Mathur v. Allison, 2023 ONTLAB 50

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9

Date: 2023-03-21

21 162991 S45 13 TLAB

Mathur v. Allison, 2023 ONTLAB 50

MOTION DECISION AND ORDER

Issuance Date: March 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): GARY ROXBOROUGH

Applicant(s): LATTAG STUDIO INCORPORATED

Property Address: 255 SEATON STREET

COA File No.: 20 234883 STE 13 MV (A1216/20TEY)

TLAB Case File No.: 21 162991 S45 13 TLAB

Hearing Date(s): September 3, 2021, October 6, 2021, November 2, 2021, January 25, 2022, February 15, 2022, May 16, 2022, September 12, 2022

Decision Delivered By: TLAB Chair D. Lombardi

REGISTERED PARTIES AND PARTICIPANTS:

People Type

Name

Representative

Appellant

Gary Roxborough

Jordan Allison

Applicant

Lattag Studio Incororated

Party (TLAB)

Shobhit Mathur

Samantha Lampert

Party (TLAB)

Cabbagetown South Residents Association

Party (TLAB)

Tanya English

Party (TLAB)

Howard Bortenstein

Party (TLAB)

Brendan Michael Hamilton

Party (TLAB)

Wallace Immen

Party (TLAB)

Gale Moore

Participant

Jeff Lookkong

INTRODUCTION AND CONTEXT

1This is a Motion for costs arising from a Toronto Local Appeal Body (TLAB) Decision (Decision) dated November 22, 2023, denying an appeal by Gary Roxborough (Appellant). The Appellant had appealed a City of Toronto (City) Committee of Adjustment (COA) decision allowing variances requested applicable to 255 Seaton Street (subject property).

2Shobhit Mathur (Owner), the owner of the subject property, sought 8 variances from the City’s harmonized Zoning By-law 569-2013 to permit the alteration of the existing two-storey, semi-detached residential dwelling by constructing a third-storey addition, a rear third-storey balcony, a rear deck, a front porch, a front porch walkout, and a secondary suite in the basement (Application).

3The hearing of the appeal before the TLAB commenced in September 2021 and consumed a total of seven (7) full Hearing days – September 3, 2021; October 6, 2021; November 2, 2021; January 25, 2022; February 15, 2022; March 16, 2022; and, September 12, 2022.

4The proceedings also required three (3) ‘virtual’ Teleconferences, on March 15, 2022, June 3, 2022, and October 17, 2022. These Teleconferences were required to deal primarily with issues related to scheduling conflicts and the availability of some of the Parties resulting in difficulties in scheduling additional Hearing days throughout the summer of 2022.

5Mr. Mathur was represented by legal counsel, Samantha Lampert (Davies Howe LLP), and retained expert planning witness Nicholas Bogaert (MHBC Planning).

6The Appellant, Mr. Roxborough, was represented by Jordan Allison, a neighbour and also a Party in the matter. The following residents elected Party status in opposition to the Application: Tanya English; Karen Marren (Cabbagetown South Residents’ Association); Howard Bortenstein; Dr. Gail Moore; Brendan Hamilton; and, Wallace Immen.

7The only resident to elect Participant status was Jeff Lookong, who attended some but not all of the proceedings.

BACKGROUND

8On December 21, 2022, Mr. Mathur filed a Notice of Motion (Motion) for costs with the TLAB, to recover additional legal and other expenses incurred as a result of Mr. Allison’s conduct.

9Mr. Mathur’s submission included the requisite Notice of Motion Form 7 and an associated affidavit (Form 10). He also filed extensive documentation with the Motion including several of the sixteen (16) Exhibits entered into the record during the appeal proceedings in addition to emails attributed to Mr. Allison sent to the Applicant’s architect, and comments regarding the Application attributed to Mr. Allison on social media.

10Mr. Mathiur also included a series of invoices that reflect the additional legal and other costs that he argues has had to incur in support of the amount he is seeking in his Motion for costs.

11The TLAB provided a Written Motion Hearing date of January 10, 2023, to hear the matter. Mr. Mathur was also provided with due dates for a Notice of Response to Motion (Form 8) and Notice of Reply to Response to Motion (Form 9) and was directed by TLAB staff to advise the Parties accordingly, as required by the TLAB’s Rules of Practice and Procedure (Rules).

12He eventually did so on December 28, 2022.

