournment Procedures an^"ei)T[imtttee~CoiisullaLion W i t h a Counci llor 26

4 . Unscheduled Disclosure of Committee Decisions i n Advance of General Notification.. . 315: Delay o f Public Notification of Committee Decisions .r...:rr...... ...326. Informal Committee Meetings Held Outside of PubHc View 35

7. Introduct ion of Un o f f i c i a l Revised Minutes f r om Non-public Committee Meet ing 388. Adopt ion of Revised Minutes by the Committee of Adjustment 40

9. Appropriateness of Committee Referral to the North Yo r k Community Council 4210. The Manner in Whi ch This Matter was Brought Before the North Yo r k Community

Council 4411 . Further Revisions to October 6, 2005 Minutes 4712 . Other Issues 49CONCLUSION 49


4/53

I N T R O D U C T I O N

A t the meeting of October 28, 2005, Ci ty Council adopted a motion to provide for the AuditorGeneral to conduct a review "respecting the processing and hearing of certain applications to theCommittee of Adjustmenf. C i t y Council expressed concerns regarding the North Yo r kCommittee of Adjustment's processing and hearing of these applications. The motion adoptedby C i t y Council provided for the Auditor General's findings to be provided "to the C i t y Solicitorand that the C i t y Solicitor report in consultation w i t h the Integrity CommlssioneT, "directly IdCouncil on whether there may be reasons to consider this matter further and, i f so, theappropriate procedures under which that further consideration should be carried out."

The motion adopted bv Council also stated, 'the Auditor General provide findings to Council forconsideration w i t h the report f r om the C i t y Solicitor". The Auditor General was also requestedto investigate the manner in which this matter was brought before the North Yo r k CommunityCouncil.

This report has been reviewed w i t h the Ci ty Solicitor and the Integrity Commissioner.

This report outlines the results o f our review of the processing and hearing o f certain applicationspresented to the Committee of Adjustment.

Summary of Issues

The issues raised in this report are summarized as follows:

1. Potential Influence of Committee Members by Committee of Adjustment Staff;2. Potential hifluence of Councillors and Related Staff Attending Committee Meetings;3. Minutes Maintained by the Secretary; Protocol Related to Reserve Decisions;

Adjournment Procedures; and Committee Consultation w i t h a Councillor;4. Unscheduled Disclosure o f Committee Decisions in Advance of General Notification;5. Delay of Public Notification of Committee Decisions;


5/53

6. Informal Committee Meetings Held Outside of Public V i e w ;7. Intro duction o f Uno f f i c i a l Revised Minutes f r om Non-publ ic Committee Meeting;8. Adoption of Revised Minutes by the Committee o f Adjustment;9. Appropriateness of Comm ittee Refenral to the North Yo r k Community Council;10. The Manner in which this Matter was Brought before the North Yo r k Community

Council;11 . Further Revisions to October 6, 2005 Minutes; and12. Other Issues, "

The report is organized in a manner facilitating first an understanding of the chronology ofevents. Table 1 in the pages that f o l l ow provides a br i e f description of the three applications inquestion. Table 2 provides a factual chronology of the events as they unfolded withoutcommentary. Further commentary and analysis of the details rela ting to each event described inTable 2 is then provided in the remainder o f the report.


6/53

R E C O M M E N D A T I O N S

The f o l l ow i n g is a l i s t of recommendations contained in the report.

1. The Deputy Secretary-Treasurer of the Committee of Adjustment and otherCommittee of Adjustment staff refrain from offering advice or guidance in amanner that could be construed as an attempt to influence decisions of theCommittee of Adjustment.

2. Tbe Deputy Secretary-Treasurer of the Committee of Adjustment ensure thatCommittee of Adjustment Pre-briefing meetings in North Y o r k are open to thepubiic. Tn addition, advance notification to the public of such meetings becommunicated in an appropriate manner.

