Court File and Parties
CITATION: Deo v. Sheasby-Coleman, 2021 ONSC 4150
DIVISIONAL COURT FILE NO.: 073/19
DATE: 20210608
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Giuseppina Deo Moving Party
– and –
Charlotte Sheasby-Coleman Respondent
Michael Corbett, for the Moving Party Charlotte Sheasby-Coleman, representing herself
HEARD at Toronto (by videoconference): May 26, 2021
Reasons for Decision
Favreau J.:
Overview
[1] The moving party, Giusepina Deo, owns a property at 11 Stanley Avenue, Toronto. Ms. Deo sought minor variances to permit her to sever her 50-foot lot into two 25-foot lots. The respondent, Charlotte Sheasby-Coleman, was one of the neighbours who objected to the development. The Toronto Local Appeal Body (the “TLAB”) denied the request for minor variances in a decision dated January 2, 2019 and a review decision dated December 2, 2019.
[2] Ms. Deo initially brought a motion for leave to appeal the January 2, 2019 decision. After requesting a review from the TLAB, she obtained an order dated October 31, 2019 extending the time to perfect the motion for leave to appeal. The order made by Corbett J. provided that the motion for leave to appeal was to be perfected 90 days after the issuance of the review decision.
[3] The review decision was issued on December 2, 2019, which meant that Ms. Deo was required to perfect her motion for leave to appeal by March 1, 2020. Ms. Deo did not send her materials on the motion for leave to the Divisional Court until November 27, 2021, and she did not serve them on Ms. Sheasby-Coleman until May 20, 2021. Ms. Deo now brings a motion to extend the time to perfect the motion.
[4] For the reasons below, the motion is denied.
Background
Orders made by the TLAB and motion for leave to appeal to the Divisional Court
[5] Ms. Deo acquired the property at issue in August 2017. She seeks to sever the 50-foot property into two 25-foot lots, with a view to tearing down the bungalow on the property and replacing it with two dwellings. On March 8, 2018, the Committee of Adjustments granted the severance and a number of variances that would allow the project to go forward.
[6] Ms. Sheasby-Coleman appealed the decision to the TLAB. The hearing was conducted over several days and included a number of witnesses. In a decision dated January 23, 2019, Member T. Yao of the TLAB granted the appeal on the basis that the proposed development did not “respect and reinforce the existing character of the neighbourhood” as required by the Official Plan. The Member partially based this conclusion on his finding that Ms. Deo’s proposal did not provide “a suitable growing environment for trees or increase the tree canopy”. The severance and variances were therefore refused.
[7] Ms. Deo brought a motion for leave to appeal the TLAB’s decision and also requested that the TLAB review its decision.
[8] Before the TLAB released its review decision, Ms. Deo obtained an order from the Divisional Court on consent extending the time for “perfecting” the motion for leave to appeal. The order provided as follows:
THIS COURT ORDERS that the deadline for the Moving Party to perfect/submit materials in respect of this motion for leave to appeal, as set out in Rule 61.03(2), is hereby extended to ninety (90) days after (i) delivery of the Toronto Local Appeal Body’s decision, in response to the Request for Review … OR (ii) notice given to the Responding Party advising that this motion is being resumed, whichever is earlier.
[9] In a decision dated December 2, 2019 made by Member Lombardi, the TLAB denied the review request. In its review decision, the TLAB rejected an argument that the hearing was unfair because Ms. Deo was not allowed to present evidence from an expert arborist, that the adjudicator improperly allowed non-expert opinion evidence, that the member who made the original decision was not independent and that there were a number of deficiencies in his decision.
Procedural history of the motion to extend
[10] In accordance with Corbett J.’s order, Ms. Deo was required to serve and file her materials on the motion for leave to appeal by March 1, 2020, which was 90 days following the release of the TLAB’s review decision. Ms. Deo did not serve and file her materials by that date.
[11] Instead, on November 27, 2020, her lawyer sent an email to the Divisional Court, including a link to the materials. The email was not copied to Ms. Sheasby-Coleman.
[12] Following this email from Ms. Deo’s lawyer, the Divisional Court requested that the parties agree on a schedule for the responding materials, after which a date for the hearing could be set. Ms. Sheasby-Coleman objected to scheduling the hearing and the Divisional Court convened a case conference.
