CITATION: Roozbuilt Ltd. v. Jamieson, 2022 ONSC 2029
DIVISIONAL COURT FILE NO.: 518/18
DATE: 20220404
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Backhouse and McCarthy JJ.
BETWEEN:
ROOZBUILT LTD. and ATA ARCHITECTS INC.
Appellants
– and –
RONALD GORDON JAMIESON and the CITY OF TORONTO and TORONTO LOCAL APPEAL BODY
Respondents
R. Andrew Biggart, for the Appellants
Sylvain Rouleau and Charles Lund, for the Respondent Ronald Gordon Jamieson
Christopher Henderson and Laura K. Bisset, for the Respondent City of Toronto
Brian Duxbury, for the Respondent Toronto Local Appeal Body
HEARD at Toronto (by videoconference): February 28, 2022
Swinton J.
Overview
[1] Roozbuilt Ltd. and ATA Architects Inc. (the “appellant”) appeal, with leave, from a decision of the Toronto Local Appeal Body (“TLAB”) dated August 3, 2018, in which TLAB’s Chair granted a review of a decision of a member of the TLAB and cancelled that decision.
[2] An appeal lies to this Court from a decision of the TLAB only on a question of law and with leave of the Divisional Court (City of Toronto Act, 2006, S.O. 2006, c. 11, Sch. A, s. 115(9)). The only issues on this appeal are the fairness of the process adopted by the Chair in the review and the standard of review he applied. D.L. Corbett J. made it clear in his endorsement of January 31, 2019 that he granted leave only on those two issues, and he did not grant leave to challenge the substance of the decision.
[3] For the reasons that follow, I would dismiss the appeal, as the TLAB met its duty of procedural fairness in the circumstances, and it applied the correct standard of review to the member’s decision.
Background
[4] Roozbuilt Ltd. owns a property in the Long Branch area of Etobicoke. It applied to the Committee of Adjustment (“COA”) for consent and minor variance approvals under the Planning Act, R.S.O. 1990, c. P.13 that would permit it to sever the property into two undersized residential lots, to demolish the existing dwelling, and to build two detached dwellings on the severed lots. The COA approved the application, finding that the criteria under s. 51(24) of the Planning Act were satisfied, on the condition that the appellant satisfy all conditions concerning trees on the lot, as well as other administrative requirements.
[5] The City of Toronto and Ronald Jamieson appealed to the TLAB. Mr. Jamieson owns property near the appellant’s property. After a two-day hearing de novo, Member Burton dismissed the appeal and upheld the severance approval and granted minor variances in a decision dated May 15, 2018.
[6] Pursuant to Rule 31.1 of the TLAB’s Rules of Practice and Procedure, a party may make a request for review of a final decision or order of the TLAB. The request shall be served on all the parties to the TLAB hearing and filed with the TLAB within 30 days from the date of the decision for which a review is sought, unless the TLAB directs otherwise (Rule 31.3). Pursuant to Rule 31.4, the party making the request must attach an affidavit setting out the reasons for the request, the grounds for the request, any new evidence supporting the request, and any applicable Rules or law supporting the request.
[7] Mr. Jamieson made a request for review, supported by an affidavit, on June 15, 2018, and he served the other parties as required by the Rules. In his request of some 13 pages, he argued that the member’s decision was based on faulty assumptions, was contrary to the evidence, and made demonstrable errors in the receipt and application of evidence. As well, he claimed that he had been denied natural justice.
[8] David Godley, a participant at the earlier hearing, also made written submissions, although he did not have standing to request a review, because he was not a party at the earlier hearing. The Chair said that he treated these submissions, which overlapped with those of Mr. Jamieson, as an added filing to the Request.
[9] The appellant responded to Mr. Jamieson’s request by filing a two-page letter from its counsel on June 26, 2018. The appellant asked that the request for review be denied, because it was an attempt to re-argue the entire case and an inappropriate attempt to introduce new evidence.
[10] The City did not participate in the review. After the Chair’s decision was released, the City wrote a letter to the TLAB explaining why it had not participated in the review proceeding. It explained that it had been awaiting a direction from the TLAB about the process to be followed.
The Review Decision
[11] Rule 31.6 sets out the TLAB’s power to review a final order or decision, including its power to control the review process:
The Local Appeal Body may review all or part of any final order or decision at the
request of a Party, or on its own initiative, and may:
a) seek written submissions from the Parties on the issue raised in the request;
b) grant or direct a Motion to argue the issue raised in the request;
c) grant or direct a rehearing on such terms and conditions and before such
Member as the Local Appeal Body directs; or
d) confirm, vary, suspend or cancel the order or decision.