3 . The C h a i r of the Committee of Adjustment ensure thatthe actions of any individualincluding Council members and staff attending Committee meetings are consistentwith tbe arm's-Jength, quasi-judicial nature of the Committee. Any actionscompromising this position should be immediately dealt with by the CommitteeCha i r .

4. Thf- C h a i r nf the Committee of Adjustment should clearly indicate during themeeting when a decision on an application is reserved. In addition, informationrelating to when reserved decisions will be addressed should be communicated tothe public.

5. The C h a i r of the Committee of Adjustment should follow generally accepted rules ofprocedure and in all cases, clearly and officially signify to all of those in attendanceat the meeting when the meeting is adjourned.

1- -> -


7/53

6. The Committee of Adjustment, in clarifying its roles and responsibilities, shouldseek advice from legal staff. The Committee of Adjustment, as a quasi-judicialtribunal operating at arm*s-length from City Council, should refrain from seekingadvice on its roles and responsibilities from City Council members. In this contextand in order to ensure that the Committee of Adjustment clearly understand theirroles and responsibilities, the development of a mandatory training program beconsidered.

7. Committee of Adjustment staff should establish a protocol whereby all appropriateparties, including the public, are notified of Committee decisions in writing at thesame time.

8. Committee of Adjustment staff should ensure that the communication of Committeeof Adjustment decisions to interested parties and the public is consistent and timely.

9. Al l Committee of Adjustment meetings should be held in public with properadvance notification. In the event a special meeting to deliberate on a reservedapplication is required, minutes should be taken, and at least one Committee ofAdjustment staff member should be present.

40, Thp rnmmittpp of Arijiistment should ensure that once applications are approvedand decisions communicated to third parties, revisions should only be consideredfor typographical errors, errors of calculations or similar errors made in its decisionor order.

11. The Ch a i r of the Committee of Adjustment should ensure all applications before theCommittee are appropriately tabled, considered and voted on in a mannerconsistent with the Rules of Procedure established for the Committee.

- 4 -


8/53

12. The Committee of Adjustment, as a quasi-judicial tribunal that is required by lawto operate at arm's-length from and independently of City Council should notrequest Community Councils or other legislative bodies to intervene on applicationsconsidered by the Committee.

13. The Chief Planner and Executive Director (in consultation with the City Solicitorand the Integrity Commissioner) should develop proposals for Council on a protocolfor the handling of complaints against Committees of Adjustment and theirmembers (including identification of the appropriate legislative body or official forthe receipt and investigation of complaints).

14. The Ch a i r of the Committee of Adjustment, Committee of Adjustment membersand appropriate support staff should ensure that only issues discussed at regularCommittee meetings be included in the minutes prior to their adoption. Onceprepared, with the exception of minor revisions allowed under the Rules ofProcedure, minutes should not be amended.

15. The Chief Planner and Executive Director be requested to report back to CityCouncil on a policy related to financial conditions attached to applicationsconsidered by the Committee of Adjustment. Such a policy to address:

the appropriateness of current practice;the adoption of a consistent process across the City;the adequacy of controls relating to accounting for financial contributions;andthe criteria, including the approval process, relating to the use of such funds.


9/53

B A C K G R O U N D

The purpose o f this review was to investigate concerns raised related to the processing andhearing of certain applications to the North Y o r k Committee of Adjustment. At the meeting ofOctober 28, 2005 Ci ty Council adopted a motion to provide for the Auditor General to conduct areview "respecting the processing and hearing of certain applications to the Committee ofAdjustment. The motion adopted provided for the Auditor General's findings to be provided"to the Ci ty Solicitor and that the Ci ty Solicitor r"eport in consultation ^ i t h ^ ^ t ^ ^Commissioner, directly to Council on whether there may be reasons to consider this matterfurther and, i f so, the appropriate procedures under which that further consideration should becarried out."

As w e l l , the motion adopted by Council aJso stated, "the Auditor General provide findings toCouncil for consideration w i t h the report f rom the Ci ty Solicitor". The Auditor General was alsorequested to investigate the manner in which this matter was brought before the North Yo r kCommunity Council.

