Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
Date:
2023-09-15
22 223844 S45 18 TLAB
Nhan (Re), 2023 ONTLAB 132
DECISION AND ORDER
Issuance Date:
September 15, 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):
A. NHAN
Applicant(s):
ARANI ARCHITECTURE
Property Address:
100 GREEN BUSH RD
COA File No.:
22 158689 NNY 18 MV (A0514/22NY)
TLAB Case File No.:
22 223844 S45 18 TLAB
Hearing Date(s):
September 7, 2023
Decision Delivered By:
Vice Chair A. Bassios
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Appellant
A. N. Nhan
A. Stewart
Applicant
Arani Architecture
Owner
H. K. Nhan
Party (TLAB)
City of Toronto
M. Lafortune
Expert Witness
D. Steinberg
INTRODUCTION AND CONTEXT
1This is an Appeal of the City of Toronto Committee of Adjustment’s (COA) refusal of variances for the property known as 100 Green Bush Rd (subject property). The purpose of the application is to construct a one storey addition to an existing two storey semi-detached dwelling.
2The subject property is located in the Newtonbrook West neighbourhood, in the Bathurst Ave and Steeles Ave area.
3The subject property is designated Neighbourhoods in the Official Plan and zoned RM (f18.0; a665; u2) under City of Toronto Zoning By-law No. 569-2013.
4Variances for maximum permitted lot coverage, and minimum required east side yard setback were requested.
5A previous Decision and Order were issued on April 5, 2023, in relation to this Appeal, addressing deficiencies in the filing of the Appeal.
6With the assistance of legal counsel, the deficiencies in the required filing documents were addressed by the Appellant within the timeline stipulated in the Order.
7On a parenthetic note, the Order advised the Appellant that they would be well advised to obtain informed assistance concerning the Tribunal’s Rules relating to the pre-filing of witness and documentary evidence in advance of the hearing.
8The Appellant did not submit any Witness Statements or Document Disclosure in support of the requested variances, as is required by the TLAB Rules of Practice and Procedure (TLAB Rules) and set out in the Notice of Hearing.
9A Notice of Motion was filed by the City of Toronto (City), a Party to this Appeal, on August 23, 2023, requesting that the Appeal be dismissed on the following bases:
i. the Appellant has failed to mount a land-use planning ground upon which the Toronto Local Appeal Body ("TLAB") could allow all or part of their appeal;
ii. the Appellant's appeal satisfies one or more grounds set out in section 45(17) of the Planning Act to warrant a dismissal of the appeal without holding a hearing on the appeal; and
iii. the Appellant has failed to meet the requirements for evidentiary submission pursuant to the TLAB Rules of Practice and Procedure.
10The City’s Motion was correctly filed in advance of the Hearing date and requested a Hearing in writing. As a Hearing of the Appeal was scheduled for September 7, 2023, two weeks from the Motion filing, Parties were advised that the Motion would be dealt with at the scheduled Hearing rather than by a written hearing of the Motion.
11Ms. Stewart provided the TLAB written notification via email the morning of the scheduled Hearing on September 7, 2023, that she was not retained to represent the Appellant at the Hearing. At the commencement of the Hearing, Ms. Stewart appeared and advised the TLAB and the City representatives that she had previously been advised by the Appellant that he could not afford to retain experts to support his Appeal and wished to withdraw the Appeal. However, he advised her the day before the Hearing that he intended to pursue the Appeal and represent himself.
THE LEGISLATIVE AND POLICY FRAMEWORK
12Provincial Policy – S. 3
A decision of the Toronto Local Appeal Body (TLAB) must be consistent with the 2020 Provincial Policy Statement (PPS) and conform to the Growth Plan for the Greater Golden Horseshoe (Growth Plan) for the subject area.
13Variance – S. 45(1)
In considering the applications for variances from the Zoning By-laws, the TLAB Panel must be satisfied that the applications meet all of the four tests under s. 45(1) of the Act. The tests are whether the variances:
maintain the general intent and purpose of the Official Plan;
maintain the general intent and purpose of the Zoning By-laws;
are desirable for the appropriate development or use of the land; and
are minor.
