Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
Date:
2023-08-30
22 191936 S45 03 TLAB
Toronto (City), Long Branch Neighbourhood Association v. Singh, 2023 ONTLAB 128
REVIEW REQUEST ORDER
Issuance Date:
August 30, 2023
PROCEEDING COMMENCED UNDER Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")
Appellant(s):
LONG BRANCH NEIGHBOURHOOD ASSOCIATION, CITY OF TORONTO
Applicant(s):
KHALMUR BLDG PRODUCTIONS INC.
Property Address:
18 TWENTY FOURTH ST.
COA File No.:
22 116893 WET 03 MV (A0145/22EYK)
TLAB Case File No.:
22 191936 S45 03 TLAB
Hearing Date(s):
January 10, 2023, March 14, 2023
Decision Delivered By:
TLAB Chair D. Lombardi
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Applicant
Khalmur Bldg Productions Inc.
Appellant
Long Branch Neighbourhood
M. Lafortune - City of Toronto
Appellant (CITY)
City of Toronto
D. Abimbola - City of Toronto
Party (TLAB)
J. Gibson
Party (TLAB)
Khalmur Bldg Productions Inc.
Party (TLAB)
G. Singh
Party (TLAB)
Kingsmill Construction
Participant
A. Choles
Participant
C. L. Mercado
REVIEW REQUEST NATURE AND RULE COMPLIANCE TO INITIATE
1On July 28, 2022, the Committee of Adjustment (COA) authorized an application for three variances (Application) to permit the Applicant, Khalmur Building Productions Inc., to demolish the existing dwelling and construct a new detached two-storey dwelling and detached garage in the rear at 18 Twenty Fourth Street (subject property).
2Both the Long Branch Neighbourhood Association (LBNA) and the City of Toronto (City) appealed the COA’s decision to the Toronto Local Appeal Body (TLAB) and the TLAB set a Hearing date for January 10, 2023.
3Shortly after the City filed its Notice of Appeal, Mr. Gaurav Singh (Owner), the owner of the subject property, met with City Staff to further discuss the proposal. As a result, the City subsequently withdrew its opposition to the Application.
4However, the City maintained its status as an elected Party in the matter and attended the Hearing scheduled by the TLAB on January 10, 2023, and a second Hearing day on March 14, 2023.
5At the commencement of the January 10th Hearing, the Parties agreed to convert the Hearing into a mediation session and engage in TLAB-led mediation as permitted under Rule 20.2 of the TLAB’s Rules of Practice and Procedure (Rules).
6Following the conclusion of the mediation session, the Parties requested that the presiding Member (Member Wong) be seized of the matter and preside at a subsequent TLAB Hearing on March 14, 2023.
7The presiding Member advised that that Hearing day would proceed either as an expedited Settlement Hearing, on a revised proposal with an agreed-to terms of settlement, or as a contested Hearing on the Applicant’s original application if no settlement was reached.
8On March 8, 2023, one week before the scheduled Hearing, the City informed the TLAB, the Applicant, and the LBNA that they would be in attendance but would not be taking a position on the original Application if the Hearing proceeded as a contested appeal matter.
9The Application was heard during a one-day Hearing on March 14, 2023, following which Member Wong, the presiding TLAB Member, issued a Final Decision and Order (Final Decision) on May 30, 2023, dismissing the Appeal and granting the variances requested, with conditions.
10On June 29, 2023, the LBNA (Requestor) filed with the TLAB a Request to Review (Request) the Final Decision as permitted under Rule 31 of the TLAB’s Rules.
11An administrative screening was completed by TLAB staff, and the Request was deemed to be compliant.
12Rule 31.10 of the TLAB’s Rules permits a Party to file a Response to Review Request (Response) no later than 20 Days from the date of service of the Request. However, neither the Applicant nor any of the other Parties in the matter filed a Response.
THE LEGISLATIVE AND POLICY FRAMEWORK
Rule 3.0 (After December 2, 2020)
- REVIEW OF FINAL DECISION OR FINAL ORDER
A Party may Request a Review
31.1 A Party may request of the Chair a Review of a Final Decision or final order of the TLAB.
Chair May Designate Any Member
31.2 The Chair may in writing designate any Member to conduct the Review and make a decision in accordance with the Rules.
Review Request does not Operate as a Stay
31.3 A Review shall not operate as a stay, unless the Chair orders otherwise. A Party requesting that a Final Decision or final order be stayed shall do so at the same time the request for Review is made.
No Motions Except with Leave
31.4 No Motion may be brought with respect to a Review except with leave of the Chair. Deadline for, and Service of, Review Request
31.5 A Review request shall be provided to all Parties and the TLAB by Service within 30 Days of the Final Decision or final order, unless the Chair directs otherwise.
