Toronto Local Appeal Body
40 Orchard View Blvd, Suite 211
Toronto, Ontario M4R 1B9
2023-02-28
21 132798 S45 01 TLAB
Nanu v. Sharma, 2023 ONTLAB 26
INTERIM DECISION AND ORDER- SHOW CAUSE NOTICE TO DISMISS THE APPLICATION WITHOUT A HEARING
Issuance Date:
February 28, 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):
nanu alexandru ion dragos
Applicant(s):
Peter vozikas
Property Address:
6 Benstrow Ave
COA File No.:
20 170209 WET 01 MV (A0274/20EYK)
TLAB Case File No.:
2021 132798 S45 01 TLAB
Hearing Date(s):
December 8, 2022
Decision Delivered By:
TLAB Panel Member S. Gopikrishna
REGISTERED PARTIES AND PARTICIPANTS:
People Type
Name
Representative
APPLICANT
P. vozikas
owner
S. BHARDWAJ and N. SHARMA
appellant
A. NANU
INTRODUCTION AND CONTEXT
1On February 13, 2023, the Toronto Local Appeal Body (TLAB) issued an Interim Decision respecting the Appeal for 6 Benstrow Avenue ( the “Site”), because the Applicant did not comply with instructions issued by the TLAB through the issuance of an earlier Interim Decision, dated December 12, 2023. In this Decision, the TLAB asked the Applicants to indicate the time-frame by when they could submit important documents, without which the Appeal cannot be heard. These documents included an updated Zoning Notice:
The new Zoning Notice obtained from the City of Toronto
Plans and Elevations reflecting the variances listed in the new Zoning Notice
Permit from the TRCA indicating their lack of objection to the Applicant’s proposal, based on the new Plans and Elevations
It is also to be noted that the Permit originally issued by the Toronto Regional Conservative Authority (TRCA ) for this Site, dated April 17, 2019, expired in 2021. The TLAB does not have the jurisdiction to determine the impact of a newly proposed house on environmentally sensitive lands, reflecting updated variances, and a new design put forward by the Applicants.
2The Decision issued on February 13, 2023, stated very clearly that the TLAB has the jurisdiction to issue a “Show Cause” Notice to the Applicants, in cases where the Applicants does not respond to instructions from the Tribunal, including submission of documents germane to completion of the Proceeding.
3In response to the Interim Decision dated February 13, 2023, the Agent for the Applicant, Peter Vozikas, responded to the TLAB on February 14, 2023, by way of an email, whose contents are reproduced below:
Please note that I have tried to reach out to the owner's numerous times regarding this matter by way of email and telephone. On one verbal conversation with the owner, I was told by the owner he would contact me back to confirm these payments and has since not done so.
Since the beginning of January when I first reached out to the owner's, I have not received.
I explained to the owner's that there will be associated fees involved, those being:
Surveyor fee for revised site plan
City of Toronto fee for a new Zoning review
TRCA fee for a new permit application
I have yet to receive any funds in order to process to the surveyor nor the new Zoning Review Application. Waiting to hear back from the owners.
On another note, I will be commencing vacation as of the 16th to the 28th of this month. Therefore, the onus will be on the owners to provide payment to the surveyor directly. As for the application for a revised Zoning review, I can file that today, but payment will be up to the owner to provide.
As for review time frames, that will be up to the City and their current review times.
4On February 16, 2023, the TLAB received an email from Neena Sharma, one of the Applicants and Owners of the Site, which is reproduced on the next page:
Hello TLAB, I got your email and found that you are asking me to pay again for all surveys and cities fees for updates, but I want to ask the TLAB about the application which have been submitted in 2019 and now it’s is 2023 and there is no hope for permit after all TLAB is asking me to Pay all the fees again which is totally unacceptable because all the delay have had from the TLAB and they are the responsible to pay my upcoming renewal expenditures. Please give me Justice I am not in the state to pay all the fees again. It is TLAB fault and they are liable to pay for delays. I need Justice please care about my request.
With Regards,
Sr. S. Gopikrishna
5It is important to note that on February 23, 2023, the TLAB received two (2) emails from Neena Sharma, with contents identical to the email referred to in (4) above.
ISSUES AND ANALYSIS
6In response to the TLAB’s request for information about the filing of the documents, listed in Paragraph (1) in this Decision, there was no response from the Applicant. Based on the Agent’s email , dated February 14, 2023, and reproduced earlier in this Decision, I understand the specific predicament faced by him because he received neither payments, nor instructions from the Applicant about how to proceed, after he updated the Applicants about the direction from the TLAB, regarding submission of documents discussed in the Decision dated December 12, 2022.
I therefore understand why the Agent for the Applicant could not proceed with the requested update from the TLAB, with reference to next steps
7The Applicant, on the other hand, has sent three different emails to the TLAB, alleging that the TLAB” asks” them ( i.e. the Applicants) to “pay all the fees” again. The emails complain about “all the delay have had from the TLAB”, claim that it is “TLAB fault”, before concluding that the TLAB is “responsible to pay my upcoming renewal expenditures”. The Applicant then declares that they are not in the “not in the state to pay all the fees again”.
