With an attention grabbing headline -"A red-tape nightmare on Brunswick Ave" the May 8 Toronto Star's front page story commences to tell a woeful tale of a couple's fight with city hall to retain an illegally erected addition to their property and clearly attempted, in my opinion anyway, to paint the owners as old and sickly victims of a mean, unjust, biased and vengeful system of beaureaucrats through 4 hierarchies all the way up to the Ontario Court of Appeals.
Arguing their case is their harvard educated daughter, Pauline Tseng, a New York based lawyer with a certificate in conflict resolution.
Incredulously, they now plan to appeal to the U.N's Human Rights Committee.
It may be entirely coincidental that this Pauline Tseng from Canada, is/was associated with 2 U.N divisions. I'll discuss this later.
If the article was intended to raise a guilty verdict against the city via the public court of opinion, the over 200 comments on their web site suggests it seriously backfired. Nor was I moved to sympathy for these owners or convinced that what I read made a case for them and after doing my own research I became totally vexed with the Star's reportage and annoyed with the owners for trying to obtain after the fact an exemption from a zoning by-law they absolutely and knowingly breached while blaming everyone but themselves for their troubles.
I put forward a synopsis of The Star's story and the missing facts for you to form your own opinions.
The Star's Story: It all began in May 2006, when two siblings purchased a large home on Brunswick Ave as a retirement home for the parents. It was a multiple offer situation where they won the property for $718,000 without including a home inspection condition. After taking possession, a home inspector and engineer recommended that "the termite-infested...rotting two-story, sinking, tearing away rear addition be torn down and rebuilt on solid footings." The sellers did not disclose previous fire damage to the home nevertheless at some point in time (not given) early on after taking possession, the buyers consulted an architect, engineer and home inspector.
The addition cost the new owners $80,000.
With the father, Pauline, her brother and sister out of country, the mother was left alone and she, being "hardly equipped to oversee" the project, "handed the keys to the contractor to do as the architect recommended."
No one sought any permits - "building or electrical." The sinking structure was demolished and a new 2 story 14 by 12 foot addition complete with 2 apartments was erected.
For some unstated reason, the city got wind of this and have engaged the Tsengs over the last 5 years. They want the structure taken down citing its illegality, that it is almost twice the depth allowed and that no permits were obtained.
The Tsengs in turn initially argued that the extra foot and a half footprint is a small variance since the old structure was built before zoning by-laws and that there are other houses in the area that go back farther on the lot than theirs and some who sought and received committee of adjustment approvals have erected structures that "brought their overall depth to twice what is allowed under current by-law."
"The ordeal" has cost the "elderly couple more than $200,000 in legal and other fees, their health and now possible eviction and demolition of the offending structure." The 74 year old father has had a stroke and suffered a heart attack since the fight with city began. His 68 year old wife "has osteoporosis and mobility problems, is under a doctor's care for severe stress."
20 Neighbours signed a petition against the addition. The Tsengs countered with 39 names who say they have no issue with the addition. One neighbour, Ingrid McCool stated that Pauline misrrepresented herself and didn't disclose that the addition had already been built, was illegally constructed and not the one that was previously there.
The Missing Facts: As published on the website of The Ontario Municipal Board and canLii.ca for the Ontario Court of Appeal. I could find nothing on the City of Toronto's web site.
The zoning by-law was amended in 1998 and allowed for a depth of 14 meters.
The structure extended to 24.64 meters.
There were three infractions as to size that did not pass by-law, not just one.
Tsengs applied for a permit to build a fire escape which would have further extended the structure thereby decreasing the allowable space between it and the detached garage even further.