Contents of a Review Request
31.6 A Party’s request for Review shall be entitled “Review Request” and shall contain the following:
a) a table of contents, listing each document contained in the Review Request and describing each document by its nature and date;
b) an overview of the Review Request not to exceed 2 pages that identifies the grounds listed in Rule 31.17 that apply;
c) if the Review Request includes grounds based upon Rule 31.17 (c), a list of all alleged errors of fact or law;
d) a concise written argument contained in numbered paragraphs. The Review Request shall provide, avoiding repetition, the concise written arguments regarding each listed matter from Rule 31.17 in the same order and include the following:
i. the applicable section of the Planning Act or other legislative basis, if any, for the argument advanced;
ii. the wording of the applicable policy, By-law or authority, if any, in support of the argument advanced;
iii. the applicable transcript or other evidence and exhibit attachments, if any, in support of the argument advanced;
iv. a clear demonstration of how in the case of grounds asserted under Rule 31.17 c), d) and e), each would likely have resulted in a different Final Decision or final order;
v. copies of the referenced case law and authorities; and
vi. a statement as to the requested remedy.
Review Request not to Exceed 20 Pages
31.7 Excluding the table of contents, case law and transcripts, by-laws, exhibits and other supporting Documents, the Review Request shall not exceed 20 pages, double spaced, and written in 12-point font.
Transcripts
31.8 If any Party wishes to refer to any oral evidence presented at the Hearing and if that oral evidence is contested and a recording thereof is available, the relevant portion of the proceeding shall be transcribed and certified by a qualified court reporter and provided to all Parties and the TLAB by Service forthwith and at that Party’s sole expense.
Administrative Screening
31.9 The TLAB shall, upon the filing of a request for Review, review it for compliance and advise the Parties if:
a) it does not relate to a Final Decision or final order; or
b) it was not received within 30 Days after the Final Decision or final order was made, unless the Chair directs otherwise; or
c) it failed to provide the requisite fee.
Response to Review Request
31.10 Despite Rule 31.9, if a Party needs to respond to the Review Request the Responding Party shall by Service on all Parties and the TLAB provide a Response to Review Request no later than 20 Days from the Date of Service pursuant to Rule 31.5, unless the Chair directs otherwise.
Contents of a Response to Review Request
31.11 A Responding Party’s response to Review Request shall be entitled “Response to Review Request” and shall contain the following:
a) a table of contents, listing each document contained in the Response to Review Request and describing each document by its nature and date;
b) an overview of the Response to Review Request not to exceed 2 pages that contains specific reference to the Review Request’s overview;
c) a concise written argument contained in numbered paragraphs, giving a response to each argument in the Review Request, and include the following :
i. the applicable transcript or other evidence and exhibit attachments, if any, in support;
ii. any other applicable legislation, policy documents, By-laws or other material that is not provided for in the Review Request; and
iii. any other applicable authorities and copies thereof; and
iv. a statement as to the remedy requested.
Response to Review Request not to Exceed 20 Pages
31.12 Excluding the table of contents, case law and authorities, transcripts, by-laws, exhibits and other supporting Documents, a Response to Review Request shall not exceed 20 pages, double spaced, and written in 12-point font.
Responding Party Not to Raise New Issues
31.13 A Responding Party shall not raise any issues beyond those issues raised in the Review Request.
Reply to Response to Review Request
31.14 If the Requesting Party needs to reply to a Response to Review Request, that Party shall provide by Service on the Parties and the TLAB a Reply to Response to Review Request not to exceed 5 pages, double spaced, and written in 12-point font and no later than 5 Days from the Date of Service pursuant to Rule 31.10, unless the Chair directs otherwise.
Contents of a Reply to Response to Review Request
31.15 A Reply to Response to Review Request shall contain the following:
a) a reply to facts, matters and Documents raised in the Response to Review Request;
b) list and attach the Documents used in the Reply to the Response to Review Request relating to those matters addressed in the Reply, including any case law or authorities raised in support.
Chair Authority
31.16 Following the timeline for the Service on all Parties and the TLAB of any Review Request, Response to Review Request and Reply to Response to Review
Request, the Chair may do the following:
a) seek further written submissions from the Parties;
b) confirm the Final Decision or final order and dismiss the Review Request, with reasons;
c) cancel the Final Decision or final order, with reasons, and, where appropriate, direct a de novo Oral Hearing before a different TLAB Member.
Grounds for Review
31.17 In considering whether to grant any remedy the Chair shall consider whether the reasons and evidence provided by the Requesting Party are compelling and demonstrate the TLAB:
a) acted outside of its jurisdiction;
b) violated the rules of natural justice or procedural fairness;
c) made an error of law or fact which would likely have resulted in a different Final Decision or final order;
d) was deprived of new evidence which was not available at the time of the Hearing, but which would likely have resulted in a different Final Decision or final order; or
e) heard false or misleading evidence from a Person, which was only discovered after the Hearing, but which likely resulted in the Final Decision or final order which is the subject of the Review.
