Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 01, 2025

CASE NO(S).: OLT-22-002507 (Formerly PL210238)

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: Lamb Sterling Corp.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit an 18-storey, 326-unit mixed-use development

Reference Number: 20 199975 STE 09 OZ

Property Address: 1405, 1407,1409 and 1409A Bloor Street West and 231, 231A and 229 Sterling Road

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-22-002507

Legacy Case No: PL210238

OLT Lead Case No.: OLT-22-002507

Legacy Lead Case No: PL210238

OLT Case Name: Lamb Sterling Corp. v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit an 18-storey, 326-unit mixed-use development

Reference Number: 20 1999975 STE 09 OZ

Property Address: 1405, 1407, 1409 and 1409A Bloor Street West and 231, 231A and 229 Sterling Road

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-22-002508

Legacy Case No: PL210239

OLT Lead Case No.: OLT-22-002507

Legacy Lead Case No: PL210238

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: City of Toronto

Request for: Request for Directions

Heard: March 25, 2025 by Written Hearing

APPEARANCES:

Parties Counsel/Representative*

City of Toronto R. Kallio D. Abimbola

South Junction Triangle Grows Neighbourhood Association C. Sweeny*

DECISION DELIVERED BY J. INNIS AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal concerns a motion brought by the City of Toronto (“City”) regarding the payment of witness attendance fees by the South Junction Triangle Neighborhood Association (“SJTG”). The motion arises from a nine-day hearing that commenced July 4, 2023, regarding an appeal by Lamb Sterling Corp. under sections 22 (7) and 34 (11) of the Planning Act. The appeal was filed in response to the City's failure to adopt a requested amendment to its Official Plan and failure to make a decision on a Zoning By-law Amendment application.

2On October 18, 2024, the Tribunal issued an Interim Order allowing the appeal in part, amending the Official Plan and Zoning By-law in principle, and withholding its Final Order pending confirmation from the City solicitor that the Applicant had satisfied all required conditions. The present motion concerns whether the SJTG, a Party to the proceeding, is required to pay $500 in attendance money for City witnesses who were summoned to testify at the hearing.

LEGISLATION

3Pursuant to sections 12 (1) and 12 (3.1) of the Statutory Powers Procedures Act (“SPPA”), which address the power to summon witnesses, and in accordance with section 13.1 of the Ontario Land Tribunal Act (“OLTA”), the Tribunal’s Rules of Practice and Procedure (“Rules”) set out the process for compelling witness attendance by summons.

4Section 34.04 (5) of the Rules of Civil Procedure requires that attendance money be provided to a summoned witness at the time of service. This subsection further specifies that the amount must be determined in accordance with Tariff A, which sets the witness fee at $50 per day of attendance. Further, Rule 13.7 of the Rules regarding serving the summons states as follows:

13.7 Serving the Summons Except in the event that it is impossible or impractical to do so, a summons must be served on the witness by personal service, no later than 5 days before the time for attendance. At the same time, the same attendance money to be paid as for attendance before the Superior Court of Justice shall be paid or offered to the witness.

5Rule 1.3 states that the Rules are to be “liberally interpreted to offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceeding”. Further, Rule 1.7 states:

The Tribunal expects compliance with these Rules and adherence to Tribunal orders arising from the application of these Rules by all parties and participants. If a party or participant to any proceeding has not complied with a requirement of these Rules or a Tribunal order, such as a procedural order and any requirement included therein, then the Tribunal has the discretion to determine the consequences of non-compliance and may grant necessary relief or exercise any of its powers authorized by legislation or regulation.

6Additionally, as the questions at issue include matters related to the granting of relief, section 9 (1) of OLTA, which states the following, shall be noted:

9 (1) The Tribunal has authority to make orders or give directions as may be necessary or incidental to the exercise of the powers conferred on the Tribunal under this or any other Act.

SUBMISSIONS

7The City filed an affidavit by Ms. Victoria Fusz, Senior Planner, in support of its position. Ms. Fusz’s affidavit outlines her understanding of the circumstances surrounding the subpoenas issued as requested by the SJTG, as well as her participation in the hearing proceedings. The affidavit also addresses the issue of outstanding payment for the subpoenaed witnesses, including herself and her colleagues.