A review of the content, reasonableness or technical aspects of the three applications in questionwere not considered as part of our review.

^Background on the CommiT t e e of AHjiistment

The Committee of Adjustment is a quasi-judicial body appointed by Ci ty Council andestablished under the Planning Act , Part V, Land Use Controls and Related Administration. ThePlanning Act prescribes certain requirements related to the Committee of Adjustment includingthe powers of the committee, rules of procedure, filing of documents, officers and terms ofoffice.


10/53

Section 44 of the Planning Act provides for the establishment of a Committee of Adjustment.Section 45 of the Planning Act sets forth the powers of the Committee of Adjustment as follows:

"The Committee of Adjustment, upon the application of the owner of any land, buildingo r structure affected by any by-law that is passed under Section 34 or 38 of the PlanningAc t , or a predecessor of such sections, or any person authorized in writing by the owner,may, despite any other Act, authorize such minor variance from the provisions of the byl aw , in respect of the land, building or structure or the use thereof, as in its opinion isdesirable for the appropriate development or use of the land, building or structure, i f inthe opinion of the committee, the general intent and purpose o f the by-law and of theof f ic ia l plan, i f any, are maintained "

The Committees operate in panels corresponding to Community Council boundaries. TheCommittee of Adjustment is comprised of five members consisting of a Chair (non-voting) andfour members appointed by members of City Council. The members-of the Committee holdoffice for the term of the council that appointed them

Committee Responsibilities and Duties

Committee members are bound by a published Code of Conduct and Rules of Procedure. TheCoT^mittee is ragnimr i hy b w to operate at arm's-length from and independent of Council, hif u l f i l l i n g Committee related duties, Committee members review information packages forupcoming meetings and participate in site visits for applications as appropriate. Committeemembers also attend agenda pre-briefmg meetings and Committee meetings held at CivicCentres.

Committee members may approve applications w i t h or without conditions, or reject applications.When conditions are imposed, they should be reasonably related to variances considered underthe application.


11/53


12/53

Application # Address DescriptionA0724/05NY 231 Olive Avenue Building of new residence, first considered at September 22,

2005 Committee meeting.A0693/05NY 0 Bayview Avenue This application was first considered by tlie Committee ofAdjustment on September 8. 2005 this appUcation requested

an increase to the permitted number of residential units and toalter the pennitted building terrace lengths and the minimumrequired parking. Tlie Committee deferred the application toSeptember 22. 2005.

Chronology of Events Relating to Applications in Question

As previously mentioned, Table 2 below provides a description of the events related to theCommittee of Adjustment's consideration of the three applications in question.

T A B L E 2Chronology of Events - September 22, 2005 through October 20, 2005

Date Time Event Description9/22/05 U:00 a.m. Prc-briefing

MeetingA pre-briefing meeting takes place prior to all scheduledCommittee of Adjustment meetings. This meeting is open to thepublic although in general, members of the public do not attend.Nomaally, only the Deputj' Secretarv-Treasurer and Committeemembers attend the pre-briefing meeting. At pre-briefmgs, theDeputy- Secretar>'-Treasurer ensures that Committee members arebriefed on apphcations sclieduled for consideration that day.During this pre-briefing meeting, a review of key issues relatingto all apphcations on die agenda was conducted by the Deputy'Secretarv'-Treasurer. Among the applications discussed was tlie2737 Kccle Street application. During these discussions it isalleged and we confinned that the Deput\ Secretary-Treasurermentioned potential litigation against the City relating to tliisapplication.


13/53


14/53

A0724/Q5NY (231 Olive Street)

Following the consideration of several other applications, theCoiTimittec considered an application related to 231 Olive Street.A Councillor's (Filion/Moscoe) assistant present, noted certainerrors in die staff report relating to t l i is application and tlieCommittee decided to reserve this application.

