Toronto Local Appeal Body
40 Orchard View Blvd, Suite 211 Toronto, Ontario M4R 1B9
2022 134415 S45 12 TLAB
Morozov (Re), 2023 ONTLAB 137
REVIEW REQUEST ORDER
Issuance Date: September 21, 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): M. Morozov
Applicant(s): PMP Design Group
Property Address: 218 Vesta Dr.
COA File No.: 21 248503 STE 12 MV (A0026/22TEY)
TLAB Case File No.: 22 134415 S45 12 TLAB
Hearing Date(s): September 01, 2022
Decision Delivered By: TLAB Panel Member S. Makuch
REGISTERED PARTIES AND PARTICIPANTS:
| People Type | First Initial. Last Name | Representative |
|---|---|---|
| Applicant | PMP Design Group | |
| Appellant | M. Morozov | M. Mazierski |
REVIEW REQUEST NATURE AND RULE COMPLIANCE TO INITIATE
1On, March 30, 2022, the Committee of Adjustment (COA) refused an application for variances to legalize and to maintain the rear ground floor deck and rear basement addition which were constructed without the benefit of a building permit and without obtaining the needed variances for a permit.
2Mr. M. Morozov, the owner of the subject property, appealed the COA’s decision to the Toronto Local Appeal Body (TLAB).
3At the TLAB hearing only one person appeared in opposition to the application, Judith Otis, owner of the adjacent property to the north, who appeared as a participant. She failed to file a witness statement or present any expert evidence but was a witness on her own behalf. The appellant presented the expert evidence of a qualified land use planner who provided evidence that the variances met the four tests of the Planning Act and should be approved. After hearing the appeal, the presiding TLAB Member issued a Final Decision and Order (Final Decision) on April 28, 2023, dismissing the appeal.
4On May 26, 2023, Mr. Mazierski (Requestor), the Owner’s legal representative, filed a Request to Review (Request) the Final Decision with the TLAB as is permitted under the TLAB’s Rules and Practice and Procedure (Rules).
5The Review Request seeks cancellation of the Final Decision and direction that a ‘de novo’ Hearing before a different TLAB Member pursuant to Rule 31.16 of the TLAB’s Rules. The only evidence filed respecting the Request was an affidavit in support of the Request by the same planner who gave evidence at the TLAB Hearing.
6An administrative screening was completed by TLAB staff, and the Request was deemed to be compliant.
7No material was filed in response to the Request.
THE LEGISLATIVE AND POLICY FRAMEWORK
8The Rules set out below are particularly relevant to this Request. I have been designated by the Chair to conduct this review request under Rule 31.2. I find that the primary grounds for the request are found under Rule 31.17 and that under Rule 17 (b) that the rules of natural justice or procedural fairness were violated.
Rule 3.0
31. 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.
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.
CONCLUSION
9Although the Requester was not precise and clear, I find that the basic issue in this Review Request is the weight the decision gives to the fact that the variances were applied for after construction, and thus the applicant by-passed the opportunity for mediation. I find based on this issue the decision is subject to challenge for breach of natural justice.