14Dismissal without Hearing - S. 45 (17)
The Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if it is of the opinion that:
the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal,
the appeal is not made in good faith or is frivolous or vexatious,
the appeal is made only for the purpose of delay,
or the appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process;
the appellant has not responded to a request by the Tribunal for further information within the time specified by the Tribunal.
SUMMARY OF EVIDENCE
15I heard the City’s Motion to Dismiss, which is detailed in Exhibits 1 and 2.
16The City noted the TLAB Rules which set out the framework by which an appellant must mount its land use planning case. In the opinion of the City, the Appellant has entirely failed to abide by the TLAB Rules, and timelines set out in the Notice of Hearing.
17Despite the City’s attempts to ascertain the Appellant’s intentions, they received no communications from the Appellant.
18The City asserted that there is “no sufficient basis by which the TLAB could allow the Appellant’s Appeal to continue”.
19The Appellant’s response to the City’s Motion was generally as follows:
He had built a greenhouse without a permit to assist in dealing with a personal health crisis.
He did not have the money to hire a lawyer to come to the Hearing.
He wished to represent himself in the Hearing and wanted to submit a note from his doctor.
20Mr. Milad Dehnad asked to be heard as a “friend” of the Appellant to assist in explaining the situation. I allowed Mr. Dehnad to speak in support of the Appellant.
21Mr. Dehnad asked that the Appellant be given “another chance”. He said that he and the Appellant did not understand the process and only now realize that all that was needed was an email. (I am not certain whether Mr. Dehnad was referring to a request for an adjournment or some other part of the process prior to the Hearing).
22I questioned Mr. Dehnad about his understanding of the responsibilities of an Appellant and whether he was aware of these when the Appeal was filed. His response was that the Architect had filed the Appeal and so neither he nor the Appellant understood the process.
ISSUES AND ANALYSIS
23The Appellant asked that he be given another opportunity to make his case. It was clear that the Appellant seeks the compassion of the TLAB to allow him to retain what he referred to as a “greenhouse” for the benefit of his health and wellbeing.
24The Appellant and Mr. Dehnad acknowledged that they had not met any of the requirements set out by the Notice of Hearing and the TLAB Rules of Practice and Procedure.
25In tandem with a focus on the intensity of his need, the Appellant also asked for assistance because he cannot afford to pay for a lawyer and experts to make his case.
26I am sympathetic to the Appellant’s personal circumstances, both from a mental health perspective and recognizing the financial burden participation in a Tribunal hearing can impose upon Parties.
27The TLAB is committed to sustaining an accessible forum for the resolution of land use disputes within its mandate. On occasion, this means that latitude will be granted to those who are self-represented and those who are not familiar with the TLAB Appeal process. However, having filed an appeal to the Tribunal, an Appellant is obligated to cultivate a basic understanding of the format, expectations, and Rules of the TLAB.
28The assertions set out in the City’s Motion to Dismiss are unassailable. I agree with the City that the Appellant has entirely failed to abide by the TLAB Rules and timelines set out in the Notice of Hearing and that there are compelling grounds to dismiss this Appeal on the basis of a failure to comply with TLAB procedural requirements as well as a failure, on the day of the scheduled Hearing, to be prepared to provide grounds to establish that the variances requested meet the four tests set out in s.45(1) of the Planning Act.
29There are a number of considerations in this matter that counterweigh the Appellant’s request for “another chance”.
30The Appellant is the Owner/Applicant in this case, having filed an appeal of the COA’s refusal of his variances. The Appellant took the active step of instructing that the Appeal be initiated and is directly responsible for understanding the obligations that they were setting in motion.
31The actions of the Appellant have consequences for the City, as the other Party to this matter, and for the TLAB, which has expended resources in case management and convening a formal hearing for this matter. The City has met its responsibility to these proceedings and filed an Expert Witness Statement as well as assigning legal representation and a Planning witness to the case.