8Prima facie, I cannot understand the Applicant’s response beginning with the claim that the matter has been before the TLAB since 2019., because the COA heard the case on March 9, 2021 and the Notice of Appeal was received by the TLAB only on May 7, 2021- in other words, the TLAB’s responsibilities regarding this Appeal commenced only in May 2021, and not 2019, as alleged. The first Hearing was held on November 18, 2021, and the Applicant did not follow through on any instructions till April 2022, behaviour that I found so concerning that I had to convene a Hearing just to understand why the Applicant had not followed through on the Order. As subsequent Decisions issued by the TLAB in 2021 and 2022 with respect to this Appeal demonstrate , the sixteen month time lapse between the commencement of the Hearings in 2021, and the last Decision sent out on February 13, 2022, is the result of the Applicant’s not submitting documents, because of ongoing, and unfinished Settlement discussions with the Appellant, as stated at various Hearings- these Interim Decisions demonstrate that any adjournment granted by the TLAB was done so with the explicit consent of the Applicant, if not their request. Consequently, it is difficult to understand why the Applicants want to blame the TLAB for “delays”.
9In any Appeal, the TLAB asks for the submission of various documents, because the Proceeding cannot be completed without access to these documents- the TLAB’s intention in having the Applicants produce these documents, is distinguishably different from “asking the( Applicants) to pay the fees all over again”, as the Applicants allege. Should the documents in question not be produced ( a decision that is the Applicant’s prerogative), the TLAB will have to consider dismissing the Application for lack of fulsome disclosure, and the consequent challenges of completing the Proceeding.
10At the risk of belabouring the point, it is imperative to note that the TLAB’s Rules of Practice and Procedure ( the “Rules”) enable the Tribunal to ask Parties for production of important documents, as and when necessary. In this case, it is important to note that the TLAB has not been able to obtain any meaningful documentation, including at the very minimum, an updated list of variances, accompanied by pertinent Plans and Elevations, reflecting the latest changes to the design. It may be emphasized that despite numerous requests from the TLAB, none of the aforementioned documents have been submitted, without which it is impossible to hear evidence regarding the Appeal, much less make a Decision.
11The TLAB is not responsible, nor liable for the Applicants’ expenses at any stage. The TLAB notes the Applicants’ declaration that they are in no financial “state” to make the requisite payments to get an updated TRCA permit, and advises them that the Applicant’s financial wherewithal for decision making purposes, including production of documents, cannot be taken into account for decision making purposes. I find the response from the Applicants, where they ask the TLAB to pay for their expenses to be inappropriate, even if stated only for rhetorical purposes, or to express their frustration.
12Under the circumstances, it becomes important to reiterate that the TLAB cannot continue to hold a file open on an indefinite basis. Should the Tribunal reckon that an Appeal cannot proceed to a Hearing, it becomes important to ask the Applicants to explain why the Application should not be dismissed, without a Hearing. As stated earlier, a Show Cause Hearing to Dismiss the Application without a Hearing (“Show Cause Hearing”) will be held to make a finding on this matter.
13At this Show Cause Hearing, the Applicants will have to explain the rationale for the TLAB‘s allowing for the continuation of this Appeal, notwithstanding the lack of any significant progress since September 2021.
14The TLAB Staff will contact the Parties to identify a date in late March 2023 or early April 2023 to complete the Show Cause Hearing. No action is required of the Applicants, or the Appellants at this stage, other than responding to the email from the TLAB about their availability in late March 2023, or early April 2023. The Applicants need to understand that not participating in the Show Cause Hearing, may result in their Application being dismissed, which means that they cannot build any addition to the existing house at the Site.
INTERIM DECISION AND ORDER -SHOW CAUSE NOTICE TO DISMISS THE APPLICATION WITHOUT A HEARING
15The TLAB herewith issues a “Show Cause Notice to Dismiss the Application without a Hearing” in the Appeal respecting 6 Benstrow. The Applicants are herewith informed that if they don’t attend the Hearing, or cannot provide any convincing reason to the TLAB to continue with the Proceeding, , at the Hearing in question, the TLAB can dismiss the Application, without a Hearing.
16The Show Cause Hearing will be scheduled in late March 2023, or early April 2023, based on the availability of the Parties. The TLAB staff are directed to contact the Parties to identify dates on which they are available in late March, or early April 2023, to schedule the “Show Cause” Hearing..
17The Parties are given time till the end of day on March 7, 2023 (Tuesday) to indicate its availability in the last week of March 2023 ( starting March 20, 2023) and any working day in April 2023, ending with April 14, 2023- one of these dates will be chosen by the TLAB to hear the matter. Should responses be not received from any, or both of the Parties by the above deadline, the TLAB will identify a date, and issue a Hearing Notice, based on such information that it is aware off regarding scheduling.
So orders the Toronto Local Appeal Body
S. Gopikrishna
Panel Member