Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
March 23, 2023
CASE NO(S).:
OLT-22-002137
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant:
Oulahen Team Realty Inc.
Subject:
Request to amend the Official Plan – Failure of the City of Toronto to adopt the requested amendment
Description:
To permit the construction of three residential towers
Reference Number:
21 193212 NNY 18 OZ
Property Address:
48, 50, 56, 58 and 60 Avondale Avenue
Municipality/UT:
Toronto/Toronto
OLT Case No:
OLT-22-002137
OLT Lead Case No:
OLT-22-002137
OLT Case Name:
Oulahen Team Realty Inc. v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant:
Oulahen Team Realty Inc.
Subject:
Application to amend the Zoning By-law – Refusal or neglect of the City of Toronto to make a decision
Description:
To permit the construction of three residential towers
Reference Number:
21 193212 NNY 18 OZ
Property Address:
48, 50, 56, 58 and 60 Avondale Avenue
Municipality/UT:
Toronto/Toronto
OLT Case No:
OLT-22-002138
OLT Lead Case No:
OLT-22-002137
Heard:
March 15, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel*/Representative
Oulahen Team Realty Inc.
D. Bronskill*
("Applicant"/ "Appellant" / "OTRI")
C. Barnett*
E. Barz*
T. Kljakic (student-at-law)
City of Toronto ("City")
S. O’Connor*
C. Dougherty*
Toronto Standard Condominium Corporation 1782 ("TSCC")
William Wang
Malcolm Eylott
Self-represented
Haochuan Wu
Self-represented
MEMORANDUM OF ORAL DECISION DELIVERED T.F. NG ON MARCH 15, 2023 AND ORDER OF THE TRIBUNAL
Introduction
1This is the third Case Management Conference ("CMC") for the appeals of Oulahen Team Realty Inc. (the "Applicant") of the non-decisions of the City of Toronto ("City") with respect to applications for Official Plan Amendment ("OPA") and Zoning By-law Amendment ("ZBA") pursuant to s. 22(7) and s. 34(11) of the Planning Act. The applications were to permit the construction of three residential towers of 26, 37 and 40 storeys in height at properties municipally known as 48, 50, 56, 58 and 60 Avondale Avenue ("subject site").
Party Status
2At this CMC, the Toronto Standard Condominium Corporation 1782 ("TSCC"), having submitted a party status request as directed, was granted Party status, replacing William Wang as Party. The Tribunal granted this on the Parties’ consent and upon request of Mr. Wang. TSCC will take an active part in the proceedings with respect to presentation of its case and calling of expert witnesses.
Procedural Order/Issues List
3David Bronskill, counsel for the Applicant, informed the Tribunal that the Procedural Order ("PO") and the Issues List ("IL") were revised and filed with the Tribunal by March 8, 2023. Counsel and Mr. Wang (for TSCC) had further scoped two issues at the CMC which will be amended in the IL. With Party status being granted to TSCC, the PO will be amended to reflect the changes. As such the Tribunal directed that the revised PO be forwarded to the case coordinator by March 22, 2023 and that the revised PO will govern the proceedings.
4The previously fixed nine-day hearing starting at 10 a.m. on August 8, 2023, will proceed as scheduled.
Notice of Motion
5The Applicant’s Notice of Motion for determination as to whether Goodmans LLP is in conflict of interest in its representation of the Applicant was then heard. Chris Barnett and Evan Barz acted for the Applicant only for the purpose of the Motion.
6The Motion dated January 26, 2023, and supported by the Affidavit of Jeffery Oulahen sworn January 26, 2023, primarily requested a declaration that Goodmans LLP, the current legal firm representing the Applicant is not in a conflict of interest situation, when a different lawyer in the firm represents the Applicant, despite another lawyer in the firm having represented Malcolm Eylott (a previous client of the firm’s) in another matter.
7Mr. Barnett, counsel for the Applicant, argued and submitted that Mr. Eylott was represented by Max Laskin in a Minor Variance ("MV") matter that concluded in February 2018, five years ago. That matter had ended favourably for Mr. Eylott through a settlement with the City (where the Applicant took no position).
8The Applicant is represented by David Bronskill, a different lawyer in an Official Plan Amendment and a Zoning By-law amendment matter which retainer began in January 2021. These current matters are totally different from the concluded minor variance matter.
9Further, Mr.Eylott’s retainer with the firm for the MV at the Toronto Local Appeal Body ("TLAB") had concluded before the firm was appointed to act for the Applicant. In the Applicant’s matters at the Ontario Land Tribunal, Mr. Eylott was granted party status and was only an added party in these planning appeal matters. Planning appeal hearings are public in nature. There would be no confidential information transmitted.
