uncharted.ca

MY WARNING TO FSCO, BENEFIT PLAN ADMINISTRATORS, ROYAL HOST, WESTMOUNT KEELE, RCMP, CLIFF EVANS and WHOEVER ELSE is connected to this issue in some way:

...um, I don't enjoy being confused or lied to.

I was shocked to learn that this plan, being fully funded in 1999 with a surplus of $961,000.00, had by 2002 developed a solvency deficiency of $2.5 million which has since ballooned to approximately $13 million.

This is particularly alarming since other documents on file at your office attest to the fact that during the period of 1999 - 2005, the pension plan's investments had high rates of return (13% in 2002) as well as a growing membership base. Actuarial reports for recent years offer no explanation for this at all. One actually states rather smugly that it's pointless to look at these details. Yet during this period a huge solvency deficiency developed and the plan's transfer ratio plummeted from 1.0 to 0.67.

Is this cut from a letter you got from the FSCO? Or is a letter you sent them? I'm assuming it is from them, but seldom is an employee that blunt about the facts.

Westmount condo must go through public meetings before being developed

'It should be through the full planning process': Moscoe
BY SUSAN O'NEILL
October 30, 2007 12:07 PM

The owners of a North York condominium project won't have the opportunity to redevelop a parking garage located behind the former hotel without filing an official planning application.
Ward 9 (York Centre) Councillor Maria Augimeri attempted to convince her colleagues last Tuesday to include the Westmount condominium, at 2737 Keele St., in the Wilson Avenue study area, thereby enabling the property to be revitalized.

But Toronto council voted to exclude the site, which means the developer can't pursue a plan to build an apartment on top of the five-storey parking garage without a public process.

"The applicants made a planning application to convert the hotel that went through due process. There was no talk of stacking a building on top of the cement garage at the rear of the property," said Ward 15 (Eglinton-Lawrence) Councillor Howard Moscoe. "If the proponents of this proposal want to do something with this proposal, let them come through the front door, let them put in an application, let them hold the public hearings."

Had the property been included in the study area, the developer would have had the rights to build up to 10 stories on the site, without having to hold a public hearing, staff said.

Councillors were told that no planning application has been filed.

However, the North York committee of adjustment refused the applicant's two minor variances, which sought to develop an apartment on top of the parking garage.

"If you've seen the pictures of the area that is going to be redeveloped you'll see that it's a five-storey concrete parking garage and that if redeveloped that will certainly take the eyesore away from the community," said Augimeri, who presented a petition in support of the redevelopment signed by residents living in the converted hotel.

"There is no way to fix it except to put a new face on it," Augimeri added. "The new facade will make it fit into the streetscape and make it more attractive and that's one of the reasons the community is supporting it."

Augimeri's motion, which was defeated at North York Community Council, was lost in a 16-15 vote at the city level.

"A project may and perhaps should go forward with respect to this garage but it shouldn't be done in this way. It should be through the full planning process," Moscoe said.

COURT FILE NO.: 36/07
DATE: 20071203

SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT

JOHN AND RANMALIE BROOKER
Appellants

- and -

INDEPENDENCE WAY INC.
Respondent

BEFORE: Mr. Justice Carnwath

COUNSEL: John Brooker, for the Appellants
Mr. F. Feldman, for the Respondent

HEARD: November 16, 2007

E N D O R S E M E N T

CARNWATH J.:

[1] The Brookers appeal from the judgment of Deputy Judge Poot, Small Claims Court, in which he dismissed their action against Independence Way Inc. for return of a deposit. The Brookers had also sued for disgorgement of profits on the re-sale of the unit they had agreed to buy. By order, both actions were tried together.

[2] The Brookers had purchased a condominium unit from plans and the location of the furnace was changed.

[3] There are three issues to be decided:

a) Did the Deputy Judge misapprehend the evidence?

b) Should the matter be sent back for a new trial?

c) Did the change in the location of the furnace constitute a fundamental change to the Agreement of Purchase and Sale?