[13] At the case conference held on March 15, 2021, Ms. Sheasby-Coleman raised an issue regarding Ms. Deo’s delay in moving forward with the motion for leave to appeal given Corbett J.’s order requiring that the motion be perfected within 90 days of the TLAB’s review decision. In the circumstances, the court scheduled a motion to be brought by Ms. Deo to extend the time to perfect.
[14] The motion was originally scheduled for May 4, 2021. In a case management endorsement dated March 15, 2021, Ms. Deo was directed to serve her materials on the motion on Ms. Sheasby-Coleman by April 2, 2021. On the day before the motion, the Divisional Court sent an email to Ms. Deo’s lawyer requiring him to upload the motion record and factum referred to in his notice of motion to CaseLines. The intent was that he upload the materials on the motion for leave to appeal from the TLAB’s decisions. However, Ms. Deo’s counsel prepared a factum on the motion to extend the time and uploaded it to CaseLines that evening.
[15] At the beginning of the hearing on May 4, 2021, I asked Ms. Sheasby-Coleman if she wanted an opportunity to prepare a revised responding factum, which she did. The motion was rescheduled to May 26, 2021. Ms. Sheasby-Coleman was directed to serve her factum by May 14, 2021 and Ms. Deo was directed to upload her materials on the motion for leave to appeal to CaseLines, including an affidavit of service showing when the materials had been served on Ms. Sheasby-Coleman.
[16] The parties complied with these requirements, and the motion proceeded as scheduled on May 26, 2021.
Analysis
[17] As held in The Catalyst Capital Group Inc. v. Moyse, 2016 ONSC 554, at para 2, the test to be applied on a motion to extend the time to bring a motion for leave to appeal is as follows:
In granting an extension of time, the court considers four factors. The overarching consideration is the justice of the case. Those factors are:
whether the moving party formed an intention to appeal within the relevant period;
the length of the delay and the explanation for it;
prejudice to the responding party; and
the merits of the appeal.
[18] In this case, I find that Ms. Deo had a bona fide intention to bring a motion for leave to appeal from the TLAB’s decisions. Ms. Deo commenced the appeal from the initial TLAB decision within the applicable time limit and she obtained an order from the Divisional Court extending the time to serve and file materials on the motion. I accept that this is sufficient to satisfy the requirement of a bona fide intention to bring the motion for leave to appeal.
[19] However, I find that the overall justice of the case does not warrant extending the time for perfecting the motion because the delay is extensive and there is no adequate explanation for the delay, the motion for leave appears to have no merit and the lengthy passage of time on its own will cause prejudice to the respondent.
Length of the delay and explanation for the delay
[20] Corbett J.’s order required Ms. Deo to perfect her motion for leave to appeal within 90 days of receiving the TLAB’s reconsideration decision. The TLAB released its reconsideration decision on December 2, 2020, which means that she was required to serve and file her materials with the Divisional Court by March 1, 2021. While Ms. Deo’s counsel sent an electronic version of the materials to the Court on November 27, 2020, based on the affidavit of service uploaded to CaseLines at my direction, Ms. Sheasby-Coleman was not served with the motion materials until May 20, 2021. The delay in complying with Corbett J.’s order is therefore well over one year.
[21] In support of the motion to extend the time, Ms. Deo relies on an affidavit sworn by Stephanie Fleming, who was an associate working with Ms. Deo’s lawyers at the relevant time. In her affidavit, Ms. Fleming provides a number of explanations for the delay in complying with Corbett J.’s order. Her explanations include the following:
a. She says that she contacted the Divisional Court on February 20, 2020 and that “the court informed me by telephone that the deadline to submit and perfect the motion materials to perfect the leave to appeal was April 14, 2020”.
b. On March 17, 2020, as a result of the pandemic, the Ontario government made a regulation suspending all limitation periods and deadlines.
c. On June 1, 2020, her previous employer who had carriage of the file stopped practicing law, and she became an associate with Ms. Deo’s current lawyer, Corbett Law Professional Corporation. At that time, Corbett Law Professional Corporation served a Notice of Change of Solicitors on Ms. Sheasby-Coleman.
d. On September 14, 2020, the Divisional Court resumed calculation of deadlines. Ms. Fleming says that she contacted the Divisional Court on September 28, 2020 to inquire about the timelines for filing materials, at which time she was told that the Divisional Court was not currently sending out notices of dismissal for delay.
e. She includes as an exhibit the email dated November 27, 2021 to the Divisional Court forwarding a dropbox link to Ms. Deo’s materials on the motion for leave. The email is not copied to Ms. Sheasby-Coleman. No information is provided about when and whether Ms. Sheasby-Coleman was served with the motion materials.