The City

8The City sought the following relief:

a. An Order jointly requiring Ms. Cara Sweeny and the South Junction Triangle Grows Neighbourhood Association (“SJTG”) to pay $500.00 attendance money, by cheque payable to the Treasurer, City of Toronto and mailed to the attention of City of Toronto (“City”) lawyers Derin Abimbola and Ray Kallio (“Toronto Counsel”), 55 John Street (26th Floor, Metro Hall), Toronto, ON M5V 3C6, owed to the City as a result of the SJTG summoning four City staff;

b. An Order refraining Ms. Cara Sweeny and the SJTG from summoning any further City witnesses at the Ontario Land Tribunal (“OLT”) until Ms. Sweeny or the SJTG have paid the attendance money owed to the City; and

c. The costs of this motion.

9In support of its request, the City provided a chronology of events. On June 14, 2023, at the request of Ms. Sweeney on behalf of the SJTG, the Tribunal issued summonses for four City staff members to attend the nine-day virtual hearing, commencing July 4, 2023. The witnesses attended, provided evidence, and participated throughout the hearing. The City submitted the following:

10On the same day the summonses were issued, Ms. Sweeney inquired about the requirement to pay attendance money. The City advised that payment was necessary and provided instructions for submitting the funds. Despite following up on July 18, 2024, and August 21, 2024, no payment has been made. The City subsequently brought this matter to the Tribunal's attention.

11The City relies on Rule 13, which establishes that summoning a witness is not an automatic right. A summons will only be issued if the Tribunal is satisfied that certain criteria are met. Additionally, Rule 13.7 requires the attendance money to be paid at the time of personal service, with amounts determined by Tariff A of the Rules of Civil Procedure, which sets witness fees at $50 per day.

12The City further argues that under Rule 1.7, the Tribunal has the discretion to determine consequences for noncompliance with its Rules, including enforcement of attendance money payments. It cited past decisions of other tribunals similarly empowered by the SPPA, including Hamilton Automatic Vending Company Limited, [1989] OLRB Rep March 248 and later in Christopher Topple, [1090] OLRB Rep December 1344:

Where a summons is issued by this Board at the request of one of the parties to proceedings before it, that party is expected to effect service and pay conduct money in accordance with this requirement. It is on that basis that parties are provided with summonses at their request. Although neither the Labour Relations Act nor the Statutory Powers Procedure Act (“the SPPA”) expressly confers on the Board the power to enforce payment of conduct money, it seems to us that this must be a concomitant of the express power to summons and compel attendance of witnesses, particularly in circumstances where natural justice requires that that power be exercised on behalf of and at the request of parties to proceedings. It is part of the Board's process that conduct money be paid by the parties who request and effect service of a summons. It is arguably an abuse of the Board's process to make use of a summons without discharging the corresponding obligation with respect to conduct money.

Both decisions held that failure to pay attendance money constitutes an abuse of process. The City also references Rule 1.3, which directs that the Rules be interpreted to ensure fair, just, and expeditious proceedings.

13The City further submits that neither Ms. Sweeney nor the SJTG filed an affidavit in response to the motion. As a result, the only evidence before the Tribunal is the affidavit of Ms. Fusz, which remains unchallenged. The City maintains that this evidence confirms that none of the summoned City witnesses have received the required attendance money. The City argues that under the Rules, both Ms. Sweeney and the SJTG are jointly and severally liable for the outstanding attendance money.

South Junction Triangle Grows Neighbourhood Association

14The SJTG submits that the Tribunal is functus officio in this matter, as the case was disposed of by the Tribunal on October 18, 2024. Relying on Chandler v. Alberta Association of Architects, CanLII 41, the SJTG argues that, absent statutory authority, the Tribunal cannot revisit a final decision unless there has been a clerical or typographical slip or an error in expressing its manifest intent. The SJTG maintains that the enforcement of witness fees is not within the Tribunal’s statutory mandate and, at most, falls under its residual authority under Rule 1.7. However, this discretionary power cannot be exercised once a matter has been decided on its merits.

