Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
MOTION DECISION AND ORDER
Issuance Date: December 7, 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): December 6, 2023
Decision Delivered By: TLAB Panel Member G. Swinkin
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
APPLICANT
KHALMUR BLDG PRODUCTIONS INC.
APPELLANT
LONG BRANCH NEIGHBOURHOOD
APPELLANT (CITY)
CITY OF TORONTO
M. LAFORTUNE - 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
EXPERT WITNESS
H. SAVINSKY
INTRODUCTION AND CONTEXT
1Khalmur Bldg. Productions Inc. (the "Applicant") made application to the Toronto Committee of Adjustment for zoning variance relief in order to redevelop its property at 18 Twenty Fourth Street (the "Property") as a new two storey dwelling. By way of its decision on July 28, 2022, the Committee approved the application.
2Two appeals were filed against that decision on August 17, 2022, one by the Long Branch Neighbourhood Association ("LBNA") and the other by City of Toronto (the "City").
3A hearing of those appeals by the Toronto Local Appeal Body (the "Tribunal") was held on March 14, 2023. The decision of that panel of the Tribunal issued on May 30, 2023. The Tribunal dismissed the appeals.
4LBNA requested a Review of that Decision by way of a Request for Review filed with the Tribunal on June 29, 2023. The Request was granted by way of the Order of Chair Lombardi issued on August 30, 2023, and a new hearing was ordered, which was then scheduled for December 6, 2023.
5In accordance with Tribunal practice, a Notice of Hearing was issued, which stipulated dates for the filing of disclosure of documents and for the filing of witness statements. Those dates were last occurring on October 30, 2023. Documentary and witness statement material was filed by that date by both LBNA and the Applicant.
6As detailed in the supporting affidavit of Christine Mercado and in the Notice of Motion filed by, and spoken to by, Judy Gibson (the representative for LBNA in this proceeding), Ms. Gibson received a communication from the spouse of Hark Savinsky late on November 30, 2023 to the effect that Mr. Savinsky had suffered a medical condition which resulted in him being hospitalized and likely to remain so for some further period of time.
7Mr. Savinsky filed an expert witness statement in the appeal proceeding and was to appear on behalf of LBNA.
8On December 1, 2023, Ms. Gibson sent a communication to the other Parties to advise of this circumstance and as Mr. Savinsky would not be available to appear as a witness on December 6th, requesting their consent to an adjournment of the proceeding to a date in January 2024.
9In response to that request, Ms. Gibson advises that she received on December 2nd a refusal to consent from the Applicant and no position from the City, with a suggestion from the City legal representative that the matter should be taken up with the Tribunal at the outset of the hearing scheduled for December 6th.
10On December 5th, Ms. Gibson filed with the Tribunal and served the other Parties with a formal Notice of Motion for Adjournment returnable on December 6th with a request for abridgement of the time for service of the Notice of Motion in light of the circumstances.
THE LEGISLATIVE AND POLICY FRAMEWORK
11Tribunal Rules of Practice and Procedure - Rule 17 re Motions and Rule 23 re Adjournments
12Rule 17.1 - No Motion, except a Motion brought under Rule 28, shall be heard later than 15 days before the Hearing, unless the TLAB orders otherwise (underlining added).
13Rule 23.3 - In deciding whether or not to grant a Motion for an adjournment, the Tribunal may, among other things, consider:
a. The reasons for an adjournment;
b. The interests of the Parties in having a full and fair Proceeding;
c. The integrity of the Tribunal's process;
d. The timeliness of an adjournment;
e. The position of the other Parties on the request;
f. Whether an adjournment will cause or contribute to any existing or potential harm or prejudice to others, including possible expense to other Parties;
g. The effect an adjournment may have on Parties, Participants or other Persons; and
h. The effect an adjournment may have on the ability of the Tribunal to conduct a proceeding in a just, timely and cost-effective manner.
SUMMARY OF EVIDENCE
14Ms. Gibson, as noted above, spoke to the Notice of Motion for Adjournment which she had filed.