[22] Individually, each of these explanations may have provided an excuse for failing to serve and file the materials within the timeframes required by Corbett J.’s order. However, in my view, cumulatively they do not provide a satisfactory explanation for the excessive delay:
a. With respect to the statement that the court informed Ms. Fleming that the March 1, 2020 deadline was extended to April 14, 2020, Ms. Fleming’s affidavit does not state who she spoke to or what questions she asked. The deadline set out in Corbett J.’s order was clear. Court staff would not have the authority to vary his order and this should have been evident to Ms. Deo’s lawyers.
b. There is no doubt that all deadlines were suspended by regulation from March 17, 2020 to September 14, 2020. However, over two months elapsed between that date and November 27, 2020, when Ms. Deo’s counsel sent a link to the materials to the Court. As referred to above, Ms. Fleming’s explanation for this delay is an exchange of communications with the Divisional Court in which she claims she was told the Divisional Court was not sending notices of dismissal. However, again, it is not clear what questions were directed at Divisional Court staff and if specific reference was made to Corbett J.’s order. Again, court staff would not have the authority to vary his order and this should have been evident to Ms. Deo’s lawyers.
c. Finally, while Ms. Fleming has included her November 27, 2020 email to the Divisional Court sending a link to the motion materials, the email was not copied to Ms. Sheasby-Coleman. It is now evident that the materials were not served on Ms. Sheasby-Coleman until May 20, 2021, only after the Court raised the issue at the May 3, 2021 hearing date. No explanation has been provided for this delay.
[23] During his argument, counsel for Ms. Deo tried to supplement the explanation for the delay by stating that he took over as counsel on the file in June 2020, that the file was complicated and that it took him a long time to get up to speed. This information was not in evidence. More importantly, through this whole period of delay, there is no evidence of communication to Ms. Sheasby-Coleman seeking consent to the extension of time or explaining the reasons for not complying with Corbett J.’s order. The only evidence of communication is the notice of change of solicitors that was sent to Ms. Sheasby-Coleman on June 2, 2021.
[24] As indicated above, each of the explanations individually may have provided an adequate explanation for the delay in serving and filing the materials on the motion for leave to appeal. However, cumulatively, they do not provide an acceptable explanation. Corbett J. made an order that set out a clear requirement that materials be served and filed by March 1, 2020. Ms. Deo’s counsel have not provided a satisfactory explanation for why this requirement was not complied with until over one year after that deadline.
Merits of the appeal
[25] As held in Catalyst, at para. 12, lack of merit alone is sufficient to deny an extension of time, particularly where a party seeks to bring a motion for leave to appeal. In such circumstances, the court is to consider whether the motion for leave to appeal is likely to succeed, which requires consideration of the test for obtaining leave.
[26] Pursuant to section 115(9) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A, an appeal from the TLAB to the Divisional Court is only on a question of law and leave of the Court is required.
[27] The test on a motion for leave to appeal from the TLAB requires the moving party to demonstrate that:
(a) the proposed appeal raises a question of law;
(b) there is good reason to doubt the correctness of the TLAB decision with respect to the question of law raised; and
(c) the question of law is of sufficient general or public importance to merit the attention of the Divisional Court.
See: The Regional Municipality of Waterloo, 2020 ONSC 5613 (Div. Ct.), at para. 29.
[28] In this case, the grounds on which Ms. Deo seeks leave to appeal from the TLAB are as follows:
a. The TLAB erred in its application of the “respect and reinforce” test;
b. The TLAB erred in not allowing Ms. Deo to call her own expert arborist at the hearing; and
c. The TLAB erred in allowing non-experts to give opinion evidence.
[29] In my view, these grounds either do not raise an issue of law or there is no reason to doubt the correctness of the TLAB’s decisions. In any event, none of these issues is of sufficient importance to warrant the Court’s interference.
[30] With respect to the TLAB’s application of the “respect and reinforce” test, Ms. Deo’s argument is essentially that the test was not applied in a coherent way because the neighbourhood is very varied and there are similar developments in the area. This does not raise a question of law. The Member’s analysis about whether the proposed project respects and reinforces the character of the neighbourhood is very detailed, based on the evidence of witnesses and fact specific. The attack on this aspect of the decision in Ms. Deo’s factum takes issue with how the evidence was weighed and analyzed. This alleged error does not raise a question of law nor is it a matter of general importance.