AQ693/05NY (0 Bavview Avenue)

_The Committee considered an application related to 0 BayviewAvenue previously reserved on September 8, 2005. A number ofpersons appeared before the Committee relating to thisapplication including two City Councillors, one representing theward relatmg to the application (Shiner), the other representingthe adjoining ward (F i l ion ) . Staff recommended tlie ^proval ofthe application subject to certam conditions relating to thisapplication. After staff presentations and Councillor deputations,the Committee voted to reserve this apphcation.

As both Councillors exited the meeting room (just prior to 7:30p.m.), both were aware that the Bayview and Keele applicationshad been reserved.Both provided their respective contactinfonnation to staff and requested to be informed of the f inalCoiumittee action related to the two reserved apphcations.


15/53

Date Time Event9/22/05 7:30 p.m. Other critical

meetingpoints

Motions onreserveddecisionsmade.seconded andapproved

Committeeauthorizationtocommunicatew i t l i a C i tyCouncillor

Adjournment

DescriptionAfter considering t l ie remaining items on the agenda, Committeemeeting minutes indicate that the reserved decisions were takenup again by the Committee. The onginal minutes do not reflectan offic ia l action by die Committee Chair to adjourn the meeting(such as sounding a gavel) however an adjournment time is noted.Our discussions w i t h Committee members, staff and odierindividuals present indicate that the meeting room was vacated byeveryone w i t h the exception of staff and Committee membersprior to considering reserved decisions.

Minutes indicate two of the three reserved applications describedabove were discussed m detail (the other, 231 Olive Street, wasapproved subject to conditions wi t h l i t t l e discussion) andunanimously approved subject to conditions. Tiie discussionsrelating to 2737 Keele included discussions concerning thefinancial contribution appropriate for community benefits.Minutes reflect specific Committee members as motion makersand seconders for each application and unanimous approval.

the minutes reflect that the Committeeauthorized the Chair to communicate in w r i t i n g to a Cit>'Councillor (F i l ion) to request guidance on the Committee's rolei n considering applications of this size and nature.

The minutes reflect adjournment o f the meeting at 8:45 p.m.

- 1 2 -


16/53


17/53


18/53


19/53


20/53


21/53


22/53

A U D I T R E S U L T S

I S S U E 1: P O T E N T I A L I N F L U E N C E O F C O M M I T T E E M E M B E R S BYC O M M I T T E E O F A D J U S T M E N T S T A F F

Date Time Event Description9/22/05 11:00 a.m. Pre-briefing

MeetingA pre-briefmg meeting takes place prior to ail scheduledCommittee of Adjustment meetings. This meeting is open to thepublic altliough in general, members of the public do not attend.Normally, only the Deputy Secretary-Treasurer and Committeemembers attend the pre-briefing meeting. At pre-briefings_j theDeput\ Secretarv'-Treasurer ensures that Committee members arc

Jmefed on applications scheduled for consideration that day.

- -

During this pre-briefing meeting, a review of key issues relating toa ll applications on the agenda was conducted by the Deput>'Secretar\'-Treasurer. Among the applications discussed was the2737 Keele Street application. Durmg these discussions, it isalleged and we confirmed that tire Deputy Secretary-Treasurermentioned potential litigation against the City relating to thisapplication.

Background

City staff assistance to Committee of Adjustment members include:

Administrative staff specifically assigned to support the Committee, including the DeputySecretary-Treasurer, and his staff;

Transportation, Toronto Transit Commission and other City staff depending on the natureo f the applicadon;

Other City Planning staff; City legal staff

- 19-


23/53

The role of t l ie Deputy Secretary-Treasurer as defined in the Committee of Adjustment PanelMembers Manual includes;

Process applications, provide notice, collect fees, schedule meetings, coordinate appeals; Provide information and guidance to Committee members related to the conduct of

meetings and procedural matters; Ensure information received is before the Committee in a timely manner (prior to the

meeting).

L i addition, the.Planning Act provides that the Secretary-Treasurer shall keep on f i le minutesand records of a l l applications and decisions as we l l as all other business of the Committee.