13In an email to the TLAB dated January 4, 2023, Jordan Allison, a Party, raised several administrative issues concerning the service and filing of Mr. Mathur’s Motion.

14More specifically, Mr. Allison’s administrative issues with the Motion included the following:

• Sections in Part 1 of Mr. Mathur’s Notice of Motion were left blank and he failed to provide a Written Motion Hearing date and serve the Parties served accordingly. Mr. Allison asserted that he and the other Parties only became aware of the Motion date (January 10, 2023) six days before the Hearing contrary to Rules 17.4 to 17.6 of the TLAB’s Rules.
• Failing to serve Form 7 and supporting materials on the Appellant, Mr. Roxborough.
• Confusion as to whether Mr. Mathur expected Mr. Allison to notify Mr. Roxborough of the Notice of Motion, as his representative.
• Clarification as to whether Ms. Lampert continues to be his legal representative in the Motion matter or if there has been a change in representation.

15He also submitted that the Motion “…presented an unfair bias towards myself and other parties that participated in the Appeal that ended with a Decision and Order issued on November 22, 2022.”

16Mr. Allison asked that the TLAB find Mr. Mathur’s Motion “vexatious” (his term) and not filed correctly and that it violated the TLAB’s Rules and should proceed.

17Following his request of the TLAB to not proceed with the Motion, Mr. Allison did file a Notice of Response (Response) to Mr. Mathur’s Motion filing on January 7, 2023, with service to Mr. Mathur as required by Rule 17.9 of the TLAB’s Rules.

18I reviewed both Mr. Mathur’s Motion materials and whether the filing was compliant with the requirements pursuant to the TLAB’s Rules.

19Following this review, I concluded that issues had arisen with the processing and administrative screening of the Notice of Motion and supporting materials by TLAB staff. I was also advised by TLAB staff that Mr. Mathur had made technical errors in completing and filing his Motion.

20Given the administrative nature of these issues, and in consideration of the potential corresponding impacts on the Parties of responding to a technically flawed Motion filing, I determined that the most reasonable approach would be for the TLAB to reschedule the Motion matter to allow Mr. Mathur with an opportunity to perfect his Form 8.

21This resulted in the TLAB issuing a new Written Motion Hearing date with corresponding revised submission due dates for a Notice of Response and Reply to Response to Motion.

22Mr. Mathur was also directed to confirm whether Ms. Lampert continued to be his legal representative in the Motion matter.

23TLAB set February 28, 2023, as the new date for the Written Motion Hearing with a due date for Form 8 on February 22, 2023, and Form 9 on February 27, 2023; Mr. Mathur confirmed that Ms. Lampert was not his legal representative in the Motion.

24On February 14, 2023, Mr. Mathur filed a new Notice of Motion with the TLAB and, in turn, Mr. Allison filed a new Notice of Response to Motion (Response) on February 23, 2023. A Reply to Response to Motion (Reply) was submitted on February 27th.

25These documents, then, constitute the filings that are relevant to the Motion for costs matter before the TLAB and they are the basis upon which I will consider the Motion request.

26For the record, the TLAB received Notices of Response to Motion and requisite supporting affidavits from Parties English, Moore and Immen, who opposed the Application and now oppose Mr. Mathur’s request for an Order for costs against Mr. Allison. TLAB staff accepted these filings stamping them as ‘Late’, as is the Tribunal’s protocol and uploaded the documents to the Application Information Centre (AIC) website.

27I note that Mr. Mathur’s Motion specifically seeks an Order from the TLAB to recover costs incurred by the Applicant as a result of Mr. Allison’s conduct during the proceedings. His request does not seek costs from any of Party in the appeal matter.

28Therefore, while I have read the Notices of Response to Motion filed by each of the Parties cited above, and I confirm that they challenging the costs award arguments in Mr. Mathur’s Motion, I will rely solely on the following documents in making my decision:

1. Mr. Mathur’s Motion for Costs, received February 14, 2023;
2. Mr. Allison’s Notice of Response to Motion, received February 23, 2023; and
3. Mr. Mathur’s Notice of Reply to Response to Motion, received February 27, 2023

THE LEGISLATIVE AND POLICY FRAMEWORK

29The TLAB has the authority to order costs subject to its Rules of Practice and Procedure as set out in Rule 28, below. Rule 2.2 also permits the TLAB to liberally interpret its Rules to “…secure the just, most expeditious, and cost-effective determination of every Proceeding on its merits.”