15Ms. Gibson reviewed the background of the appeal and the importance of the evidence, which was to be spoken to by Mr. Savinsky. Though she was hopeful that Mr. Savinsky might be able to participate in a rescheduled hearing in January, she advised that she had a contingency arrangement with an alternate witness who was similarly credentialed as a forestry expert and would be able to speak to Mr. Savinsky's witness statement as it has been filed. She offered that she would see to it that this alternate witness would file an Acknowledgment of Expert's Duty with the Tribunal if it turned out that the alternate was to be the witness.
16Bearing in mind the very real issue of delay for the Applicant, she suggested three dates in January for the rescheduled hearing, January 10, 16 or 17. Ms. Gibson submitted that these were dates soon enough that they should not be considered as causing undue prejudice to the Applicant.
17Ms. Gibson underlined that the evidence of Mr. Savinsky was central to their case and being deprived of the ability to call it would be prejudicial and unfair to LBNA, especially in these circumstances where they had no ability to foresee or control the circumstances.
18Ms. Gibson crystallizes the position on behalf of LBNA as a party's right to present evidence in support of its position in an administrative proceeding being a matter of procedural fairness and natural justice. It is in the LBNA's interest that the hearing take place at a time the LBNA's Expert Witness can attend. In her view, this will allow the Tribunal to conduct the Proceeding in a just, timely and cost-effective manner.
19As noted above, the City took no position on the motion.
20Mr. Singh responded on behalf of the Applicant. He similarly reviewed the timeline of the application from its inception at the Committee of Adjustment to this date and advised that the delay has posed financial burden upon him which he believes to be unfair.
21Mr. Singh expressed his view that the location of the trees on the Property and their intended removal was a fact and that he had worked with the City to settle upon the current design. It is here to be noted that although the City was originally an Appellant against the approval decision of the Committee, at this stage the City has moved away from that position and now adopts a position of neutrality.
22Mr. Singh wished to proceed this day and if it was necessary to schedule a further day to hear Mr. Savinsky, he would accede to that. Of the three dates proffered by Ms. Gibson for an adjournment, he preferred January 10, 2023.
ISSUES AND ANALYSIS
23Having heard the background and reason for the late filing of the Notice of Motion for Adjournment, the Tribunal was satisfied that Ms. Gibson was caught entirely off guard by the news of Mr. Savinsky's health and that she acted with all due dispatch in communicating with the other Parties, attempting to secure their consent and when unable to do so, in putting together a comprehensive Notice of Motion and in serving and filing it promptly.
24On the basis of that background, and with the authority reserved to the Tribunal under Rule 17.1, the Tribunal determined to abridge the standard time for service of such Notice of Motion to the time within which it was served.
25In considering this Motion, the Tribunal has taken into consideration all of the matters enumerated under Rule 23.3 and treats the matter under clause b) of paramount importance, to ensure a full and fair proceeding.
26As was noted in the course of the session, the Tribunal is sensitive to the amount of time that the Applicant has invested in this process to date and that the Applicant bears certain costs with the running of time until the matter is disposed of, but the resultant prejudice to the Applicant from a further approximate month of waiting time, in this instance, is outweighed by the necessity to afford all Parties an opportunity to fully and fairly present their case.
CONCLUSION
27Consequently, as was pronounced orally at the conclusion of the session, in the interest of preserving the integrity of the Tribunal's process and ensuring a full and fair proceeding, the Tribunal will allow the LBNA Motion for Adjournment.
DECISION AND ORDER
28The Tribunal ORDERS THAT the LBNA Motion is allowed, and the requested adjournment is granted with the appeal hearing to be rescheduled to Wednesday, January 10, 2024, to be conducted electronically, commencing at 9:30 a.m.
29A fresh Notice of Hearing will issue from the Tribunal with the necessary link to the electronic hearing platform.
30There will be no further filings allowed (with the exception of the Acknowledgment of Expert's Duty as referenced in paragraph 15 above, should that contingency occur).
31The Tribunal will hear the Applicant's case first as this is a de novo proceeding.
32In response to the submission of Ms. Abimbola, legal representative for the City, although the City is now taking no position on the appeal and calling no evidence, as the City continues to be a Party and has requested an opportunity to express and explain its position, the City will be afforded an opportunity to make an opening statement for that purpose.
33And finally, the Tribunal directs the Parties to give consideration to refining their case presentations in order to focus on the material issues in this appeal and ensure the Tribunal's stated objective of a just, timely and cost-effective proceeding.
G. Swinkin
Panel Member