No Further Review Permitted
31.18 A Review decision may not be further reviewed by the TLAB.
CONSIDERATION AND COMMENTARY
13Rule 31 of the TLAB’s Rules sets out specific requirements regarding the form and content of the submitted materials in support of a Request for Review, and has been structured to facilitate findings with respect to Rule 31.17 ‘Grounds for Review’.
14These grounds are the only basis upon which an Appeal Decision may be set aside, and a new Hearing ordered.
15Before commencing a Review of the grounds asserted in the Request, a reminder of the purpose and parameters of Rule 31 is helpful. These comments are general propositions to be kept in mind by the reviewer in consideration of any Review.
A Review Request is not afforded as an opportunity to re-litigate or reargue a point that was made but not favourably received in the Decision, in the decision affecting a Party.
Fundamental to assessing the assertions made in the Request is the need to give the decision a fair and liberal interpretation and construction consistent with its role but tested against the defined, eligible grounds for reconsideration.
In writing a decision, a TLAB Member must consider opinion and evidence, and decide what weight to ascribe to each, in coming to his or her conclusions.
The Decision must provide its basis for coming to the conclusion it did, but it does not require an acknowledgement and repudiation (or concurrence with) of every argument made, and not received as desired, by the requesting party.
The Grounds for Review mandated under TLAB Rule 31 set a consequential standard for findings, that the reasons and evidence are compelling, and specifically Rule 31.17 c) that an error of law or fact has been made which would likely have resulted in a different decision or order.
The task of the Reviewer is not to assess the “correctness” of the Decision, nor to take into consideration what another Adjudicator may or may not have decided having been presented with the same evidence in this case. The task is to establish whether there are arguable, definable errors, and, as well, whether they are of a nature (i.e., are of such significance) that could meet the threshold established in Rule 31.17.
The basis for a decision must be understood and, preferably, written in plain English. A Decision must reflect a suitable basis for its conclusions, considering relevant considerations and applying the law and policy germane to the TLAB’s mandate, including its own deliberations.
16I note that it is incumbent on the presiding Member who heard the matter to listen to the evidence and make decisions based on the application of law, policy, evidence, and the public interest. Nevertheless, a Member’s decision is based on that Member’s discretionary perception of the evidence and relevant considerations.
17It is with these considerations in mind that I’ve read and reread the Member’s Final Decision and Order and the Request itself.
18I have reviewed the submissions filed in this matter as to the main TLAB Hearing, Member Wong’s May 30, 2023, Final Decision, the authorities referenced, and the DAR recording of the Hearing.
19I have also viewed the Review Request submissions filed with the TLAB by the LBNA, which consists of some 105 (105) pages and eighteen (18) Tabs, including an Overview of the Review Request.
20The Request also includes authorities in the form of the following three (3) cases which the Requestor has provided to the TLAB for guidance: Ding v Toronto, PL141455, 89 Dunloe Rd., May 14, 2015, OMB (Ding); Cosimal v Welland, PL190040, 300 Major St., October 22, 2019, LPAT (Cosimal); and, Arianna Sisti, 2021 206070 S45 03 TLAB, February 28, 2023 (Sisti).
Review Request Grounds
21It is important that the reviewer applies the language of the Rule and not enter into a set of considerations that depart from the responsibilities of a Review.
22A Review is not, as above stated, a re-hearing of the matter to consider whether the review might have come to a different conclusion. It is also not an invitation to simply challenge a decision with which one disagrees.
23On the contrary, it is a canvass as to whether any of the statutory grounds afforded a review under the Statutory Powers Procedure Act (SPPA) are established and the TLAB Rules clearly envisage that there must be a demonstrable error in the categories identified that warrants relief of the variety and to the standards provided for in Rule 31.
24Having regard specifically to Rule 31.17, above, the Requestor cites as a basis for consideration paragraphs 31.17 b) and c).
25In this regard, the full consideration must be stated and applied which is as follows: namely, whether the Member:
“31.17 b) violated the rules of natural justice and procedural fairness.”
“31.17 c) made an error of law or fact which would likely have resulted in a different Final Decision or Order.” (emphasis added)
26This standard implies that the reviewer must not only be apprised by the Review Request of a violation of the rules of natural justice and procedural fairness and clear error of law or factual matter of significance but also be satisfied that if an error occurred, it would likely have led to a different decision.
27In its Overview in the Review Request, the LBNA sets out the basis for the Request and the rationale as to why the Requestor asks that the Member’s Final Decision of May 30, 2023, be reviewed:
The Applicant applied to the Committee of Adjustment for relief from certain provisions of the City’s harmonized Zoning By-law 569-2013 to permit the construction of a new detached dwelling with a detached garage in the rear yard.