Pursuant to Rule 31.8, where the TLAB seeks written submissions from the parties or grants or directs a motion to argue a request for review, it shall give the parties procedural directions relating to the content, timing and form of any submissions, motion materials or hearing to be conducted.
[12] At the outset of his decision, the Chair held that there were no procedural or other improprieties in the proceeding below. He concluded that Mr. Jamieson’s request was in proper form, and he granted relief from a strict operation of the rules so that the request could be considered. He also found that there was no basis to seek further written submissions on the issues raised. In his view, the Request to Review and the appellant’s response to the Request were sufficient, along with the record below, for him to conduct a review.
[13] Rule 31.7 sets out the grounds for review as follows:
The Local Appeal Body may consider reviewing an order or decision if the reasons and evidence provided by the requesting Party are compelling and demonstrate grounds which show that the Local Appeal Body may have:
a) acted outside of its jurisdiction;
b) violated the rules of natural justice and procedural fairness;
c) made an error of law or fact which would likely have resulted in a different order or decision;
d) been deprived of new evidence which was not available at the time of the
Hearing but which would likely have resulted in a different order or decision; or
e) heard false or misleading evidence from a Person, which was only discovered
after the Hearing, but which likely resulted in the order or decision which is the
subject of the request for review.
The Chair characterized the issues raised by Mr. Jamieson as either issues of jurisdiction or errors of fact or law – that is, the grounds in paragraphs (a) and (c) in Rule 31.7.
[14] With respect to the standard of review, the Chair held that the original decision must be read as a whole, with openness and with due regard to the fact that the TLAB member is presumed to be alert to the relevant considerations, with the TLAB Rules being observed. He also stated that there must be demonstrable grounds supportive of any intervention.
[15] In very lengthy reasons, the Chair found that the member had not adequately considered the evidence and had made errors of law and jurisdiction. I need not attempt to summarize his reasoning process, which is often unclear, as leave was not granted to appeal the substance of the decision.
[16] The Chair ultimately concluded that the member’s decision was irretrievably flawed, and the proposal did not reflect good community planning. He allowed the request for review and cancelled the member’s decision, exercising the powers found in Rule 31.6(d). The result was to refuse the appellant’s application for severance and minor variances.
The Issues on this Appeal
[17] As I said earlier, leave to appeal was granted on two questions of law:
• Did the TLAB deny procedural fairness to the appellant by failing to provide adequate notice of the review and an opportunity to respond to the Chair’s concerns?
• Did the Chair apply an incorrect standard of review?
The Standard of Review on this Appeal
[18] With respect to questions of law, on an appeal of a decision of an administrative tribunal, the standard of review is correctness (Vavilov v. Minister of Citizenship and Immigration (Canada), 2019 SCC 65 at para. 37).
[19] There is no standard of review with respect to questions of procedural fairness. The Court must decide whether the decision maker accorded the appropriate level of procedural fairness (London (City of) v. Ayerswood Development Corporation, 2002 3225 (OCA) at para. 10).
Analysis
There was no denial of procedural fairness
[20] The appellant argues that it was denied procedural fairness because it did not have adequate notice that a review would be undertaken, and it did not have an opportunity to make submissions to the Chair on the review. The City and Mr. Jamieson submit that there was no denial of procedural fairness, as the appellant did have notice, and it made submissions in its counsel’s letter to the TLAB. They submit that given the TLAB Rules, the Chair was not required to hold a hearing or accept further submissions before issuing the review decision.
[21] The duty of fairness is meant to provide participatory rights in an administrative process. Two important elements of procedural fairness are notice and an opportunity for an affected party to make submissions. However, the content of the duty varies with the context, and so a reviewing court considers various factors in determining the precise content of the duty of procedural fairness in a particular case (Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at paras. 22-27).
[22] In the present case, it is important to consider both the nature of the review process and the choices that the TLAB has made with respect to the review process, as set out in its Rules. The appellant does not challenge the content of those Rules, emphasizing that it takes issue only with their application in the present case.