Ci ty Planning staff submit staff reports to the Committee relating to applications and makerecommendations based on their professional opinion and interpretation of the Planning Act andregulations as w e l l as w i t h i n the-contextofthe City's^ Of f i c i a l Plan and Zoning-Bylaws. Thesestaff reports f o rm part of the information considered by the Committee. Pre-briefmg meetings ofthe Committee of Adjustment are open to the public.

The Issues in Relation to the September 22. 2005 Pre-briefing Meetin2

We interviewed members in attendance at the September 22, 2005 Committee o f AdjustmentPre-brlefing meeting.

- 2 0 -


24/53


25/53


26/53


27/53


28/53


29/53


30/53


31/53


32/53


33/53

Adjourned 8:45 p.m." However, according to those interviewed no formal words were spoken oraction taken to of f i c i a l l y adjourn the meeting.

I n our discussions w i t h Deputy Secretary-Treasurers of other Ci t y of Toronto Committees ofAdjustment, Committee chairs do not indicate an o f f i c i a l meeting adjournment, verbal orotherwise. Those interviewed indicated, "meetings are adjourned when they end". Theyindicated that as long as the Committee Secretary records minutes, motions continue to be madeand voting continues to take place, the meeting is in session. At the September 22, 2005meeting, the three applications originally reserved were deliberated by the Committee, minutescontinued to be taken on these deliberations, motions were made and seconded to approve allthree applications w i t h conditions outlined, and voting took place.

I n our view, the meeting adjourned at 8:45 p.m. subsequent to decisions having been made onthe three applications in question.

Recommendation:

5. The Ch a i r of the Committee of Adjustment should follow generally accepted rules ofprocedure and in all cases, clearly and officially signify to all of those in attendanceat the meeting when the meeting is adjourned.

4. Adopting Motion to Consult with a Councillorthe minutes reflect that the Committee authorized the Chair to communicate

i n w r i t i n g to a C i t y Councillor ( F i l i o n ) to request guidance on certain types o f applications,brought before the Committee. However, according to a March 2005 opinion issued by the Ci t ySolicitor to the Chair of the Committee of Adjustment, "C i t y Councillors should communicatedirecdy w i t h the Committee of Adjustment only at scheduled, public hearings o f applicadons.This is the best and surest way of preventing accusations that Councillors have an "inside track"or special opportunity to communicate w i t h and influence the Committee". Further, the Ci t ySolicitor states " . . . I would recommend that you would not proceed wi t h meetings w i t hindividual councillors."

- 3 0 -


34/53


35/53

The Issue in Relation to the September 22, 2005 C a l l to Councillors

Current policies and procedures do not prohibit staff from notifying selected individualsregarding the results of Committee decisions in advance of general disclosure. However, in theinterest of fairness, equity and general disclosure, all appropriate parties, including the public,should be notified in w r i t i n g of Committee decisions at the same time.

Recommendation:

7. Committee of Adjustment staff should establish a protocol whereby all appropriateparties, including the public, are notified of Committee decisions in writing at the

same time.

I S S U E 5: D E L A Y O F P U B L I C N O T I F I C A T I O N O F C O M M I T T E E D E C I S I O N S

Date Time Event Description9/28/05 Business

hoursTelephonecallregardingpublicnotification

Committee Chair telephones Senior Planner and requestsinformation related to notifying applicants and the public ofdecisions made on September 22, 2005. The Senior Plaimerinforms the Chair that decisions are scheduled for mail notificationin accordance with the nonnal practice on Friday, September 30,

o f decisions

Chairrequesteddelayingpublicnotificationo fdecisions

2005.

The Cliair then requested that decisions made on reservedapplications not be mailed on September 30, 2005, stating a desireto aimounce the decisions made at the upcoming October 6, 2005meeting. The Senior Planner consulted wi t h the Deput\ Secretarv'-Treasurer and advised the Chair that they would comply wi th theChair's request and delay the general notification of Committeedecisions. This decision was later confirmed by the Senior Plannerby e-mail to the Chair, in response to an e-mail from the Chair.