Additionally, when Mr. Eylott raised the spectre of conflict, the firm had taken the extra steps to move the physical hardcopies of the Eylott MV file to an offsite storage and to erect an Ethical Wall in the firm surrounding the Eylott’s file and MV matter. No information was ever imparted to Mr. Bronskill from Mr. Laskin.
10Mr. Bronskill had sworn an affidavit on January 26, 2023, attesting to the fact that his first contact with the Applicant was in January 2021. The Applicant informed him that Mr. Laskin had acted for Mr. Eylott in a MV matter at TLAB whereupon he spoke to Mr. Laskin to consider if there was a conflict. He stated that Mr. Laskin did not impart any confidential information on the Eylott file to him. Having ascertained that the Eylott MV appeal at TLAB was concluded and the retainer had ended, he proceeded to initiate file opening to review the Applicant for conflict, and no conflict was identified. Mr. Bronskill further attested that he did not at any time receive any information on Mr. Eylott’s previous MV matter.
11Kenneth Crofoot, the Goodmans’ Office counsel confirmed in his affidavit sworn January 26, 2023, that Mr. Bronskill had no access to Eylott’s case materials and that Mr. Bronskill did not receive any confidential information.
12Mr. Eylott relied on his affidavit sworn February 9, 2023, in response to the motion. He stated he retained Goodmans LLP on August 4, 2017. As a client of the firm, there is no expiry of the retainer. He and his wife appointed Max Laskin to assist in obtaining the necessary permits for construction of their family home. Goodmans has now been retained by the Applicant in a matter of specific adverse interest directly related to their prior retainer.
13He stated that there is conflict as Goodmans has confidential and sensitive information in relation to his retainer for the TLAB application and this information may directly or indirectly benefit the Applicant.
14He appointed Mr. Laskin to act for him in the TLAB minor variance matter which was successful. The negotiation process was on matters concerning the Applicant’s plans to construct a condo tower and its impact on his property. He is an opposing party to the Applicant’s proposed development which is adjacent to his house on three sides. He was concerned that Mr. Laskin’s discussions with him and his wife may be shared with Mr. Bronskill and the Applicant. These conversations included the strategies that he and his wife could pursue in response to various potential outcomes of the TLAB process. It could be prejudicial to him and his wife if this information became known by others beyond Mr. Laskin.
15In response to the motion, Mr. Eylott submitted that there is no time limit on the terms of his retainer and there is no expiry. The subject matter at the heart of his prior retainer with Goodmans is the same subject matter for the same property as it relates to the Applicant’s application. It is unreasonable to purport that confidential information could not have been disclosed. There is no reliable means to confirm whether any such information was disclosed. The opportunity for disclosure exists. Meetings of Goodmans and himself that led to the TLAB meeting were absolutely confidential. The risk of disclosure will always be present and the "reasonable" institutional measures implemented after he raised complaints may manage the risk but never eliminate it. Only representation by two independent firms can greatly reduce the risk.
16After hearing Counsel’s submissions and Mr. Eylott’s response, the Tribunal is persuaded that no confidential information relating to the MV was transmitted to Mr. Bronskill.
17The legal firm Goodmans LLP could continue to represent the Applicant for the following reasons.
Analysis/Findings
18In this matter the Tribunal needs to balance the high standards of the legal profession and the right of the Applicant not to be deprived of its counsel without good cause. The test that the Tribunal relies on is "Whether the public, represented by the reasonably informed person would be satisfied that no use of the confidential information would occur?" (see MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 SCR 1235).
19Justice Sopinka in MacDonald Estate required two questions to be answered:
Did the lawyer receive confidential information attributable to a solicitor/client relationship relevant to the matter at hand?
Is there a risk that it will be used to the prejudice of the client?
20Both questions are answered in the negative. Mr. Bronskill did not ask for nor received any information or material from the Eylott’s file handled by Mr. Laskin. There was no confidential information on the Eylott MV matter that is relevant to the OPA/ZBA matter that Mr. Bronskill is handling. The physical hardcopies of the Eylott MV file were kept in Mr. Laskin’s personal filing cabinet and then subsequently moved to an offsite storage. The firm had set up institutional measures and Ethical Walls that prevent access to the Eylott MV files by Mr. Bronskill. There is no risk that any confidential information, if any, from the Eylott’s MV file would be used to Mr. Eylott’s prejudice.