[4] The unit to be purchased is shown at Tab 6 of the Appeal Book in schematic form. Mr. Brooker testified this document was shown to him at the time he signed the Agreement of Purchase and Sale. The plan shows a sliding door separating the powder room from a room marked W/D and F.H.W. Mr. Brooker testified this room was to contain a stacked washer and dryer (W/D) and a hot water heater with the unit’s furnace stacked on top (F.H.W.).

[5] The Agreement of Purchase and Sale was signed December 7, 2003.

[6] Mr. Silver, President of Independence Way Inc., testified that in the summer of 2004, a decision was taken to move the furnace into the area marked “COATS” on Tab 6, otherwise described in the evidence as the front hall closet.

[7] Mr. Silver confirmed that the Brookers were not told of this change. On November 17, 2005, approximately a year later, the Brookers were summoned to a pre-delivery inspection. They learned for the first time that the furnace had been moved. On inspection, they learned that the furnace took up one-half of the closet marked “COATS” and the back wall of the remaining space was six inches from the doors. They protested vehemently, but to no avail.

[8] The Brookers spent the next seven weeks attempting to persuade the vendor something had to be done about the closet, but the vendor put them off and, basically, refused to discuss the matter.

[9] On January 4, 2006, the Brookers purported to rescind the Agreement of Purchase and Sale. They issued their Statement of Claim in Small Claims Court on January 26, 2006.

(a) The Misapprehension of the Evidence

[10] The trial judge based his decision on the wrong closet. At p. 3 of his reasons, he found:

Sometime prior to the proposed date for the delivery of possession of the Unit to the Brookers at a pre-delivery inspection (“PDI”) they learned that Independence Way had decided to relocate the furnace to the Walk in closet located between the 4 piece ensuite and Master suite and that for that purpose the walk in closet was apportioned into 2 sections, one containing the heater (nearest the demising wall) and the other the closet.

[11] A glance at Tab 6 shows the trial judge had found the furnace was in the walk-in closet in the master bedroom, rather than the closet marked “COATS”, otherwise referred to in the evidence as the front hall closet. His findings of fact as regards the closet must be overturned since he fixed on the wrong closet.

(b) Should the Matter Go Back for a New Trial?

[12] Pursuant to s. 134(1) of the Courts of Justice Act, I may make any order or decision that ought to or could have been made by the court appealed from or order a new trial. I conclude it would add unnecessarily to the expenses of this litigation to order a new trial. Pursuant to s. 134(4) of the Courts of Justice Act, I may, in a proper case, draw inferences of fact from the evidence and that is what I propose to do.

(c) Did the Change in the Location of the Furnace Constitute a Fundamental Change to the Agreement of Purchase and Sale?

[13] Mr. Brooker testified that the front hall closet was rendered useless by the placement of the furnace in one-half of the closet and by bringing forward the rear wall of the closet to within six inches of the closet doors. I find this represents a change to the original plans viewed by Mr. Brooker. The question is whether the change is a fundamental change as discussed in two Ontario Court of Appeal cases, Danko v. 792207 Ontario Ltd. (c.o.b. Marbrook Homes), [2004] O.J. No. 1542 (C.A.); and Kingsgate Homes Ltd. v. Goliszek, [2001] O.J. No. 1258 (C.A.).

[14] In Danko, above, the purchasers were to receive a cathedral ceiling over the family room. The Court held there was evidence which subjectively and objectively supported a finding that the cathedral ceiling was a crucial feature of the home. The Court agreed with the trial judge that the provision allowing unilateral changes by the vendor was not unlimited and did not apply to fundamental changes. A six-week delay in rescinding the contract after learning the ceiling was being eliminated was not unreasonable and did not give affirmation of the vendor’s actions. The purchasers were entitled to the return of their deposit.