The COA approved the application, but the decision was appealed to the TLAB by the LBNA and the City. The TLAB issued a Notice of Hearing on September 21, 2022, setting a Hearing date for January 10, 2023, which was converted to a mediation session.
Following the end of the mediation session, the presiding Member set a Hearing date for March 14, 2023.
In the interim, the LBNA failed to arrive at a settlement with the Applicant and the City prior to the March 14, 2023, Hearing date.
On March 8, 2023, the City informed the Parties and the TLAB that it would attend the Hearing but take no position on the application.
Without a settlement, the March 14th Hearing proceeded as a contested appeal matter, following which the Member issued a Final Decision refusing the appeal and authorizing the three variances requested, subject to the ‘constructed substantially in accordance with the attached drawings’ standard TLAB condition.
The Requestor asserts that in making her decision, Member Wong violated the rules of natural justice or procedural fairness and made errors of fact and law which would likely have resulted in a different Final Decision, by”
o Allowing the Hearing to proceed without witness statements as required in the TLAB’s Rules or planning evidence as to how the variances requested satisfied the four-part test in s. 45(1) of the Planning Act.
o Denying the LBNA an opportunity to provide arguments and case law in support of allowing the Appeal.
o Including ‘without prejudice’ mediation discussions and content in the Final Decision.
o Incorrectly stating in the Final decision that the Applicant and the LBNA agreed to terms of settlement.
o Referring to the Long Branch Character Guidelines as a document “owned” by the LBNA.
28The LBNA requests that the TLAB review the Final Decision dated May 30, 2023, and “determine the appropriate course of action based on their findings.”1
29Rule 31.16 of the TLAB’s Rules outlines, by authority, the remedies available to the Reviewer following the completion of a Review Request:
“a) Seek further written submissions from the Parties;
b) confirm the Final Decision or final order and dismiss the Review Request, with reasons;
c) cancel the Final Decision or final order, with reasons, and, where appropriate, direct a de novo Oral Hearing before a different TLAB Member.”2
30Therefore, for the purposes of this Review Request Decision, these are the remedies available for the Reviewer to consider, although the Request does not detail which of the above-cited remedies it seeks from the TLAB.
31For the record and greater specificity, I note that the Requestor makes an explicit petition in its Request that the TLAB review the May 30th Final Decision and Order, even though the presiding Member issued two subsequent, revised Final Decisions and Orders, on June 30, 2023, and July 21, 2023, respectively.
32For clarity, those revised Final Decisions were sought by the Parties and issued by the TLAB to correct minor technical errors made by the presiding Member in the May 30th Final Decision, as permitted under Rule 30 (Correcting Minor Errors in Decisions and Orders) of the TLAB’s Rules.
33More specifically, the revised June 30th Final Decision corrected an error regarding the set of attached Site Plan and Elevation drawings, whereas the minor corrections in the revised July 21st Final Decision and Order were sought expressly by the City.
34In the latter instance, the City’s concern was that the July 21st Decision contained confidential information regarding the results of the mediation session that occurred on January 10th. Such information is protected through settlement privilege and Rule 20.6 of the TLAB’s Rules, and should not have been included.
35Although subsequently revised iterations of the Final Decision in this matter have now been issued, in the end, these iterations do not contain substantive revisions to the initial Final Decision and, therefore, this Review Request will focus on the May 30th Final Decision, as sought by the Requestor.
Violated the Rules of Natural Justice or Procedural Fairness
36In the Review Request, the LBNA asserts the following grounds for review under Rule 31.17 b):
No written witness statements and no Form 12 were submitted by the Applicant up to and including the day of the contested Hearing pursuant to Rule 16 b) and the Applicant failed to serve a witness statement (Form 12) on the other Parties and file same with the TLAB, pursuant to Rule 16.4 of the TLAB’s Rules.
At the start of the March 14, 2023, Hearing, the LBNA objected to the presiding Member proceeding to hear witnesses for the Applicant without the Applicant submitting evidence or a written witness statement.
The LBNA asserted that proceeding as such would be prejudicial to its ability to cross-examine witnesses and denied it an opportunity to provide a response to a Party’s witness statement as permitted by Rule 16.5 of the TLAB’s Rules. The Requestor asserts that this is their right under the TLAB’s Rules.
When the LBNA objected to the lack of Document Disclosure and Witness Statements and requested that the presiding Member hear arguments as to why the appeal should be allowed based on the circumstances and to provide case law in support, the presiding Member “ignored”3 the LBNA’s request and proceeded without giving reasons as to why these arguments and case law were not heard contrary to Rule 16.3 of the TLAB’s Rules.
The Requestor asserts that this contravenes the TLAB’s Rules and the principles of natural justice and procedural fairness.
37The Requestor asserts that neither the Applicant nor any of his witnesses who were called at the March 14th Hearing served the Parties with witness statements or filed same with the TLAB as required under Rule 16.4 of the TLAB’s Rules.