MATTERS IN ISSUE

30The threshold question for an award for costs that the TLAB must consider then, is whether the Party against whom the costs are claimed, in this case Mr. Allison, engaged in conduct, or a course of conduct, which the TLAB finds is “unreasonable, frivolous, vexatious or in bad faith.”

EVIDENCE, ISSUES, AND ANALYSIS

31It is the position of the Owner, Mr. Mathur, as set out in the Notice of Motion and corresponding affidavit, that Party Jordan Allison fell afoul of four of the enumerated considerations for a costs award outlined in Rule 28.6 of the TLAB’s Rules, specifically that Mr. Allison:

• 28.6 b) - introduced an issue not previously disclosed;

• 28.6 c) - failed to act in a timely manner;

• 28.6 d) - failed to comply with the TLAB’s Rules; and

• 28.6 f) - acted in a manner that the TLAB determined to be improper.

32Mr. Mathur asserts that this conduct crosses the threshold established by Rule 28.7 which requires that the Party against whom costs are claimed has engaged in conduct, or a course of conduct, which is unreasonable, frivolous, vexatious or in bad faith, and warrants an award of costs.

33The Owner is seeking a costs award in the aggregate amount of $72, 532.22. The components of this request are generally outlined in Mr. Mathur’s Affidavit (Form 10) dated December 21, 2022, and the Invoices attached to that document as Exhibit A:

• Planner’s fee - $23,203.01 including HST; and,

• Lawyer’s fees (partial) - $49,329.21 including HST;

34Before turning to the substance of the cost request, I will start by examining two TLAB cost decisions that Mr. Mathur highlighted in his Motion.

35In her cost decision for 116 Armour Boulevard, TLAB Member Shaheynoor Talukder wrote:

“TLAB rarely awards costs. One main reason of TLAB’s reluctance to awarding (sic) costs is to avoid deterring the public from participating in the Hearing process. As an administrative tribunal, the TLAB has a duty to ensure access to justice to all members of the public, whether they are self-represented parties, parties represented by counsel, or attending the Hearing as a participant. This approach to facilitate access to justice is clearly outlined in Rule 28.6.

“The TLAB’s discretion to award costs is subject to the threshold requirement relating to costs set out in Rule 28.7, which is that the Party against whom costs are claimed must have engaged in conduct or a course of conduct which is unreasonable, frivolous, vexatious or in bad faith. A reasonable conclusion that can be derived from Rule 28.7 is that costs can be awarded to deter parties from acting in a manner that is unreasonable, frivolous, vexatious or in bad faith.”¹

36Similarly, in a costs award decision for 15 Nelles Avenue issued by the TLAB, Member Makuch in referring to Rule 28.6, states that the TLAB has “a “commitment” not to award costs… if such an award would deter others from undertaking or continuing in an appeal.”

37He also recognized that “a decision not to award costs can deter parties from appealing or defending an appeal depending on the circumstances,” but underscores the importance of a “case-by-case costs analysis.”

38In the above decisions, both Members Makuch and Talukder underscore that the TLAB’s central commitment as an administrative tribunal is to not deter Parties from contemplating becoming a Party or continuing to be a Party to a proceeding. (my emphasis)

39In doing so, they also note that Rule 28.6 must be considered within the context of the overarching Rule 2.2, which directs TLAB Members to adjudicate matters in a just, expeditious and cost-effective manner.

40Referencing Member Makuch’s 15 Nelles Avenue decision, Mr. Mathur highlights the following statement made by the Member in that decision,“…the equality of bargaining power between parties is a consideration in a cost award.”²

41Mr. Mathur then compares that statement with what Member Talukdar (sic) wrote in her decision for 116 Armour Blvd. (TLAB Case File No. 19 202073 S45 06 TLAB):

“as a person with less bargaining power can still conduct themselves in a manner which is unreasonable, frivolous, vexatious or in bad faith to trigger a cost award. Each motion for cost award is very much factually based and requires an in-depth analysis of the conduct of the party against whom the costs (sic) is claimed (as per Rule 28.7).”³

FINDINGS AND REASONS

1. Introduced an Issue not Previously Disclosed

42Mr. Mathur asserts that Mr. Allison introduced “…a 150-page PowerPoint slide deck presentation on the first day (January 25, 2022) of the oral testimony at the TLAB” and that he violated the TLAB’s Rules (Rule 16) by not disclosing this presentation to the TLAB or the other Parties prior to his oral testimony.