15The SJTG further argues that the City's delay in bringing this motion amounts to laches, as it was aware of the unpaid fees since June 2023 but failed to address the issue during the hearing or in the 15 months thereafter. The SJTG also states that it previously offered to pay the fees directly to the witnesses via Interac e-Transfer but did not receive the necessary payment details.

16Regarding the payment of witness fees, the SJTG asserts that the purpose of such fees is to compensate for lost wages or travel expenses. Since the witnesses were City employees who attended the hearing as part of their employment and were paid by the City, no compensation is warranted. The SJTG also argues that the City has no standing to seek payment on behalf of its employees.

17The SJTG submits that the motion is frivolous and vexatious and intended to harass and intimidate both the SJTG and Ms. Sweeney. The SJTG contends that the motion lacks serious purpose, causes unnecessary expenses, and incorrectly directs its claims at Ms. Sweeney rather than at the SJTG. Their submission emphasizes that the SJTG is a volunteer organization with no assets, within an area that is predominately composed of low-income residents and small businesses affected by redevelopment. The SJTG further asserts that Ms. Sweeney is not its legal counsel but rather their representative.

18The SJTG also disputes the City's calculation of witness fees, arguing that witnesses are only entitled to compensation for required attendance and not for voluntary observation. Furthermore, they allege that the City insisted on summoning witnesses who were willing to appear voluntarily.

19Finally, the SJTG argues that the City's request for cost is improper and reiterates that the SJTG is a volunteer organization with no funding. They request that the Tribunal address the City’s conduct in bringing this motion by awarding nominal but punitive costs against the City.

ISSUES AND FINDINGS

20The doctrine of functus officio holds that once a Tribunal has rendered a final decision on the matter, it lacks the authority to revisit that decision, except under specific, limited circumstances. However, in this case, the order issued by the Tribunal in October of 2024 was an Interim Order, not a final disposition of the matter. According to subsection 9 (3) of the OLTA, the Tribunal is empowered to issue Interim Orders as necessary to facilitate the resolution of proceedings. Since the Final Order has yet to be issued, the Tribunal retains jurisdiction over the case and is not functus officio. Moreover, even if a Final Order had been issued, the SJTG's assertion that the doctrine prevents the Tribunal from addressing the question of disbursements is not necessarily correct. The outstanding issue of witness fee payments is a procedural matter that was not adjudicated in the prior decision and would arguably fall outside the scope of functus officio. Therefore, the Tribunal possesses the authority to grant the relief being sought by the City.

21The Tribunal's authority to enforce the payment of witness fees after the conclusion of a hearing is supportive both implicitly under Rule 1.7 and explicitly within the governing legislation. Rule 1.7 grants the Tribunal discretion to ensure a fair and efficient hearing, allowing it to take necessary action to facilitate the resolution of matters. While Rule 1.7 does not directly address the enforcement of witness fees, the Tribunal’s broad powers under this Rule permit the exercise of such authority where necessary to maintain procedural fairness and efficiency. Additionally, under Rule 13.7, the payment of attendance money is mandated at the time of the summons, and the Tribunal has the power to enforce these obligations as part of its broader mandate to oversee the procedural aspects of hearings.

22Thus, while Rule 1.7 does not explicitly mandate the enforcement of witness fees, it provides the Tribunal with the necessary discretion to ensure that these procedural obligations are met. This includes enforcing the payment of witness fees where applicable, in accordance with both the Rules and broader legal principles of fairness. In cases of noncompliance, Rule 1.7 grants the Tribunal the authority to address failures to comply with its Rules, which supports the enforcement of witness fee payments.

23The Tribunal finds that the City did not unreasonably delay bringing the motion, as the matter was not yet final with the Tribunal having issued only an Interim Order in October of 2024. The City made repeated requests for payment of the witness fees, with follow-ups in July and August of 2024. This does not constitute an undue delay or warranty application of laches. The doctrine of laches applies when there is an unreasonable delay in asserting a right, which has not occurred here, given the context of the case. Additionally, as the Final Order has not been issued, the matter is still within the Tribunal's jurisdiction, and the City's actions are in line with procedural expectations. The Tribunal’s discretion under Rule 1.7 supports the City's request for relief despite any alleged delay.