38In paragraph 33 (p. 6) in the May 30th Final Decision, the presiding Member paraphrases Rule 16.2 of the TLAB’s Rules as follows, italicizing the word ‘except’ for emphasis:
“Parties shall serve on all Parties a copy of every document the (sic) intend to rely on or produce in the Hearing except any Documents previously Filed with the Committee of Adjustment.”
39However, although Rule 16.2 acknowledges that Parties and Participants are not required to file and serve any documents previously filed with the Committee of Adjustment (or any public document listed in the TLAB’s Public Documents List or any document previously filed by a Party or Participant), this does not relieve the Parties of the obligation to provide a Party Witness Statement which sets out the position of the Party for all to understand in advance of the Hearing.
40In this regard, Rule 16.4 in the TLAB Rules clearly states that if a Party intends to call a witness (emphasis added) at a Hearing, the Rules require a Party to serve a witness statement on all other Parties and file same with the TLAB, using Form 12, not later than 60 days after the Notice of Hearing is issued.
41The Notice of Hearing (NOH) in this matter was served on September 21, 2022, and set the first TLAB Hearing date in this matter for January 10, 2023. The NOH outlined specific dates when witness statements were due - the Witness Statement and accompanying Form 12 were due no later than November 21, 2022.
42The Requestor submits in the Review Request that the LBNA served the witness statement and accompanying Form 12 of Ms. Christine Mercado on November 21, 2022, while no written witness statements and accompanying Form 12 were submitted by the Applicant “…up to and including the day of the contested Hearing.”4
43The Requestor asserts that the TLAB’s Rules are clear as to the role of a Party in a TLAB Hearing which includes: Rule 12.6 b) – being a witness and calling evidence in the Proceeding, provided they comply with all of the requirements in Rule 16 of the TLAB’s Rules.
44The Rules state that if a Party intends to call a witness, it must serve the other Parties with a witness statement “…using Form 12, no later than 60 Days after a Notice of Hearing is Served.”5
45Furthermore, Rule 16.4 is explicit in the requirements to be included in a Party Witness statement: a) a short-written outline of the Person’s background, experience, and interest in the Appeal; b) a list of issues they will discuss and a written outline of that Person’s intended evidence; c) the date; and d) the full legal name, email address and full mailing address of the witness.
46In the Final Decision, the presiding Member addresses the issue of disclosure, writing the following in Paragraph 11 (p. 3), “The Applicant submitted Disclosure according to the TLAB’s deadline, which confirmed no changes to his proposal as heard by the Committee.”
47However, in the following paragraph (para.12, p.3), the presiding Member then concedes that the Applicant did not provide any documents other than those previously filed with the COA:
“Ostensibly relying on Rule 16.2, which allows a Party to “rely on and produce…a) any Document previously filed with the Committee of Adjustment, b) any Public Document listed on the TLAB’s List of Public Documents; and c) any Document previously Filed by a Party or Participant”, the Applicant did not submit any further documentation.” (emphasis added)
48Finally, in paragraph 34 (p. 6), the Member writes the following:
“At the two TLAB Hearings, the Applicant relied on the same material that had been previously filed with the Committee of Adjustment or with both Parties subsequently, in advance of the first Hearing. I find that the Applicant satisfied TLAB’s requirements for procedural fairness.”(emphasis added)
49Having reviewed the Review Request, the DAR recording of the March 14th Hearing, and the documents filed with the TLAB, I cannot agree with the presiding Member’s statement, highlighted in the quote above.
50In fact, I find on the contrary, that the TLAB did indeed violate the Appellant’s requirements for procedural fairness by denying the Appellant the opportunity to understand the issues in the case before it and the planning matters the Applicant intended to rely upon in making its case before the TLAB.
51It is clear from reading the Final Decision that the Applicant not only intended to, but did call witnesses to support the Application before the TLAB.
52This is corroborated in the following extract from the Final Decision, paragraph 37 (p. 6), in which the presiding Member not only acknowledged that the Applicant would be calling witnesses to support the Application but then also accepted the evidence of those witnesses:
“The Applicant, Mr. Gaurav Singh, his consultant, Mr. David Haslam, and his designer, Mr. Murray Fearn all properly elected TLAB Party status and provided sworn oral statements at the contested TLAB Hearing. I accept the evidence of the Applicant’s consultant Mr. David Haslam, as his main representative, and Mr. Murray Feran, the Applicant’s designer, as his main witness. I also accept the witness evidence that Mr. Gaurav Singh, the Applicant, gave on his own behalf.” (emphasis added)
53I concur with the Requestor and find no evidence that witness statements were ever filed by the Applicant prior to the January 10th Hearing date as required by the TLAB’s Rules.