[31] With respect to the expert arborist, this is arguably a question of procedural fairness which is a question of law. However, in my view, Ms. Deo would be very unlikely to succeed in getting leave to appeal on this issue. The TLAB’s rules set deadlines for serving documents relied on at a hearing. On the first day of the hearing, Ms. Deo’s lawyer asked for an adjournment for the purpose of filing an arborist’s report. The Member denied the adjournment. Ms. Deo renewed her request to file an arborist’s report later during the hearing but permission was again denied. Both the original Member who conducted the hearing and the Member who conducted the review were satisfied that Ms. Deo had plenty of notice that the impact of the proposed project on the trees would be a significant issue at the hearing and that it would be unfair to allow the late filing of the report given that the City’s tree expert had already testified. Tribunals are allowed to control their own processes. The decision on whether to allow Ms. Deo to file the arborist’s report was based on the specific circumstances of this case. There is no reason to doubt the correctness of the decision and, more importantly, it does not raise issues of general importance.
[32] With respect to the issue of non-experts being allowed to give opinion evidence, Ms. Deo takes issue with two witnesses who testified at the hearing. Mr. Goodman is an architect who resides in the neighbourhood and he was allowed to give opinion evidence on architectural issues. Ms. Deo also argues that another witness, Mr. Godley, was allowed to give expert planning evidence without being qualified as an expert. The issue of whether a witness should be qualified as an expert or allowed to give opinion evidence is not a question of law; rather, it is a question of mixed fact and law. In any event, both Member Yao and Member Lombardi provide comprehensive reasons for the admission of these witnesses’ evidence. This issue does not raise a question of law nor does it a raise a question of general importance.
[33] During the motion before me, Ms. Deo’s lawyer argued that the TLAB also erred by making a statement in the original decision that dismissing the appeal would create a bad precedent in future cases. This issue was only raised as an argument before me; it is not in the notice of motion for leave to appeal nor is it in the factum on the motion for leave to appeal. In any event, this was an isolated comment in Member Yao’s decision and does not appear to have played a central role in his reasoning. More significantly, the law on the precedential value of administrative decision is well settled and this does not raise a question of general importance.
[34] Accordingly, I am satisfied that the motion for leave to appeal has no or little merit.
Prejudice to Ms. Sheasby-Coleman
[35] Ms. Deo argues that I cannot find prejudice in this case because Ms. Sheasby-Coleman did not serve an affidavit in response to the motion. In addition, Ms. Deo argues that, given that Ms. Sheasby-Coleman is representing herself, she will not incur any additional legal expenses if this matter is allowed to proceed.
[36] It would of course have been preferable for Ms. Sheasby-Coleman to file a responding affidavit on the motion. However, in this case, given the lengthy passage of time and the ongoing failure to communicate with Ms. Sheasby-Coleman about the ongoing delay, in my view, the prejudice speaks for itself. Other than the notice of change of solicitors served in June 2020, Ms. Sheasby-Coleman did not receive any communication about this matter until early 2021. By that time, it would be fair for her to assume that this matter had been abandoned or had come to an end. In the circumstances, I accept that there is prejudice in the ongoing stress and inconvenience of dealing with this litigation. This factor on its own would not be sufficient to prevent an extension of time, but it is not irrelevant.
Conclusion
[37] Having regard in particular to the lack of merit, length of delay and failure to provide a satisfactory explanation for the delay in complying with Corbett J.’s order, in my view the justice of the case does not justify an extension of time in this case. The motion is therefore dismissed.
[38] At the end of the motion, Ms. Sheasby-Coleman requested that, if she was successful, she should receive some costs. As a self-represented litigant, she can only receive costs if she can demonstrate that she had to forego paid employment or income to prepare for and participate in the motion. Ms. Sheasby-Coleman is recently retired and furthermore has not incurred any expenses, and accordingly I make no order as to costs.
___________________________ Favreau J.
Released: June 8, 2021
CITATION: Deo v. Sheasby-Coleman, 2021 ONSC 4150
DIVISIONAL COURT FILE NO.: 073/19
DATE: 20210608
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Giuseppina Deo Moving Party
– and –
Charlotte Sheasby-Coleman Respondent
REASONS FOR JUDGMENT
FAVREAU J.
Released: June 8, 2021