- 3 2 -


36/53

Background

I n general, public disclosure of Committee decisions is made no later than 10 days of theCommittee meeting. During the course of our review, we determined that timely notificationpractices are in place and designed to i n f o r m applicants, interested parties, planners, related staffand Councillors of Committee decisions. Timely notification of Committee decisions provideapplicants and others, w i t h information required to proceed w i t h further action related to theirrespective projects. These notification practices also provide applicants and other affectedparties w i t h an opportunity to prepare an appeal i n a timely manner in the event o f anunfavourable Committee decision.

Our discussions w i t h other-Committee Deputy.Secretary-Treasurers indicated that Committeedecisions are made public by mail communication to parties included on a written notificationl is t . The notification l is t includes applicants, interested parties, planners, related C i t y staff,Councillors^nd their assistants. Notification occurs at varying times and through differentmethods after the meeting adjourns. For example, the general practice in the South District is toe-mail a "Results L i s t i n g " w i t h i n one hour of meeting adjoumment.


37/53


38/53

I S S UE 6: m F O R M A L C O M M I T T E E M E E T I N G S H E L D O U T S I D E O F P U B L I C V I E W

Date Time Event Description10/05/05 Evening

HoursInformalCommitteeMeeting

Tli is infomial meeting of Committee of Adjustment members tookplace at the Conimittee Chair's business office without notificationto the Deput ' Secretary-Treasurer and wit l iout staff in attendance.The Chair indicated this meeting was called by him to apprisemembers o f his September 29, 2005 meeting wi th the Chief Plannerand City Legal Counsel.

Additionally, the Chair also expressed his desire to informCommittee members that the applications in question had not beenapproved at the September 22, 2005 meeting and were to bereconsidered disregarding any knowledge of potenti^ l i tigationrelating to tlie Keele application.

An e-mail correspondence trom one Committee member present todie others dated the same evening indicates that a decision wasmade at tlie October 5, 2005 informal Committee meeting to deferboth subject applications to North York Communit\ Council. Thepurpose of the deferral specified in the e-mail was to detennine tlieneed for finther public input. One Committee member recalled thatthe main Uimst of the motion relating to deferring applications wasdrafted prior to leaving the October 5, 2005 meeting.

Background

During our interviews. Ci ty Legal staff indicated that meetings outside the public arena such asthat held on October 5, 2005 are simil ar to those of an independent tribunal . As such, it is theiropinion that the Committee of Adjustment has the right to meet outside the public arena todiscuss pending applications. According to the Ci ty Solicitor, informal meetings conductedoutside the "public eye" are permissible as long as no new information or material is introduced.


39/53


40/53

Committee members prior to the informal October 5, 2005 meeting. However, we reviewed ane-mail summarizing the decisions made at this meeting. As there were no outside witnesses, theprivate meeting held on October 5, 2005, has opened the door to questions and concerns relatedto procedures and decisions regarding the applications in question.

Recommendation:

9. Ail Committee of Adjustment meetings should be held in public with properadvance notification. In the event a special meeting to deliberate on a reservedapplication is required, minutes should be taken, and at least one Committee ofAdjustment staff member should be present.

- 3 7 -


41/53

I S S U E 7: I N T R O D U C T I O N O F U N O F F I C I A L R E V I S E D M I N U T E S F R O M NONP U B L I C C O M M I T T E E M E E T I N G

- '

Date Time Event Description

- '

10/06/05 11:00 a.m. Pre-briefmgMeeting

A t this pre-briefing meeting, the Committee Chair presents amotion deferring both subject applications to North YorkConmimiity Council for further public consultation. Tlie Chairhad previously contacted Legal counsel (J. Paton) just prior to thepre-briefing to seek advice on the motion. City Legal counselindicated that because the request for advice was from the Chairo f an independent.tribunal, he .didjDOt feel comfortable-ad\nsmg-_him not to go forward with a motion. However, the counseladvised the Chair that the motion was unusual and that it could be- '

-

challenged.