[15] In Kingsgate, above, the purchasers expected a house with a detached garage at the side instead of the front. The trial judge found this to be a fundamental change and the Court of Appeal concluded it was open to the trial judge to so find and would not disturb his finding.

[16] The subjective evidence of Mr. Brooker given at trial was that the front hall closet was totally useless and, if he had known of the change of the location of the furnace, he would not have entered into the Agreement of Purchase and Sale. This evidence goes to the question of whether the change was a fundamental change.

[17] In the course of attempting to solve his problems, Mr. Brooker obtained the permission of Independence Way to try and sell the unit after he learned of the change in location of the furnace. He testified that two prospective purchasers immediately lost interest in purchasing the unit when they inspected the front hall closet and noted its configuration. This objective evidence goes to the question of the nature of the change.

[18] When I consider the subjective and objective evidence given at trial, I am persuaded that the changed furnace location constitutes a fundamental change within the meaning of Danko and Kingsgate, above. Schedule “B” to the Agreement of Purchase and Sale, which contains an acknowledgement by the Brookers that the location of the furnace is to be determined by the architect, may not be located as shown on the brochure and they shall be deemed to accept any such change, can not be construed as unlimited and does not apply to fundamental changes. As in Danko, above, a six or seven-week delay in rescinding the contract after learning of the furnace change, is not unreasonable and does not constitute affirmation of the vendor’s actions.

[19] The appeal is granted. Independence Way Inc. is ordered to return the deposit in the sum of $10,000, recognizing the limit of the Small Claims Court jurisdiction. The Brookers shall have their disbursements, to include the court costs for the appeal and the cost of ordering the transcript.

___________________________

CARNWATH J.

DATE: 20071203

Seriously? The architectural change to six(6) inch deep closets merited this much legal debate/determination/wrangling? And the first honorable dimwit ruled in the vendor's favour? The vendors should be convicted for vexatious use of court resources.

City Council Decision
City Council on September 24 and 25, 2008, adopted the following motions:

1. City Council adopt the confidential recommendations in Attachment 1 to the report (September 22, 2008) from the City Solicitor.

2. City Council authorize the public release, at the end of the Council meeting, of the confidential instructions, if adopted by Council.

The following recommendations and Appendix 1 contained in Confidential Attachment 1 to the report (September 22, 2008) from the City Solicitor, are now public. The balance of Confidential Attachment 1 remains confidential, in accordance with the provisions of the City of Toronto Act, 2006, as it contains information related to litigation or potential litigation and advice or communications that are subject to solicitor-client privilege:

1. City Council authorize the City Solicitor and other necessary City staff to attend the Ontario Municipal Board Hearing resuming on September 26, 2008, to support an amendment to By-law No. 1147-2007 to permit a maximum 10-storey, 166 dwelling unit apartment building incorporating the existing parking garage structure at the rear of 2737 Keele Street, as more particularly described in the excerpt from the draft Minutes of Settlement attached hereto as Appendix 1.

2. City Council direct and authorize the appropriate City officials to take the necessary action to give effect thereto, including the execution of Minutes of Settlement having content substantially as set out in Appendix 1.

Appendix 1
The Parties agree to the settlement of all matters relating to OMB Case Nos. PL071106 (File No. PL071106), PL060079 (File No. V060046) and PL071106 (File No. PL081134) on the following terms and conditions:

(a) The Parties agree:

(i) to jointly request the OMB to adjourn the scheduled hearing in order to permit the Minutes herein to be subject to a Settlement Report by counsel of the City of Toronto to its Council on or before September 26, 2008; and
(ii) the Parties are to re-attend the adjourned proceeding on Friday, September 26, 2008 ("Settlement Hearing") to mutually support and defend the Minutes at the OMB, or as otherwise agreed upon in order to give effect to the Settlement;

(b) The City shall support the rezoning of the Westmount Lands in order to permit a development comprised of the following regulatory elements as they relate to the new construction:

