CITATION: Di Geso v.Pascoe, 2020 ONSC 6859
DIVISIONAL COURT FILE NO.: 129/20 DATE: 20201110
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Kristjanson JJ.
BETWEEN:
Dino Di Geso and Silvana Colavecchia Moving Parties (Applicants)
– and –
Carolyn Pascoe and Darren Sukonick Respondents (Respondents)
Cynthia Kuehl and Ian Andres for the Moving Parties Self-Represented Brian Duxbury for the Toronto Local Appeal Body
Heard at Toronto by videoconference, November 9, 2020
Kristjanson, J.
[1] The moving parties brought this motion for leave to appeal the decision of the Toronto Local Appeal Body (“TLAB”) dated February 18, 2020. The TLAB decision dismissed their application for twelve minor variances to Zoning By-laws No. 7625 and 5692013. Two of the variances were sought to permit the construction of a three storey home; the other ten variances relate to other issues.
[2] Following the decision, the moving Parties brought this application for leave to appeal to Divisional Court, and concurrently sought a review of the decision under TLAB’s Rules. Pursuant to s. 115(9) of the City of Toronto Act, 2006, S.O. 2006, c 11, Sch A, s. 115(9) an appeal lies from the TLAB to the Divisional Court with leave, on questions of law.
[3] I find that it is premature to argue this motion for leave to appeal and direct that it be adjourned pending the final determination under the TLAB’s review process.
[4] On July 28, 2020, the TLAB Chair directed that a review of ten of the variances should proceed, although the TLAB denied a review of the two variances required for the proposed third storey. The parties agree that following the review, pursuant to TLAB Rule 31.24, the Chair may either dismiss the review, with reasons, or direct an oral hearing before a different TLAB Member. That Member may confirm, vary, suspend or cancel the original decision or order. Therefore, since the final decision is under internal review, the Applicants are not able to seek leave to appeal the final decision/order of TLAB. The motion for leave to appeal is from the decision dismissing the application for all twelve variances, although ten of those variances are not yet final. Some of the errors of law relied on in the factum of the applicants relate to the Member’s reasons for decision on the ten variances which are still under review at TLAB.
[5] The administrative decision-making process has not ended. To proceed with the leave to appeal at this stage would fragment the TLAB proceeding, and lead to a misallocation of court time and the resources of the parties. Stratas, J.A. in C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, at paras. 31-32 has expressed the court’s concerns in the context of judicial review:
Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.
This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge. [Citations omitted.]
These concerns apply equally to this premature application for leave to appeal.
[6] As a result, this court orders that:
(1) This motion for leave to appeal the decision of the Toronto Local Appeal Body (“TLAB”) dated February 18, 2020 dismissing the application for twelve minor variances to Zoning By-laws No. 7625 and 5692013 is adjourned pending the outcome of TLAB’s review process of the ten variances (#1-3, 5-10 and 12).
(2) The motion may be brought back following the final decision affecting the ten variances.
(3) The parties are to schedule a Case Management attendance after the final decision to set a schedule for filing of materials, including amended factums if required, and to set a date for hearing the application for leave to appeal.
(4) Costs of today’s attendance are reserved to the judge hearing the application for leave to appeal.
(5) A copy of this decision is to be provided to TLAB.
(6) The leave to appeal may be brought before me if I am available.
Kristjanson J.
Date of Release: November 10, 2020
CITATION: 2020 ONSC 6859
DIVISIONAL COURT FILE NO.: 129/20 DATE: 20201110
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Kristjanson JJ.
BETWEEN:
Gino Di Geso and Silvana Colavecchia Moving Parties
– and –
Carolyn Pascoe and Darren Sukonick Respondents
REASONS FOR DECISION
Kristjanson J.
Date of Release: November 10, 2020