10The Supreme Court of Canada has held that there a number of aspects to natural justice. One of them is a reasonable apprehension of bias. This principle does not require a finding of bias on the part of the decision maker, and I make no such finding. The Supreme Court of Canada dealt with the issue of natural justice before administrative tribunals in the case of Baker v Canada 1999 CanLII 699 (SCC), [1999] 2 SCR 817 and the issue of bias in particular. It stated: “The duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rights affected.” It also stated: “Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias, by an impartial decision-maker.” And, finally, I note it held that the test for a reasonable apprehension of bias is whether “a reasonable and well-informed member of the community would conclude that the reviewing officer had not approached this case with the impartiality appropriate to a decision made…”. Many planning case affecting the use of land the courts have held the rules of natural justice apply since the case of Wiswell v. Metropolitan Corporation of Greater Winnipeg, 1965 CanLII 106 (SCC), [1965] SCR 512 and since the TLAB functions as a court those rules apply to it. The question then is whether the decision raises the reasonable apprehension of bias on the basis of the following statement:
“The Applicant is applying for authorization of variances after, not before, construction or “as-built,” which reduces the opportunity for the community to meaningfully engage in the planning process. It by-passes the opportunity for TLAB-mediation which is offered to all residents to reduce local conflict, strengthen neighbourhood relationships and community, and effect better city planning outcomes. By side-stepping the opportunity for meaningful engagement from other residents in the neighbourhood and City of Toronto interests, the Applicant is reducing the effectiveness of overall City planning “
The grounds for bias arises from the Member’s concern about the applicant’s failure to seek mediation which is not required as part of the TLAB process. Mediation is not a relevant consideration at all in the hearing and if it had been undertaken and failed it would be confidential. This focus on a lack of mediation creating a bias could be heightened as a result of the Member’s TLAB biography which describes her as an “accredited mediator who is passionate about community, planning and the environment” and the holder of “a certificate in Advanced Mediation from Harvard's Negotiation Institute.” There is no doubt that such qualifications are desirable and commendable for a TLAB member but in the context of the above statement they can raise a reasonable apprehension of bias.
I find that there are grounds for “a reasonable and well-informed member of the community” to conclude that the Member was biased against the applicant given paragraph referred to above in her decision. As argued by the Requestor it has long been customary policy for planning appeal tribunals to disregard whether construction has been completed before variances were sought. Construction has not been found a relevant consideration in applying the four tests of the Planning Act. (see Turner v. Vaughan (City) Committee of Adjustment,1994 Carswells Ont 5488 (OMB),[1994] O.M.B.R. 2036 (O.M.B.) at para 61, Re F&A Associates, 2018 Carswells Ont 1553 (TLAB) at para472, and Al-Kazely v. Hamilton (City), 2017 Carswells Ont 20860 (OMB) at para 213).
11A reasonable apprehension of bias can also be found arising from the fact that there were no members or community groups, other than one neighbour, in attendance the hearing. In spite of the Member stating “By side-stepping the opportunity for meaningful engagement from other residents in the neighbourhood and City of Toronto interests, the Applicant is reducing the effectiveness of overall City planning.” There was no evidence of side “stepping meaningful engagement” of other residents in the neighbourhood. Indeed, in the absence of any evidence of improper notice, residents were aware of the matter, were not in opposition, and thus did not attend the hearing because they were not opposed to the variances. Moreover, since the only neighbour in opposition sought participant status at the hearing and not party status, she gave up a right to respond to the Request for Review, had no right to request mediation and displayed no interest in mediation.
12Finally, I note that the member was properly sensitive to the complaints of the only person in opposition. Those complaints respected the rear deck. They related to overlook, vapour and fumes and to a fireplace, TV-screen, sink, cooking area, and living space. While the concern for these complaints is understandable, none were the result of the variances sought and were shielded by a privacy fence. As a result, the variances were refused for irrelevant reasons.
DIRECTION (IF APPLICABLE)
13I do not find that the member was biased. However, I conclude the reference to the applicant’s failure to seek mediation and the statement that this has an impact on community involvement and City planning, is sufficient to give rise to a reasonable apprehension of bias. The Rules does not require me to find that a different decision would have been made if the rules natural justice had been violated. Nevertheless, I find the the Final order in this matter should be cancelled and a new hearing before another TLAB member should be directed. Having made this finding it is not necessary for me to determine if the member made errors of fact and law that would have likely resulted in a different Final Decision or final order.
DECISION AND ORDER
14I do not find that the member was biased. However, I conclude the reference to the applicant’s failure to seek mediation and the statement that this has an impact on community involvement and City planning, is sufficient to give rise to a reasonable apprehension of bias. The Rules does not require me to find that a different decision would have been made if the rules natural justice had been violated. Nevertheless, I find the the Final order in this matter should be cancelled and a new hearing before another TLAB member should be directed. Having made this finding it is not necessary for me to determine if the member made errors of fact and law that would have likely resulted in a different Final Decision or final order.
S. Makuch
Panel Member