24Rule 13.7, section 12(3.1) of the SPPA and section 34.04 (5) of the Rules of Civil Procedure all stand for the principle that the Party that requests the summons for witnesses is responsible for the payment of witness fees. In this case, the SJTG, as the Party granted Party status and requesting the witnesses, is liable for the payment of the fees, not Ms. Sweeney personally. While Ms. Sweeney is a lawyer and represented the SJTG in this matter, her role as a representative of the resident’s association does not make her personally responsible for the payment of the fees. The liability lies with the Party that requested the witnesses, which is the SJTG, regardless of whether the organization is a volunteer entity. Therefore, it is the SJTG, as the Party requesting the witnesses’ attendance, that is liable for the payment of the witness fees.

25SJ TG submits that the City's motion to enforce payment of witness fees is frivolous and vexatious. The City's motion is not, in fact, frivolous but is based on a legitimate legal claim to enforce witness fee payments that are mandated under the Rules. The City has a clear statutory right to seek payment for the witnesses it requested to attend the hearing, and the payment of such fees is part of the formal process outlined in the Rules. The City, in its motion, is simply seeking to enforce these required payments.

26Furthermore, the City has standing to seek payment on behalf of its employees, as they were summoned in their official capacity rather than as private individuals. Despite SJTG’s suggestion that no payment is warranted as these witnesses do not require compensation for lost wages, I disagree. First, I would note that the language in the Rules and the SPPA is mandatory, not permissive. Second, witness fees exist to recognize the burden placed on those required to testify, irrespective of their employer. While City employees receive salaries funded by taxpayers, those salaries are intended for their municipal responsibilities, not to subsidize participation in hearings initiated by third parties. It is, therefore, appropriate that the Party summoning the witnesses bear the associated costs rather than shifting the financial burden onto taxpayers.

27The SJTG's assertion that the City’s motion is vexatious appears to stem from its own failure to fulfill its financial obligations, despite having been made aware of it at the outset and through subsequent reminders. However, the failure of the SJTG to pay the required fees when it was informed of the need for such payments is the crux of the dispute. It is not vexatious for the City to seek reinforcement of its statutory rights.

28Should any Party wish to seek further costs in relation to this motion, they must submit a request for costs in accordance with the Rules, specifically Rule 23, which governs costs. Requests for costs are dealt with separately, and any claims will be reviewed in accordance with the Tribunal’s established criteria.

29For the reasons outlined above, the Tribunal finds that the SJTG is required to pay a total of $500 in attendance money to the City. The Tribunal affirms its jurisdiction over the matter, noting that it is not functus officio, as the Final Order has not yet been issued. The Tribunal further directs that the SJTG shall refrain from requesting any further summons for City witnesses at the Tribunal until the outstanding attendance money has been paid and confirmation of such payment has been provided to the Tribunal from the City. Further, the SJTG is also reminded that once this outstanding attendance money has been paid, all parties before a Tribunal proceeding are to comply with Rule 13.7, which requires that attendance money be paid at the same time that a summons is served.

ORDER

30THE TRIBUNAL ORDERS THAT:

a. The motion is allowed, in part;

b. The South Junction Triangle Grows Neighbourhood Association (“SJTG”) is required to pay $500.00 attendance money, by cheque payable to the Treasurer, City of Toronto and mailed to the attention of City of Toronto (“City”) lawyers Derin Abimbola and Ray Kallio, 55 John Street (26th Floor, Metro Hall), Toronto, ON M5V 3C6, owed to the City as a result of the SJTG summoning four City staff; and

c. The SJTG shall refrain from requesting any further summons for City witnesses at the Ontario Land Tribunal until the full payment of the attendance money has been made and confirmation of such payment has been provided to the Tribunal by the City.

“J. Innis”

j. innis

MEMBER

Ontario Land Tribunal

Website: www.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.