CITATION: Sellors v. Toronto Local Appeal Body, 2022 ONSC 4229
DIVISIONAL COURT FILE NO.: 941/21 DATE: 20220718
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
BRADLEY SELLORS
Dora Sung, for the Moving Party
Moving Party
– and –
TORONTO LOCAL APPEAL BODY and 367 HOWLAND AVENUE
F. Scott Turton, for the Respondent, 367 Howland Avenue
Joshua Perell, for the Respondent Toronto Local Appeal Body
Respondents
HEARD at Toronto (by videoconference): July 18, 2022
matheson J. (Orally)
[1] The moving party Bradley Sellors seeks leave to appeal three decisions of the Toronto Local Appeal Body (“TLAB”). Those TLAB decisions arise because the moving party had appealed a decision of the Committee of Adjustments and the appeal was unsuccessful.
[2] The three TLAB decisions with respect to which the moving party seeks leave to appeal are the following:
(1) a June 17, 2021, decision with corrections made dated November 15, 2021;
(2) a September 8, 2021, costs decision; and,
(3) a November 12, 2021, review order arising from a request to review the first decision referred to above. No review was requested with respect to the second decision referred to above.
[3] In short, the decisions giving rise to this motion granted permission for a lot to be severed and allowed several zoning variances as well as ordering costs against the moving party.
[4] The moving party requires leave to bring a further appeal to this court as set out in s. 115(9) the City of Toronto Act, 2006, S.O. 2006, c. 11, Sch. A. Leave may only be granted on questions of law.
[5] The test for leave to appeal is set out in a decision of this court, specifically, Waterloo (Regional Municipality) v. Grerei Investment Limited., 2020 ONSC 5613, at para. 29. To get leave to appeal, the moving party must demonstrate that:
(a) the proposed appeal raises a question of law;
(b) there is good reason to doubt the correctness of the TLAB decisions appealed from 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.
[6] The moving party has put forward many issues for each of the three decisions as the proposed questions of law that the moving party seeks to appeal to this court.
[7] The TLAB has a very limited role on this motion, with respect to costs only. Therefore, my references in these oral reasons for decision to the respondent are references to the corporate respondent only.
[8] Having considered the written and oral submissions, I conclude that, for the most part, the issues that have been put forward as questions of law are actually challenges to factual matters or to the weighing of the evidence and questions of mixed fact and law with no extricable question of law. As a result, most of the issues put forward are not questions of law and cannot provide a foundation for leave to appeal.
[9] One possible exception is the issue raised by the moving party in relation to s. 51(24) of the Planning Act, R.S.O. 1990, C. P.13. That subsection contains both general factors that must be considered, as set out in the opening words of the subsection, and a list of numerous statutory criteria that also must be considered as they may be relevant.
[10] In this case, the two of the specific criteria were identified by the adjudicator, specifically ss. 51(24)(c) and (f). I will not recount the entirety of those subsections in these oral reasons for decision. It is sufficient to note that (c) requires a consideration of the official plan and (f) requires a consideration of the dimensions and shapes of the proposed lots.
[11] In the reasons for decision, the adjudicator noted that the relevant official plan also applied to the dimensions and shapes of the proposal of proposed lots. In his reasons for decision, he said that the two “merged”. The moving party submits that this sentence of the reasons for decision amounts to a question of law and meets the criteria for leave to appeal because there is a conflicting decision on the point.
[12] In particular, the moving party relies on the TLAB decision in 10 Academy Road, issued January 2, 2020, which contains a holding that the various components of s. 51(24) are independent and mutually exclusive. As a result of the sentence in the reasons for decision that I have just mentioned, the moving party submits that there is good reason to doubt the correctness of the decision, in particular because of the use of the word “merger”.
[13] However, the moving party has overlooked the context of that sentence in the reasons for decision, both in that portion of the reasons for the decision and in the reasons for decision read as a whole.
[14] Before reaching that portion of the reasons, the adjudicator set out the general legal principles. Those general principles noted that the specific criteria in s. 51 had to be met. In this case, the specific criteria are (c) and (f). In the paragraph relied upon by the moving party, the adjudicator also referred to the more general considerations that are mandated under the section, as set out in the opening words of that section, in addition to the two specific criteria.
[15] Reading that section of the reasons for decision as a whole, I conclude that the paragraph is not setting out a new or conflicting legal test for the application of s. 51(24) but simply recognizing that the relevant facts for the various things that must be considered were overlapping.
[16] I therefore conclude that even if I accept that this issue about s. 51(24) is a question of law, I do not find the second criteria for leave is met, specifically that there is good reason to doubt the correctness of the TLAB decision. I therefore need not go on to the other criteria for leave to appeal or the other issues raised by the respondent to this motion.
[17] I am not persuaded that the test for leave to appeal is met in this case mainly because most of the issues are not questions of law to begin with and the one that may be does meet the leave requirements.
[18] I therefore dismiss the motion.
[19] The respondent, who is the successful party on this motion, seeks costs of $14,000 all-inclusive. The moving party submits that it would be more appropriate that costs be fixed at $6,000. Having considered all of the submissions put forward in the exercise of my discretion, I fix costs to be paid by the moving party at the all-inclusive sum of $8,000.
[20] The TLAB also seeks costs against the moving party on this motion. That request is made because of the history of this proceeding, which includes a couple of procedural missteps at the early stages including the naming of the TLAB as a party respondent. However, in the course of case management, Corbett J. expressly directed that the TLAB need not participate in this motion. Despite that direction, the TLAB chose to participate, including filing a factum on the subject of costs and having counsel attend the hearing this morning and seek costs. In support of that choice, the TLAB submits that it was important to it because of the above history. The TLAB seeks costs against Mr. Sellors in the sum of $24,000.
[21] I regard this as an extraordinary request for a number of reasons, chief among them being these. Certainly, sometimes a tribunal could be wrongly named as a party respondent. It seems that often tribunals are also wrongly overlooked when they ought to be named as a party respondent. These sorts of issues ordinarily get dealt with by this court in case management. That is what occurred here. Justice Corbett provided an efficient response to that issue. The choice by TLAB to continue to participate and incur costs, on the subject of costs, does not merit such a costs award. I have taken into account the submissions of counsel about the importance of these things to the TLAB. Bearing in mind all circumstances in the exercise of my discretion, there shall be no order as to costs in favour of the TLAB.
___________________________ Matheson J.
Date of Oral Reasons for Judgment: July 18, 2022
Date of Written Release: July 20, 2022
CITATION: Sellors v. Toronto Local Appeal Body, 2022 ONSC 4229
DIVISIONAL COURT FILE NO.: 941/21 JR DATE: 20220718
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
BRADLEY SELLORS
Plaintiff/Appellant/Moving Party
– and –
TORONTO LOCAL APPEAL BODY and 367 HOWLAND AVENUE
Defendant/Applicant/Respondents
ORAL REASONS FOR JUDGMENT
matheson J.
Date of Oral Reasons for Judgment: July 18, 2022
Date of Written Release: July 20, 2022