Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
2023-11-15
23 153654 S45 15 TLAB
Cao (Re), 2023 ONTLAB 153
DECISION AND ORDER
Issuance Date:
November 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):
H. Cao
Applicant(s):
7K Design Ltd.
Property Address:
1Proctor Cres
COA File No.:
23 124688 NNY 15 MV (A0164/23NY)
TLAB Case File No.:
23 153654 S45 15 TLAB
Hearing Date(s):
November 8, 2023
Decision Delivered By:
TLAB Panel Member T. Kezwer
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Appellant
H. Cao
H. Zhou
Applicant
7K Design Ltd.
INTRODUCTION AND CONTEXT
1This is an appeal by H. Cao (the “Appellant”) from a decision of the North York Panel of the City of Toronto Committee of Adjustment denying two variances to construct a cabana in the rear yard. The cabana has already been constructed.
2The requested variances involve a reduction in the rear yard soft landscaping, and an increase in the permitted maximum lot coverage.
3The subject property is located on the northeast corner of Rothmere Drive and Proctor Crescent, which is north of Lawrence Avenue East, and both south and east of Mildenhall Road. The subject property is zoned RD (f18.0; a690) – Residential Zone in the City of Toronto Zoning By-Law 569-2013, as amended.
4The Appellant and the Appellant’s Representative failed to show up to the hearing.
5A Notice of Hearing for this appeal was issued on August 8, 2023, in the prescribed form and transmitted to the Appellant and others entitled to the notice.
6The Appellant’s behaviour is unacceptable. It is an abuse of the time and resources of the Toronto Local Appeal Body (the “Tribunal”) for an Appellant to ignore a scheduled hearing.
7I remained present for one hour after the commencement of the proceeding at 9:30 a.m. on November 8, 2023, the scheduled appeal hearing day.
8No person was in attendance at the start of the hearing, and no person connected or attended throughout the following hour during which the virtual hearing room was open.
THE LEGISLATIVE AND POLICY FRAMEWORK
9Provincial 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.
10Variance – 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.
SUMMARY OF EVIDENCE
11Neither the Appellant nor the Appellant’s Representative attended the Tribunal hearing. As such, no evidence was received at the hearing.
ISSUES AND ANALYSIS
12The Appellant bears the burden of demonstrating that the requested variances meet the four statutory tests under section 45(1) of the Planning Act. The Appellant has failed to meet its burden.
13My colleague, Tribunal Panel Member Gerry Swinkin, issued a recent decision, Nicol (Re), 2023 ONTLAB 151, that also dealt with an appellant who did not attend at a scheduled Tribunal hearing.
14Member Swinkin noted that the Tribunal does not have an explicit rule dealing with failures of attendance by an appellant. However, the Ontario Land Tribunal (“OLT”), which carries out a similar function to the Tribunal does have an explicit rule dealing with Party non-attendances at the time of hearing commencement.
14The OLT Rule 3.3 stipulates that “the Tribunal will not proceed for at least 30 minutes after the commencement time given in the Notice for an in person hearing even if a party of record or that party’s representative has not yet appeared, unless prior notice has been given to the Tribunal that the person will not attend at the scheduled time.”
15That Rule then goes on to stipulate that for an electronic hearing event the time period for standing down is 15 minutes.
16As this Tribunal does not have an explicit rule on this circumstance, the Tribunal took guidance from OLT Rule 3.3, and in order to afford a reasonable measure of indulgence to the appellant here, the Tribunal stood down for one hour.
CONCLUSION
15The Appellant did not attend the hearing and no evidence was presented in support of the requested variances.
DECISION AND ORDER
16The matter is dismissed as the Appellant has failed to demonstrate that the requested variances meet the four statutory tests for a minor variance.
T. Kezwer
Panel Member