43Furthermore, Mr, Mathur submits that this presentation included additional, new information that he characterizes as ‘improper disclosure’, asserting that this afforded Mr. Allison a ‘procedural advantage’ in the proceedings.

44He also contends that on multiple occasions throughout Mr. Allison's oral testimony on January 25th, “…new information was presented” (para. 10, Motion for Costs), and that on the same day, he referenced “…figure ground maps that were included as part of the PowerPoint.”⁴

45Mr.Mathur contends this necessitated his solicitor to expend additional legal time to review the new information at his expense.

46As above noted, the appeal proceeding for the subject property involved eleven (11) neighbours who elected Party status, and a Participant, Jeff Lookong, all of whom attended every Hearing day as well as the scheduled Teleconferences.

47In support of his Application, Mr. Mathur retained counsel, Samantha Lampert, and an expert land use planning witness, Nicholas Bogaert.

48Each Party filed the requisite forms and documents supporting their positions, including individual witness statements and associated studies and photographic evidence, which resulted in hundreds of pages of submissions. As mentioned above, the proceedings consumed multiple Hearing days from September 2021 to September 2022.

49The Parties in this matter also filed extensive supporting documentation and several exhibits which were entered into the record which assisted the Tribunal in understanding the issues in dispute which, along with the testimony and evidence heard, to issue a final Decision and Order on November 22, 2022.

50The amount of evidence and issues raised during the course of the seven Hearing days did at times result in the Panel Chair making rulings on the admission of certain evidence that Mr. Mathur’s solicitor submitted was not properly disclosed.

51Those rulings were neither unprecedented nor extensive, were issued promptly during the Hearing and limited what could be introduced as evidence and any leniency by the TLAB was afforded to all Parties on a case-by-case basis.

52Any such documents admitted into the record or references of facts by Parties permitted by the Panel Chair were to evidence already sourced in pre-filed materials or testimony offered by the Parties during the proceedings.

53Furthermore, any evidence questioned as being ‘new’ or ‘additional’ was first thoroughly vetted and if determined to be germane to the proceedings, its admission was permitted on consent, if considered useful in clarifying certain important details in testimony.

54Parties were permitted to object to the introduction of evidence and to raise any concerns if procedural fairness was violated thereby assuring the Parties no new information would be permitted garnering a Party a procedural advantage in the proceedings.

55At paragraph 11⁵ of his Motion, Mr. Mathur highlights an exchange I had with Mr. Allison regarding a PowerPoint presentation introduced by Mr. Allison and ‘figure ground maps’ embedded in that presentation, which he asserts is an example of ‘new’ evidence that Mr. Allison attempted to introduce to support his testimony:

Chair Lombardi questions Mr. Allison: “…was this part of your disclosure document, this illustration?”

Mr. Allison responds: “the compelling (sic) of information was not, no.”

Chair Lombardi: “we are going to have to move on from this document…this is the first time I’m seeing it, this is the first time the applicant is seeing it…”

56What the above-cited passage of transcript from the proceedings illustrates is that the PowerPoint presentation, which consisted of some 150 pages, represented an attempt by Mr. Allison, admittedly, to format his evidence and testimony at the Hearing through the use of a visual format but included evidence that Mr. Allison had previously filed and served on all the Parties.

57Nevertheless, when Mr. Allison’s testimony veered towards information that I concluded may not have been previously disclosed and/or there was an objection by Ms. Lampert, I immediately stopped Mr. Allison and that evidence was disallowed. Mr. Mathur confirms this fact in the exchange highlighted above.

58The issue of new filings is not an unprecedented practice and was not isolated to any one Party in this matter. And, while the TLAB discourages late filing and disclosure, and has instituted a Practice Direction (No. 7) to address such occurrences, it does happen from time to time in Hearing matters before the TLAB.

59In those instances, the Practice Direction provides the presiding Member with the discretion to admit or refuse to admit late disclosure and whether to admit late filings into the record.

60I am unconvinced that the matters raised by Mr. Mathur in this regard with Mr. Allison’s conduct were significant or impactful to the proceedings, or that this would have resulted in additional legal costs being incurred by the Owner.