When the_Deput\ _Secretary-_Treasurer__presej ^decisions made on September 22, 2005 relating to the Keele andBayview applications, the Chair informed h im that the Committeehad convened the day before and made a "new decision".

lllllllllllll ^affinned that a legal opinion had been expressed.The third of three applications resen'ed and subsequentlyapproved on September 22, 2005 relating to 231 Olive Street wasaccepted as presented.


42/53


43/53


44/53


45/53

Recommendation:

11. The Ch a i r of the Committee of Adjustment should ensure all applications before theCommittee are appropriately tabled, considered and voted on in a mannerconsistent with the Rules of Procedure established for the Committee.

I S S U E 9: A P P R O P R I A T E N E S S O F C O M M I T T E E R E F E R A L TO T H E N O R T HY O R K C O M M U N I T Y C O U N C I L

- - --

Date Time Event Description- - -- _10/_14/_05_. Business.-

HoursCitvSolicitorissues

_City_Solicitor issues opinion requested.byJIlity-.Clerk.i-egarding_.the_..appropriateness of the Cotmnittee of Adjustment referral of 2737Keele and 0 Bayview Avenue applications to the Noi t l i York

opinion Community Comicil for flirther community consultation.

Background

A t the October 6, 2005 meeting, the Committee of Adjustment voted to refer the 2737 Keele and0 Bayview Ave applications to the North Y o r k Community Council to consider whether or notthese applications should receive further community consultat ion. The mot ion referring theseapplicadons to the North Yo r k Community Council read as follows:

" . . . .that the application be DEFERRED to allow North Yo r k Community Council toconsider whether or not a community consultation meeting or meetings should be held toobtain more public input on the proposed variances, and should it be decided to hold apublic meeting, to anange the date, time, location, and send out appropriate noticesincluding newspaper advertising for such meeting. It would be suggested that a t h i r dparty fac ili tator run the meeting and that a report on such meeting(s) be prepared forconsideration by Community Council and the Committee of Adjustment. CommunityCouncil may consider the cost of such meeting(s) be borne by the applicant. Should thisprocess not be completed by November 30, 2005, the Committee of Adjustment w i l lrehear the matter on December 1, 2005."

- 4 2 -


46/53


47/53

Councillor F i l i o n ) . The similarit ies taken f r om this report relate to developing criteria for the useo f professional faci litators for community meetings for some applications, and coverage of thecost of using such professional facilitators.

The aforementioned report was a public document by October 5, 2005 at the time the motion wasbrought forward by die Chair for consideration by the Committee. As such, there would be norestrictions to formulating a motion based on its contents. However, the report was not part ofthe information available to the Committee at its meeting on September 22, 2005 when theapplications were originally reserved and taken up again. However, it may have been used bythe Chair to formulate changes to the original motion outside the publ ic arena.

Recommendation:

12. The Committee of Adjustment, as a quasi-judicial tribunal that is required by lawto operate at arm's-length from and independently of City Counci l should notrequest Community Councils or other legislative bodies to intervene on applicationsconsidered by the Committee.

I S S U E 10: T H E M A N N E R IN W H I C H T H I S M A T T E R WAS B R O U G H T B E F O R ET H E N O R T H Y O R K C O M M U N I T Y C O U N C I L

Date Time Event Description10/18/05 9:30 a.m. North Yo r k

CommunityCouncilMeeting

Councdlor Shiner brings forward an in-camera motion related tothe Conimittee o f Adjustment's handling and referral of the threeapplications in question. Based on this meeting, the North YorkCommunity' Council recommended the fol lowing to City Councd;

(1) that City Council adopt the recommendations of the NorthYo r k Conmiunity Council contained in the confidentialcommunication (October 19, 2005) from die North YorkCommunity Comici l ; and

- 4 4 -


48/53


49/53

that in accordance w i t h the provisions of the Municipal Act, discussions pertaining to thismatter be held in camera, because the subject matter relates to personal matters aboutidentifiable individuals, including municipal or local board employees.