54At the start of the March 14th Hearing, the LBNA objected to the presiding Member proceeding with the Hearing and receiving testimony from the Applicant’s witnesses without first directing that the witnesses the Applicant intended to call file written witness statements.
55The LBNA argued that it would be prejudicial to proceed and ask it to cross-examine a witness without a witness statement submitted in advance of the Hearing.
56I must agree with the LBNA in this regard.
57The Requestor asserts that the presiding Member “ignored” the LBNA’s request to provide arguments and case law in support of allowing the Appeal based on the current situation and in the absence of witness statements or, at the very least, to adjourn the Hearing to allow the Applicant to submit the requisite documents.
58The presiding Member clearly found no issue with this situation, or the request from the LBNA, and proceeded to hear the evidence and make a determination regarding the appeal matter that was before her.
59This is confirmed by the presiding Member in the following excerpt in paragraph 35 (p. 6) of the Final Decision:
“The Appellant questioned the sufficiency and quality of evidence that the Applicant provided, arguing that that (sic) Applicant did not provide any expert testimony. The Appellant, however, did not provide any expert testimony either. Neither the Applicant nor the Appellant called a qualified expert planner to provide expert evidence.”
60Furthermore, the presiding Member goes on to expand on and clarify the TLAB’s Rules regarding witnesses, stating that “…Further…Parties may make submissions in a Proceeding according to TLAB Rules of Practice and Procedure, Rule 12.6 (f). In this way, TLAB often receives witness statements from self-represented Parties and their non-expert representatives, none of who (sic) are deemed qualified experts.”6
61However, while the presiding Member attempts to address the issue of ‘expert evidence’ she also appears to raise another issue related to the requirement for any opinion evidence before the TLAB.
62Member Wong, in the selected excerpts highlighted in paragraphs 55 and 56, above, inadvertently, provides support for the arguments put forward in the Review Request by the Requestor that the decision-maker violated the rules of natural justice and procedural fairness.
63Firstly, Member Wong seems to acknowledge that while the TLAB receives non-expert witness statements from Applicants in appeal matters, which is permitted by the TLAB’s Rules, the submission of a witness statement was not a requirement in the case before her, even though planning evidence was proffered by the Applicant’s witnesses.
64While I address this issue in more detail in the following section, I note that the courts have determined that in a ‘de novo’ hearing, the onus is on the Applicant to prove its case, and since the matter relates to a minor variance, the Tribunal must consider the four-part test set out in s. 45(1) of the Planning Act.
65Therefore, the Tribunal needs to hear land use planning evidence and the Applicant should have been aware that retaining a land use planner for the hearing would have been advantageous to their interests.
66Secondly, the presiding Member seems to make the determination that while the Applicant did not provide any expert testimony, the Appellant did not provide any either and, therefore, the sufficiency and quality of the evidence provided by the Applicant were acceptable. Again, I respectfully disagree with the decision-maker.
67Expert witness evidence in a TLAB appeal is not a necessity but is certainly helpful in meeting the burden of evidence required to meet the statutory tests. The burden of proof is on the Applicant to prove its case, even when they are not the Appellant, by virtue of the application being heard ‘de novo’.
68To quote my colleague, former Member Gopikrishna, in a recent final decision he issued which I believe is applicable:
“The Applicant’s disproving the case of the Appellant does not automatically prove their case, because the evidence is not a zero-sum game where there are only two outcomes – namely, the Applicant is a 100% correct, or the Appellant is 100% correct, in which case the Applicant’s disproving the Opposition’s case, automatically results in their evidence being preferred.”7
69As noted in Ding, “…it is incumbent upon those who are party to appeals before the Board to come prepared for the hearing and to offer planning evidence in support of their position where necessary.” [paragraph 15 of Ding decision].
70I believe it was prejudicial to the Appellant’s case to not direct full disclosure from the Applicant and direct that witness statements be filed in a timely manner before proceeding further with the Hearing, whether those be from expert planning witnesses or non-expert witnesses.
71I concur with the Requestor that in not doing so the presiding Member denied the LBNA the opportunity that should have been their right in accordance with Rule 16.5 of the TLAB’s Rules and that this violated the rules of natural justice and procedural fairness.
Made an Error of Law or Fact Which Would Likely Have Resulted in a Different Final Decision or Final Order
72The Requestor asserts that in oral testimony at the Hearing, the Applicant stated they did not submit witness statements because they said they did not understand the process (DAR for 18 Twenty Fourth St. Hearing, Timestamp: 1:21:38/7:49:20).