61Regarding the chain of emails referred to by Mr. Mathur in paragraphs 28 to 31 in his Motion, I allowed that information to be introduced without objection from Ms. Lampert. The emails assisted the TLAB in clarifying the City staff’s position on the heritage status of the subject property as it related to the pending HCD Plan and the understanding of that position.

62This is confirmed in the transcript portion of Hearing Day 3 highlighted by Mr. Allison in his Notice of Response to Motion (dated February 23, 2023) that follows:

In the Hearing on February 15, 2022 (4:19:26) Chair Lombardi states:

Quiet (sic) frankly, I don’t see any issue with the commentary. It really reflects the area of cross-examination that we’ve just gone through with Ms. Lampert. But I’m going to ask Ms. Lampert whether she objects to including this series of emails in the disclosure and the record for this appeal. Again, understanding that there was also an email from Mr. Allison on January 25th that prompted the responses from Ms. MacDonald, which, again, I am assuming would be included in this disclosure. Ms. Lampert, do you have any problems with this documents being filed?

Ms Lampert replied:

Sir, as I said at the beginning, I don’t think that anything in the letter is controversial, so I’m okay...I was more concerned with the process, but I think you’re right...given my recent cross-examination, it’s fine to go in from my perspective.”⁶

2. Failure to Act in a Timely Manner

63Mr. Mathur asserts that Mr. Allison was unreasonable in his oral testimony during the time he provided evidence to the TLAB and that he failed to act in a timely manner. More specifically, Mr. Mathur argues that Mr. Allison’s evidence and oral testimony were centred around heritage issues or an architectural analysis of the subject property “…which were out of (sic) scope for this Hearing.”⁷

64Further, he submits that Mr. Allison’s testimony “…fell across three Hearing days over several months…,”⁸ which Mr. Mathur contends resulted in significant time and costs to the applicant that are unjust to bear. I disagree.

65First, Mr. Mathur is incorrect in his assertion as to the time consumed by Mr. Allison’s oral testimony during the proceedings. Mr. Allison’s testimony commenced in the late morning of Hearing Day 2 on January 25, 2022, and ended midway through Hearing Day 3 (February 15, 2022).

66His continuance as a witness resulted from extensive cross-examination by the Appellant’s solicitor, Ms. Lampert, and his cross-examination concluded on the same day.

67Second, Mr. Allison remained as a witness and was cross-examined by Party Bortenstein at the commencement of Hearing Day 4 on May 16, 2022, but that questioning was brief. Therefore, although Mr. Allison’s participation as a witness before the TLAB did fall over three Hearing days, a significant part of that included comprehensive cross-examination primarily by Ms. Lampert but also by Mr. Bortenstein.

68I do acknowledge that Mr. Allison’s oral testimony and evidence were particularly focused primarily through the lens of the subject property’s heritage significance. In my opinion, this was to be expected given that he is a member of the HCD Advisory Committee and the Cabbagetown South Residents’ Association and his witness statement spoke to the issue of heritage.

69However, this perspective and his concerns regarding the loss of a significant cultural resource if the Application were approved, were shared by all the other Parties in this matter who passionately expressed similar concerns regarding Mr. Mathur’s proposal.

70At the time of the filing of this appeal, the subject property was within the Cabbagetown Southwest Heritage Conservation District (HCD) study area although as Mr. Mathur established in his Motion, “…a plan had not been prepared or adopted and therefore had no status.”⁹

71However, Mr. Mathur’s assertion in his Motion that “heritage was not relevant for the Hearing” is to some degree disingenuous. The issue of heritage was raised by the Parties in all the pre-filed materials in this matter. The fact that it would likely be raised during the proceedings and form part of the opposition’s arguments regarding the proposal for the subject property should not have been a surprise to Mr. Mathur or his solicitor.

72And, although Mr. Mathur is correct that I was required to intervene from time to time during Mr. Allison’s oral testimony to refocus his evidence on the statutory planning tests, I do not find that this resulted in or contributed to any measurable prolongation of the proceedings.

73I also do not agree with Mr. Mathur that Mr. Allison “failed to act in a timely manner” nor that his actions resulted in any significant Hearing time that would have contributed to the substantial additional costs as submitted by Mr. Mathur.

3. Failed to Comply with the TLAB’s Rules

74Mr. Mathur submits that Mr. Allison attempted to summon two witnesses to appear before the TLAB “…in the middle of the Hearing after mediation had concluded”¹⁰ The TLAB-led mediation session he references occurred on October 6, 2021, and concluded with no settlement of the issues in dispute.