The Issue in Relation to the October 18, 2005 Event

As discussed earlier, two Councillors ( F i l i o n and Shiner) were informed that the 2737 Keele and0 Bayview Avenue applications had been approved by the Committee of Adjustment onSeptember 22, 2005. This information was provided by the Deputy Secretary-Treasurer. TheDeputy Secretary-Treasurer believed that he was acting in accordance w i t h the directive receivedon the evening of September 22, 2005 f rom the Committee Chair. _

I t appears that once Councillor (Shiner) was informed that the 2737 Keele and 0 BayviewAvenue applications had been approved on September^2, 2005, Ihen subseguently rescm andrevised on October 6, 2005, he questioned the Committee's handling of the process. The basisfor the Councillor's concern was the Committee's authority to first approve an application inaccordance w i t h the Committee's Rules of Procedure, then subsequendy rescind and revise theprevious vote in a manner not in compliance w i t h these rules.

Prior to bringing the matter forward to the North Y o r k Community Council, Councillor Shinerconsulted w i t h the Integrity Commissioner to seek assistance in pursuing his concerns. TheIntegrity Commissioner informed the Council lor that no formal mechanism appeared to exist toaddress concerns related to Committee of Adjustment actions. However the IntegrityCommissioner also stated that any such issues could probably only be raised w i t h Ci ty Council.I n view of the fact that matters brought to Counci l typically come through Committee and theNorth Yo r k Community Council is a Committee of Council, Councillor Shiner brought diematter forward in-camera to the North Y o r k Community Co imc i l .

- 4 6 -


50/53


51/53

Background

A t the October 20, 2005 meeting, the Chair made several amendments to the October 6, 2005minutes relating specifically to the 2737 Keele and 0 Bayview Avenue applications. Changeswere made to the movers of the motions to defer applications to the North Yo r k CommunityCouncil made on October 6, 2005. Li addition, the October 6, 2005 minutes were furtheramended to add that a "verbal report of the Chairman on procedural matters" was provided to theCommittee on October 6, 2005. Original staff minutes of the October 6, 2005 meeting clearlyindicate names of movers and seconders to motions related to 2737 Keele and Bayviewapplications. As we l l , the Secretary's minutes of October 6, 2005 do not reflect that the

-Committee Ghair-provided-a-verbal-reportQn procedural mattersv

The Issue in Relation to the October 20,2005 Committee Meeting -- -

The Rules of Procedure for the Committee state that the Deputy Secretary-Treasurer isresponsible for preparing the minutes of each hearing and that the panel w i l l review and adoptthe minutes o f the previous hearing prior to considering the current agenda. However, at theOctober 20, 2005 meeting, the Committee Chair postponed the adoption of the minutes of theOctober 6, 2005 meeting indefinitely, and re-introduced the adoption of the minutes at a laterpoint in the meeting, at which time, the minutes were adopted w i t h the changes requested by theChair.

The reasons as to why the Chair made changes to the minutes noted above are unknown.

Recommendation:

14. The Ch a i r of the Committee of Adjustment, Committee of Adjustment membersand appropriate support staff should ensure that only issues discussed at regularCommittee meetings be included in the minutes prior to their adoption. Onceprepared, with the exception of minor revisions allowed under the Rules ofProcedure, minutes should not be amended.

- 4 8 -


52/53


53/53

Our review focused on the North Yo r k Committee of Adjustment process related to the threeapplications in question and did not include a review of the content, reasonableness or technicalaspects of the three applications in question.

The report identified certain procedural irregularities relating to the way the Committee ofAdjustment dealt w i t h three specific applications. We have discussed these proceduralirregularities w i t h the Ci ty Solicitor who is reporting separately on the significance of theseissues.

Our report also contains specific recommendations in relation to Committee of Adjustmentprocesses, procedures and deliberations. Addressing the recommendations in this report w i l lprovide for more effective processing of applications brought before Toronto Committees ofAdjustment

G:\AGO\2006\Reports\DepLrtyCity Mgr FA\Planiiing\Ctee of .A.dju(ment (Final) April 13 2006.doc

toronto auditor general report

Documents