Tsengs appealed the city's order to demolish to the OMB. The initial hearing was granted a postponement as their expert was on vacation. The OMB ordered both parties to have all their documents prepared and submitted for the next. The second hearing proceeded with Pauline Tseng acting as agent (no attorney privileges here) to the owners who happen to be her siblings - not her parents, arguing that the city's documents be disallowed because of a dating matter. The OMB ruled otherwise. Failing this she argued that since a city expert was sick and unavailable to attend it be disallowed. The OMB ruled his evidence had no bearing on the case and that further, her expert also failed to appear because he is on vacation, just as he was on vacation at the first hearing. Failing this she then charged that an OMB panel member was biased and sought to overturn the order. Upon being denied this also she said she would leave and not present her case. The OMB advised her to take 15 minutes to reconsider this as the city was there to present their case, that they will hear it and can only rule based on what evidence is presented.
Tseng decided to leave.
In her appeal to the Court, Tseng argued for overturning the order based on her submission that the OMB was biased. The court ruled otherwise, noted that she was expressly advised that the case would proceed based on submitted evidence, that she opted to leave without presenting hers and that she cannot now reserve the right to appeal that which she chose not to hear. Further, it was ruled that upon her leaving, the OMB was no longer required to hear any evidence and could have just dismissed her appeal but instead opted to deliberate and then correctly determined their decision. Finally, the court admonished Tseng for attacking the character of the OMB member as behaviour not fitting a person of the courts.
Other issues for consideration: My two cents worth.
The article claims they bought the property 5 years ago and for 5 years they have been battling the city. It is unknown why the city became involved, but suffice it to say that the matter took shape shortly after purchase.
Tsengs hired an engineer, inspector and architect after taking possession. Had they chosen to hire the architect to oversee the addition, permits would likely not be an issue. Instead they took the architects plans and to cut expenses, cut him out.
The building had fire damage, was sinking and falling away. These are obvious defects that should have been discovered by those who viewed the property as well as their REALTOR® - it is a redundant exercise to hire a home inspector after the fact when you've also hired an engineer and architect. Yet, the article is blaming the sellers for non-disclosure of the fire and the city for the Tseng's woes. They are victims of what? buyer beware? It may be that after exhausting all avenues, the sellers are being placed on notice for a possible lawsuit. They won't win this either given that the statute of limitations has expired. They could seek damages against the REALTORS® neither of whom is mentioned in the article. Why aren't they?
Who represented the Tsengs? Could it be a relative?
The by-law issues are deeper than the article suggests. The addition itself is not only illegal, so are its apartments. The necessary permits include not just the requirement for electrical and plumbing as the Star states but also the approval for secondary suites and fire code regulations.
Tsengs argue their case 1) based on other people being granted an exception. These people followed the requirements of the law, Tsengs did not. 2)That others did not have approval. If this ever succeeds as an argument then laws have no authority and cannot be enforced.
One of the owners according to OMB and court documents is a doctor - another daughter. Between her and her sister Pauline, the lawyer, intellectually speaking, would they not have enough common sense between them to enquire as to whether or not the City of Toronto would have by-laws governing building standards?
The Star's report is a blatant attempt to raise sympathy for the parents. Either reporter Dale Brazao did a very poor job of researching this story or his is a blatant attempt at raising sympathy for people who do not deserve same. Tsengs were effectively 69 and 63 when they purchased the property. These are not necessarily ages spritely enough to take on a rooming house and a large property. Whatever stress and health issues they have rest solely on their own and their childrens' shoulders, not the city's, not the OMB's and not the Court of Appeals.
As for Pauline Tseng, New York based lawyer with a certificate in conflict resolution. Her expertise is clearly not real estate law, litigation or for that matter Canadian legal proceedings. In researching her, I have only been able to find one similarly named attorney - a graduate of Cambridge's LLM's course and a member of the New York State Bar who worked for the U.N as a legal officer. Is it the same person?
Regardless, I highly doubt the Tseng case will be given even 5 seconds worth of consideration by the U.N's Human Rights Committee.
By the time all appeals all the way to the Hague are exhausted, this addition will have hit their wallets for at least 3 times the original expense, it will be demolished and the house, with all the publicity, will depreciate in value considerably.
And all because they want to win? save face? prove bias?
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