73The Requestor also contends that the Applicant failed to submit data to prove that the requested variances satisfied the four statutory tests in s. 45(1) of the Planning Act, and that “all the evidence provided in the hearing was that the variances did not meet the four tests.”8
74Furthermore, the Requestor submits that during the Hearing, the Applicant’s witnesses conceded “…under cross-examination to not even having read the Official Plan and was not familiar with the policies” and that “…they could not speak to the four tests. (DAR recording 18 Twenty Fourth St. 202230314, Timestamp: 2:58:00 – 2:59:14/7:49:20)”9
75This is further supported through the testimony of the Applicant’s building designer, Murray Fearn, whom the Requestor asserts agreed that neither he nor any of the Applicant’s other witnesses had presented any “…Planning or Forestry Evidence” in the Hearing. (DAR recording of 18 Twenty Fourth St. Hearing 20230314, Timestamp: 2:58:40 – 2:59:20/7:49:20)”10
76The presiding Member addresses these issues to some degree in the Final Decision and I’ve already highlighted the relevant paragraphs above.
77In her Final decision, under the ‘Analysis, Findings and Reasons’ – Issue I and Issue II section, Member Wong attempts to explain why she found the evidence and testimony of the Applicant’s witnesses acceptable and satisfied “…the TLAB’s requirements for procedural fairness.”
78In paragraph 37, at page 6, the presiding Member writes:
“The Applicant, Mr. Gaurav Singh, his consultant, Mr. David Haslam, and his designer, Mr. Murray Fearn, all properly elected TLAB Party status and provided sworn oral statements at the contested Hearing. I accept the evidence of the Applicant’s consultant Mr. Haslam, as his main representative, and Mr. Murray Fearn, the Applicant’s designer, as his main witness. I also accept the witness evidence that Mr. Gaurav Singh, the Applicant, gave on his own.” (emphasis added)
79Member Wong confirms that Mr. Haslam and Fearn were recognized as ‘witnesses' at the Hearing and that she accepted their evidence although they were not presented as professional planners nor qualified by the presiding Member to provide opinion evidence in the area of land use planning.
80In administrative law, the acceptance and weighing of evidence is remitted to the trier of fact. It is that individual who is charged with the broad responsibility to advance the public interest by hearing opinion evidence and applying law and policy and own experience to matters for dispute resolution.
81To accomplish that, the Member must be alert to issues, fairly listen to all ‘sides’ and address issues within the statutory framework within which the appeal is advanced.
82A Member is entitled, on the standard of reasonableness, to draw inferences and conclusions from the evidence provided there is some relevant evidence tendered to support the conclusion and the conclusion itself is not perverse.
83Where a Member considers and evaluates the variances requested in a manner described, the fairness principle is respected and it is not breached, certainly where it is undisputed that all the evidence was heard and the principles of fairness and natural justice were followed, and where the considerations evidenced in the reasons are respectful of the task at hand.
84Unfortunately, I believe that in the matter in question, this was not maintained.
85I concur with the Requestor that if the Applicant intended to call witnesses before the TLAB in support of the application, those witnesses should have been required to file witness statements prior to the Hearing as required by the TLAB’s Rules.
86I also concur that in not providing that direction at the start of the Hearing, the presiding Member erred and the LBNA was denied an opportunity to review that statement and appropriately respond and prepare, as was their right.
87I also concur with the Requestor that it would have been prejudicial to the Hearing to ask the LBNA to cross-examine the Applicant’s witnesses without the benefit of a witness statement filed in advance, a right enshrined in Rule 16.5 of the TLAB’s Rules.
88I agree that the fairest procedure would have been that the presiding Member either have made a ruling on the motion by the LBNA to provide arguments and case law in support of allowing the Appeal based on the situation and in the absence of witness statements, or to adjourn the Hearing and direct the Applicant’s witnesses to file a witness statement.
89It is apparent from both the May 30th Final Decision and the Review Request, that the Applicant did not come to the Hearing prepared to provide the land use planning evidence required for a ‘de novo’ hearing, meaning Mr. Singh could not provide opinion concerning planning matters and neither could his witnesses.
90A hearing before the TLAB is ‘de novo’ meaning the entire application must be considered anew regardless of the decision of the Committee of Adjustment. The burden is on the Applicant to meet the four-part test for variances under s. 45(1) of the Planning Act, even where the COA has previously authorized the requested variances.
91As the former Ontario Municipal Board has established in Ding, “…it is incumbent upon those who are party to appeals before the Board to come prepared for the hearing and to offer planning evidence in support of their position where necessary.”
92The Applicant admitted that he provided no witness statements because he did not understand the process. The Courts have determined that unfamiliarity with a tribunal’s rules is not an excuse.
93It is incumbent upon those who are party to an appeal before the TLAB to come prepared for a hearing and to offer planning evidence in support of their position.
94I agree with the Requestor that the Applicant failed to provide the necessary land use planning evidence in this matter.
95In fact, the presiding Member alludes to this in the Final Decision, in an extract from paragraph 35 (page 6), where she writes, “Neither the Applicant nor the Appellant called a qualified expert planner to provide evidence.”