32The Appellant asks for forgiveness for not meeting the expectations of the process for the reason that they did not know the process. As Ms. Lafortune (for the City) noted, ignorance of the process is not an excuse; a Party to a proceeding before the TLAB is obligated to understand their responsibilities, even more so having initiated the Appeal.
33In order to be successful in an appeal before the TLAB, it is not necessary that a lawyer or a qualified Planner be retained. Persons unfamiliar with the land use planning process and the procedures of the TLAB can, and have been, successful in achieving the outcomes they sought. Success, however, does require a researched understanding of the expectations of the Tribunal, the underlying legislative framework, the policies of the Official Plan and the intent behind the provisions of the Zoning By-law.
34With regard to the Appellant’s request that the TLAB reconvene another Hearing date for this matter, notwithstanding the City’s Motion to Dismiss, I note the following:
Despite enquiries from the City’s lawyer as to the Appellant’s intentions, no response was conveyed, no discussion was engaged, and no adjournment was requested.
A previous Order of the TLAB advised the Appellant to obtain informed assistance concerning the Tribunal’s Rules relating to the pre-filing of witness and documentary evidence in advance of the hearing.
Ms Stewart assisted the Appellant in correcting deficiencies in filing the Appeal and also explained to the Appellant what would be required in order to pursue the Appeal to a Hearing.
There are numerous resources, on the TLAB website and elsewhere, that are available to assist the general public in understanding what a Hearing entails and the duties and obligations of Parties and Participants in TLAB Appeals.
35The requirements of these proceedings were conveyed to the Appellant by multiple methods and yet these requirements were not met. No request for adjournment was made, nor was any response made to the City’s enquiries prior to the scheduled Hearing day.
36By causing the Appeal to be filed, the Appellant was afforded an opportunity to have their request for variances to be reheard on the scheduled Hearing date of September 7, 2023. The Appellant was forewarned in various ways that they were obliged to take action if they wished to avail themselves of the opportunity for a second consideration of the variance requests.
37The unresponsiveness of the Appellant to the enquiries of the City and the failure to fulfil any of the obligations of an Appellant/ Party undermines the TLAB’s ability to come to a just, expeditious and cost-effective determination of this Appeal (TLAB Rule 2.2).
38The TLAB Appeal process is tightly bound to the provisions of the Planning Act and adherence to basic legal principles. The Appellant cannot be exempted from these fundamental requirements.
39The failure of the Appellant to convey any meaningful information to the City or to the TLAB prior to the Hearing mitigates strongly against granting an adjournment and affording the Appellant another opportunity to have their request for variances considered by the TLAB. The City is correct in that it would be manifestly unfair to the City to forgive the Appellant’s disregard for the TLAB Rules and the procedural fairness that the TLAB Rules protect.
40In my opinion, the Appellant forfeited their opportunity to have this Appeal heard by disregarding their obligations to the process and by remaining unresponsive to multiple requests to disclose their intentions prior to the Hearing date.
CONCLUSION
41Unfamiliarity with the land use planning appeal process does not excuse a Party the basic respect and seriousness that must be accorded to the TLAB process. In this case, the Appellant was advised via multiple communications that they were obliged to meet the requirements of the Tribunal process and they did not convey a request for an adjournment, nor clarify their intentions until the day of the actual Hearing.
42The TLAB is committed to fixed and definite dates (TLAB Rule 2.1). The City has filed a Motion to Dismiss the Appeal on the basis that the Appellant has entirely failed to meet any of the process requirements and has provided no justifiable reason for the failure to comply with the TLAB Rules. In the City’s submission, no further relief is warranted or justified. I must agree with the submissions of the City; I have been given no justifiable reason to set aside the City’s request to dismiss this Appeal and to grant an adjournment to another date for the hearing of this Appeal.
43The City’s Motion to Dismiss is granted.
DECISION AND ORDER
44The Appeal is dismissed. The Committee of Adjustment decision noted above is final and binding, and the file of the Toronto Local Appeal Body is closed.
A. Bassios
Panel Chair