[23] Section 25.0.1 of the Statutory Powers Procedure Act¸ R.S.O. 1990, c. S.22 permits a tribunal to determine its own procedures and practices, including the adoption of rules of practice and procedure. Pursuant to s. 21.2, a tribunal has the power to review its decisions, provided that its rules so provide, and to confirm, vary, suspend or cancel a decision following a review.
[24] The TLAB’s Rule 31 provides detailed guidance for its review process. Rule 31.1 requires the party seeking a review to file a request, served on the other parties, and to provide an affidavit describing the grounds and the basis for the request. This puts the other parties on notice of the request for a review.
[25] Mr. Jamieson gave the required notice under the Rules. The appellant received notice of the Request for Review, and through counsel, responded to it.
[26] However, the appellant argues that the notice was not adequate, because the appellant did not know that the Chair was going to go on and conduct an actual review of the decision without alerting the parties to the fact he was doing so and without giving them an opportunity to make submissions on the merits of the review.
[27] The problem with this argument is that it ignores the Rules adopted for a review by the TLAB and, in effect, seeks to impose a two-stage process. However, the Rules do not require the TLAB to adopt a two-step process, whereby it would make a ruling on whether to review a decision and then engage in a second process whereby it would give notice and invite submissions before conducting the actual review. Rule 31.6 gives a clear and broad discretion to the member of the TLAB who receives a request for review to determine how best to conduct that review. It is up to that member to decide whether there is a need for a motion before determining the request or a rehearing with respect to some or all issues.
[28] In the present case, the Chair turned his mind to the appropriate process to follow with respect to this particular Request for Review. He decided that there was no need for a motion or a new hearing in the following passages of his reasons (at p. 10):
… I am satisfied that the Request, its supporting documentation and the response of the Applicant provide a suitable backdrop for the performance of the Review. I find no basis to seek further written submissions from the Parties on the issues raised in the Request; the Decision is thorough insofar as it refers to the evidence and correctly recites the issues before the Member (Decision, page 3); and, no real challenge is asserted to that recitation. The Request focuses on the propriety of the Decision’s Analysis, Findings and Reasons (pages 18-26), and challenges its authenticity to the evidence, its alleged inconsistencies and errors of appreciation and use.
For similar reasons I see no issue in dispute upon which further written submissions, or a Motion filter should be requested or argued or a rehearing ordered.
Certainly no such submission or request has been made by any of the Parties addressing the Request.
[29] This brings me to the issue of the right to be heard. While the appellant made an initial submission through counsel after receipt of the Request for Review, it argues that it should have been granted a further opportunity to make submissions after the Chair decided to proceed with the review.
[30] In my view, the appellant was accorded an adequate opportunity to be heard. It made written submissions through counsel, and in numerous places in his reasons, the Chair makes reference to those submissions. For example, he adopts them with respect to Mr. Jamieson’s complaints about the refusal of the member to accept certain evidence and with respect to the fairness of the procedure before the member.
[31] In conducting the review, the Chair listened to the full transcripts of the earlier hearing before the member. Indeed, he had to do so, given that Mr. Jamieson raised issues about the fairness of the earlier proceeding. The Chair also considered the parties’ submissions before the member, which were on the tapes, and the evidence presented at the earlier hearing and summarized in the member’s decision. He also made a site visit, a practice that all members of the TLAB are required to do as part of their determination of applications.
[32] The process chosen was reasonable in the circumstances. The review process is not purely adjudicative in nature. It is important to remember that a TLAB decision, both initially and in the review, requires determinations about the appropriate policy to be applied in a particular case and in light of the evidence before the tribunal. As the Chair observed (at p. 6 of the Decision), “Policy considerations and their interpretation and application play a significant role in the TLAB decision making process.”
[33] This statement is consistent with what the Court of Appeal said in Russell v. Toronto (City) (2000), 52 O.R. (3d) 19 about the policy making function of boards concerned with planning decisions – in that case, the Ontario Municipal Board (at paras. 20, 24).
[34] Moreover, it is important to remember the important role of the review process of an administrative tribunal such as this, where the right to appeal is limited to questions of law, with leave. As the Court of Appeal stated in Russell, above, at paras. 14-16, the power of reconsideration or review in an administrative tribunal is “an appropriate means both for the correction of errors in the absence of an appeal and to permit adjustments to be made as changes in the regulated activity occur” (quoting Reid, Administrative Law and Practice, 1971).