(i) Height (Maximum) 30 metres measured from a fixed point of 184 metres above sea level;
(ii) Storeys (Maximum) 10 storeys;
(iii) Gross Floor Area (Maximum) 27,000 m2;
(iv) Units (Maximum) 166 units;
(v) Angular Plane 45° measured from the rear lot line (Maximum)
(vi) Building Façade Setback Introduction of a one-storey lobby podium at grade with the provision of a 4.0-metre building setback from the new public road connecting Keele Street and Wilson Avenue through the Westmount Lands (the “new public road”), save and except to the extent where the existing garage structure and any new vertical building extension thereof encroach within this 4.0 metre setback area;
(vii) Residential Tower Stepback provision of a minimum 2.0 metre front building façade stepback for the residential tower commencing at the 5th floor level and above;
(viii) Parking (A) A minimum of 590 parking spaces,
including visitor parking spaces, shall be provided;

(B) Despite (A) above, all parking spaces shall be provided only at a minimum of:
(1) 1 parking space for each dwelling unit;
(2) 0.1 visitor parking spaces for each dwelling unit of which 25 may be provided in a shared arrangement
with the required commercial parking supply requirements; and
(3) 1 parking space for each 29 m2 of gross floor area devoted to all commercial uses other than an Apartment House Dwelling and accessory uses thereto, of which 25 parking spaces may be provided in a shared arrangement for the required residential visitor parking supply;

(C) All or part of the required parking spaces may be provided within the existing garage structure, above and/or below Established Grade, that exists, in whole or in part, on the date of enactment of the proposed zoning by-law, attached as Appendix “A” to the OMB Order (Schedule “B” hereto);
and
(D) Each parking space shall have a minimum width of 2.6 metres and a minimum length of 5.5 metres.
(ix) Section 37 $200,000.00 contribution towards capital improvements/public art at Hanover Park.
(c) The following design principles, as generally reflected on the sketches, attached hereto as Schedule "A" and forming part of these Minutes, shall be further explored and incorporated as part of the detailed site plan review and consideration:
(i) provision of an architectural treatment for the 9th and 10th floors to visually lighten the bulk of the building;
(ii) provision of an architectural treatment and massing at the north-west corner of the building as it is the terminating façade viewed from Wilson Avenue;
(iii) provision of an improved façade for the existing garage structure, including upgraded architectural finishes for existing walls and openings (screen/louvers etc.), while maintaining a minimum of 50% open air condition, and possible creation of an "animated room" with clear glazing at the north-west terminus of the existing garage structure that is most visible from the Wilson Avenue road access;
(iv) all terraces/balconies to have planters with a minimum width of 1.0 metre on the east and south edges to mitigate any potential overlook condition; and
(v) the servicing bay shall be located adjacent to the north wall and at the west end of the existing garage structure screened from neighbouring properties and public roads by a masonry/concrete wall. Westmount shall ensure a flag person is available to facilitate truck egress movement (backing out onto the new public road). As part of the final site plan approval/agreement, the Parties will explore the possibility of a driveway connection with 1055 Wilson Avenue to facilitate forward truck movements only.

Confidential Attachment - The receiving of advice that is subject to solicitor-client privilege
Background Information (City Council)
Member Motion MM24.29 with attached Confidential Fiscal Impact Statement (September 25, 2008) from Deputy City Manager and Chief Financial Officer

...to permit a maximum 10-storey, 166 dwelling unit apartment building incorporating the existing parking garage structure at the rear of 2737 Keele Street...

Damn! Is it too late to change my guess on hoffa's final resting place?

Sovereign Capital Group (ONT) Limited (Single location)
Address: 2737 Keele St Suite 902
US SIC Core code:
726 - Funeral service and crematories
NACE Rev. 1.1 Core code :
9303 - Funeral and related activities
NAICS 2002 Core code :
8122 - Death Care Services