96Yet, Member Wong proceeded to hear what she characterized as “planning evidence” as to the four statutory tests in the Planning Act from both Mr. Haslam and Mr. Fearn.
97In addition, in the same paragraph, the Member attempts to justify accepting the evidence of the Applicant’s witnesses by stating that “The Appellant, however, did not provide any expert testimony either.”
98As noted above, the onus to prove its case rests on the Applicant and not the Appellant. Whether provided by a qualified expert or not, planning evidence submitted in support of the Application must not only withstand the evidence of the opposition but also, more importantly, fulfil the requirements of the statutory tests. There is, therefore, no equivalency between expectations of the Applicant and Appellant and, therefore, I agree that the Member did not apply the appropriate standard in accepting the evidence of the Applicant.
99Furthermore, in paragraph 81 (page 14) of the Final Decision, the presiding Member wrote that “there is no consent application before the TLAB, and I must use the planning evidence before me to assess the FSI variance for the subject property alone.” (emphasis added)
100The Applicant’s own witnesses acknowledged that they had neither read the Official Plan nor understood the policies and provided no evidence as to whether the variances requested satisfied the four-part test in the Act.
101Therefore, I agree with the Requestor that the Applicant failed to provide any land use planning evidence to satisfy the four-part tests which is an error in law or fact.
CONCLUSION
102Rule 31 allows a Party to request a Review of a Final Decision made by a presiding Member at a TLAB hearing. It does not grant a re-hearing automatically, or an opportunity to re-litigate a point that was not favourably received. It is also not the role of the Reviewer to determine whether it would have decided differently if it was the original decision maker.
103The Reviewer is to give deference to the factual findings of the presiding Member and where the original decision maker has provided replicable and reasonable grounds for evidentiary findings, absent any of the identifiable constraints in the Rules, I am to support the Decision.
104Rule 31.17 of the TLAB’s Rules requires the reasons and evidence provided by the Requestor to be ‘compelling’. In assessing similar (although not identical) language in the rules of the former Ontario Municipal Board (OMB), the OMB held that a compelling case is one that is “so attractive as to be overpowering and irresistible” which leads the Tribunal to conclude that it is constrained from considering any other path and it has no option but to grant the review relief sought.
105In addition to presenting a ‘compelling’ case, the Requestor is required to demonstrate a likelihood, not a mere possibility, that the outcome would have been different, even if the Requestor has demonstrated an error of fact or law. In an OMB Decision, the Tribunal emphasized that errors warranting a Review must be of such weight and substance that they would have materially affected the final conclusions of the Tribunal.
106In the Review Request in question, I have found that there are sufficient grounds established under TLAB Rule 31.17 b) and c) to grant the remedy or remedies permitted under Rule 31.16 c); that is, to “cancel the Final decision or final order, with reasons, and, where appropriate, direct a de novo Oral Hearing before a different TLAB Member.”
107I am satisfied that the Final Decision fails in its essential purpose of applying promulgated law and policy in a manner that communicates the decision is premised and fully supported on the relevant considerations, approach, and evidence.
108However, it is important to note that this Review Request Decision does not take a position of adjudicating on the merits or otherwise of the Application as that requires a hearing process where the Parties and Participants have a full opportunity to address all relevant considerations and the Member demonstrates consideration of the same.
REVIEW DIRECTION
109TLAB staff are directed to schedule and give Notice of Hearing for a de novo Hearing of the application which was the subject of the TLAB Decision and Order, dated May 30, 2022, regarding 18 Twenty Fourth Street.
DECISION AND ORDER
110In accordance with Rule 31.17 c) of the TLAB’s Rules of Practice and Procedure, as amended on December 2, 2020, the Final Decision and Order dated May 30, 2023, regarding 18 Twenty Fourth Street is cancelled and a de novo Oral Hearing is ordered to be held before a different TLAB Member with respect to the requested variances.
D. Lombardi
Chair Panel Member
Footnotes
- LBNA’s Review Request, 18 Twenty Fourth Street, dated June 29, 2023, para. 69, p. 14.
- TLAB’s Rules of Practice and procedure, as constituted after December 2, 2020, p. 44.
- LBNA’s Review Request for 18 Twenty Fourth Street, dated June 29, 2023, paragraph 40, p. 9.
- Ibid., paragraph 23, p. 7.
- Rule 16.4 of the TLAB’s Rules of Practice and Procedure
- Final Decision and Order for 18 Twenty Fourth St., dated May 30, 2023, para36, p. 6.
- Final Decision, 194 Rosedale Heights Dr., Aug. 17, 2023, 22 182877 S45 11 TLAB, para. 60 b).
- LBNA’s Review Request for 18 Twenty Fourth Street, dated June 29, 2023, para. 34, p. 8.
- Ibid., para. 64, p. 13.
- Ibid., para. 65, p. 8.