[35] The review process adopted in the present case was reasonable and respected the duty of procedural fairness. The appellant had notice of the request for review and made submissions on it. The Chair had a broad discretion how to proceed, and he chose to rely on the submissions on the request for review, the transcripts, and the evidence and submissions before the member that he reviewed in full before making a decision. I am satisfied that the process met the requirements of procedural fairness, and I would not give effect to this ground of appeal.
The Chair did not err in the standard of review applied
[36] The appellant argues that the Chair inappropriately conducted a rehearing, rather than a review. In doing so, he should have applied a standard of reasonableness, and instead he showed no deference to the original member and substituted his own findings of fact and policy.
[37] I disagree. The Chair understood the importance of deference to the original member’s findings of fact, stating at p. 6 of his decision:
Where the TLAB member has provided replicable and reasonable grounds for evidentiary findings, absent any of the identified constraints above and in the Rules, the decision is to be supported. An important tenet of administrative law is respect for the decision making process, including its reliability and consistency.
[38] Importantly, he went on to accept the submission of the appellant’s counsel that a review is not a rehearing or re-argument. At p. 7 of his decision, he stated,
A review is limited to the grounds set out in Rule 31 of the TLAB Rules. Where none of these grounds are properly addressed, and met by the Requestor, the review should be dismissed.
[39] The Chair then considered the grounds for review in Rule 31.7 and decided that paragraphs a) and c) were in play in the Request (see p. 12 of his decision) – that the member acted outside her jurisdiction, and that there was an error of law or fact that would likely have resulted in a different outcome. He clearly understood that Rule 31.7 required that the reasons and the evidence in the Request must be compelling in establishing the grounds for review.
[40] After reviewing the reasons of the member and the evidence set out in her reasons, as well as what he heard on the tapes, he concluded that there were multiple and cumulative errors by the member that required the decision be set aside. At p. 49 of his decision, in summarizing his conclusions, he stated,
I have made a number of findings in conducting the request for review initiated by Mr. Jamieson. Some assertions have been rejected, others accepted, with reasons.
I find that the latter, based on reasons and evidence provided by the requesting Party and referenced herein, are compelling and demonstrate grounds which show that the TLAB has acted outside its jurisdiction and made errors of law or fact which would likely have resulted in a different order or decision.
[41] He continued (at p. 51):
I have found that the severance and requested variances individually and collectively do not meet the policy and statutory tests under the Planning Act. The policy imperative to respect and reinforce is not met by two dwellings on this historic lot of record. Two units are not respectable or desirable additions suitable for the subject property. I find that adverse impacts are attendant the proposal in tree removal, enhanced privacy concerns (on and offsite), streetscape interruption, the potential contribution to precedent and the deterioration caused by driveways, of streetscape character.
I find conditions as proposed for permeable pavers and the offer of translucent screening de mimimus in comparison to the more prevalent impacts from this proposed offering for intensification.
[42] In my view, the Chair applied the correct standard of review to the decision of the member. Having reviewed the request, the appellant’s submissions in response and having listened to the tapes of evidence and submissions, he found there were compelling evidence and reasons to conclude that the grounds in Rule 31.7(a) and (c) were met. It is true that the Chair made his own findings of fact, but he did so only after concluding that the member had misapprehended material evidence that would likely have affected the outcome of the decision. That was permitted in light of the powers given to him by Rule 31.6 to vary, alter or cancel the decision under review.
Conclusion
[43] Accordingly, the appeal is dismissed.
[44] The TLAB does not seek costs. The appellant and Mr. Jamieson have reached an agreement on costs, and the City is not opposed to their agreement. In accordance with that agreement, I order that the appellant pay $7,500 to the City and $7,500 to Mr. Jamieson for the motion for leave to appeal and $3,500 to each of these parties for the appeal proper, for a total of $22,000 to be divided between the two parties.
Swinton J.
I agree _______________________________
Backhouse J.
I agree _______________________________
McCarthy J.
Released: April 4, 2022
CITATION: Roozbuilt Ltd. v. Jamieson, 2022 ONSC 2029
DIVISIONAL COURT FILE NO.: 518/18
DATE: 20220404
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Backhouse and McCarthy JJ.
BETWEEN:
ROOZBUILT LTD. and ATA ARCHITECTS INC.
Appellants
– and –
RONALD GORDON JAMIESON and the CITY OF TORONTO and TORONTO LOCAL APPEAL BODY
Respondents
REASONS FOR JUDGMENT
Swinton J.
Released: April 4, 2022