21It should be noted that Mr. Eylott did not provide in his response affidavit, any evidence of or some particulars of what type of information or alleged confidential information has been disclosed to Goodmans LLP and how the information sufficiently relates to the matters before this Tribunal. He has generally asserted that he shared with Mr. Laskin the Eylott’s "short term desired outcomes for the TLAB process, our longer term desired outcomes as regard the possible future development of a 65 metre condo building…and our strategies for the various scenarios that may unfold". He also stated that "during our discussions with Mr. Laskin, my wife and I divulged confidential information that could be used by the Oulahen team to our disadvantage to the tune of several millions of dollars".
22There is simply no cogent evidence for the Tribunal to ascertain if confidential information was disclosed to Mr. Laskin. Although no specifics of the confidential information are required, Mr. Eylott should present some particulars of the information said to be confidential and its relevance to the matters at hand. Bald assertions are not enough to establish sufficient relationship between the retainers.
23The TLAB hearing and subsequent written decisions are matters of public record and not confidential information.
24In this Tribunal, the OPA and ZBA appeals are matters of public interest. There is "no lis" between the Applicant and Mr. Eylott (see case Levine v Toronto, (2009) 62 O.M.B.R. 11 – the contest of planning opinions is completely open and accessible in the public domain).
25Mr. Eylott failed to persuade the Tribunal on the kind of prejudice that he has suffered or will suffer in the OPA and ZBA matters should Mr. Bronskill continue as counsel for the Applicant.
26Mr. Eylott did not disclose to the Tribunal, when he requested for and was granted party status on July 22, 2022, that he will contest Mr. Bronskill’s eligibility to continue as counsel for the Applicant. In fact, he only made his complaint on August 29, 2022, after the Tribunal’s first CMC decision issued on August 26, 2022.
27On the other hand, Mr. Bronskill swore in his affidavit that he did not seek nor have access to any file materials relating to Mr. Eylott’s MV matter handled by Mr. Laskin. He had also done his due diligence with respect to conflict searches in his firm’s client management database and on the Applicant to satisfy himself that there was no conflict in accepting the new retainer.
28It is noted too that the new retainer was for different subject matters, different properties and in a different Tribunal. The Eylott MV was in TLAB and the subsequent OPA/ZBA matters are in this Tribunal.
29The sworn Affidavit of Mr. Crofoot, the firm’s legal counsel, supported what Mr. Bronskill stated. Mr. Crofoot disclosed that he reviewed the electronic records document management system of the firm and he stated that Eylott’s file contained no records that could be considered confidential. He confirmed that the hardcopies of Mr. Eylott’s file which were originally kept in Mr. Laskin’s personal file cabinet had subsequently been moved to an offsite storage. Further, an Ethical Wall was established over Eylott’s file in the firm’s electronic document system. This measure ensured that no one other than only a few authorized persons had permission to access the electronic file. He stated that at no time did Mr. Bronskill access any of the documents in the Eylott’s electronic file. The documentary record exhibited in the affidavit clearly showed that Mr. Bronskill did not access nor obtain any information from Mr. Eylott’s electronic file.
30Despite the inference that lawyers in the same legal firm will likely share clients’ information, the Tribunal is satisfied that counsel Mr. Bronskill (there is no reason to doubt his fides) had discharged the burden of dispelling that inference. He had done his due diligence, his required conflict searches and he did not receive any confidential information on the Eylott’s file.
31The Tribunal is further satisfied that the Ethical Wall was set up promptly and there is no evidence presented to the Tribunal, that confidential information, if any, prejudicial to Mr. Eylott, had been shared with Mr. Bronskill. The Tribunal finds that the matter handled by Mr. Bronskill is an entirely different matter, for a different client and for different properties.
32In the circumstances, a reasonably informed member of the public in possession of the above-stated facts and knowledge would consider that no confidential information was obtained by Mr. Bronskill or would be misused by him. In other words, the reasonably informed person would be satisfied that no use of confidential information would occur.
33The Tribunal states that in matters of an application to remove or retain counsel, the appropriate order is either one directing a removal or a retention (a continuation). The Tribunal shall so order retention pursuant to its authority under s. 9(4) of the Ontario Land Tribunal Act.
ORDER
34The Tribunal Orders that:
a. The Motion is allowed in part.
b. The Applicant may continue to retain Goodmans LLP as solicitors in the Official Plan Amendment and the Zoning By-law Amendment appeals.
c. Toronto Standard Condominium Corporation 1782 is granted Party status, replacing William Wang.
d. The revised Procedural Order is to govern the proceedings.
35The Member is not seized.
"T.F. Ng"
T.F. Ng
MEMBER
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal ("Tribunal"). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.