75Mr. Mathur asserts that Mr. Allison used the failure of this mediation “…as a pretense for procedural advantage” and that by attempting to summons new witnesses, Mr. Allison forced Mr. Mathur to incur additional “unjust costs” (his term) for which he should not be responsible.

76Mr. Mathur correctly notes in his Motion that attempting to summon witnesses after a Hearing has commenced does not comply with Rule 25.4 of the TLAB’s Rules”

“a summons shall be Served on the witness by personal Service no later than 30 Days before the time for attendance, unless the TLAB directs otherwise.” (his emphasis)

77However, on October 25, 2021, the TLAB refused both Requests to Summons submitted by Mr. Allison, and I find no evidence that Mr. Mathur or his solicitor were required to respond or prepare for these witnesses as the TLAB refused those requests and they did not appear before the TLAB.

4. Asked Questions or Acted in a manner that the TLAB determined to be Improper

78Mr. Mathur asserts that Mr. Allison attempted to gain procedural advantages in the proceedings “…beyond the threshold of what a reasonable person would do and is vexatious and in bad faith.”¹¹ He submits that Mr. Allison did so by questioning the appropriateness of the submission by Ms. Lampert of ‘new’ case law in her Closing Statement following the conclusion of the proceedings.

79In turn, Mr. Allison asserts that Ms. Lampert’s actions violated the TLAB’s Rules regarding evidence and document disclosure.

80Due to the number of Hearing Days in this matter, the Panel Chair directed the Parties to provide abbreviated oral closing statements and to submit more detailed written statements after the proceedings had ended.

81Mr. Mathur argues that Mr. Allison’s objections in this regard represent an effort by him to both manipulate the process and prolong the hearing of this application.

82Let me deal with each of Mr. Mathur’s assertions separately below.

1. Submission of Additional Case Law by Ms. Lampert

83Given the number of Parties in this matter and in consideration of the length of time to hear all the evidence, the Panel Chair directed the Parties to file written ‘Closing Statements’, with certain restrictions, after the completion of the last Hearing day.

84These were due on September 21, 2022, with the Applicant’s reply to the closing submissions due on September 28, 2022.

85In his Motion, Mr. Mathur asserts the following:

“On October 9, 2022, Mr. Allison accused Ms. Lampert of submitting additional documents in her closing submissions and reply to closing submissions, including nine “new” case law studies that were not previously disclosed in time for parties to respond.” He further notes that “Mr. Allison requested that (sic) TLAB determine whether it was appropriate to allow these case law studies to be included with the applicant’s closing statements.”

86Before the Panel Chair had an opportunity to provide direction on this issue, Ms. Lampert responded in writing to the TLAB and the Parties to defend why the submission of case law studies was appropriate to support her oral closing remarks.

87The result was a lengthy chain of emails between the two Parties including a corresponding written response from Mr. Allison who expressed his surprise at the submission of new case law. He stated that he had withheld the inclusion of case law in support of his own closing arguments “…since they were not previously disclosed to other parties.”¹²

88Mr. Allison stated that he was a “lay individual…who was not privy to “undisclosed typical practices” that are part of TLAB’s practices,” and requested that “…the presiding Member disregard or give less weight to the case law provided by the applicant given it was not previously disclosed.”¹³

89Because of this troubling ‘back and forth’ communication between the Parties after the completion of the appeal Hearing, I directed TLAB staff to expeditiously schedule a ‘virtual’ Teleconference to address the matter. The Teleconference took place on October 17, 2022, and all the Parties attended.

90In his Motion, Mr. Mathur argues that the fact that the presiding Member was required to arrange a Teleconference in response to Mr. Allison’s “alleged lack of knowledge about Tribunal practices“ should not excuse his behaviour and that this “…added to the time and legal costs of the applicant.”¹⁴

91During that Teleconference, I expressed my disappointment with the actions of Ms. Lampert and Mr. Allison. I reminded the Parties that the TLAB attempts to hear from all who attend Hearings and that the TLAB’s Rules provide each with an opportunity for a closing statement. I also expressed my disappointment in what I characterized as the argumentative and antagonistic behaviour of the Parties, even after a rather lengthy Hearing process.

92I advised that this judicial protocol is not meant to be an iterative and ongoing argument, back and forth ‘ad nauseum’ amongst opposing Parties. I directed that the Parties have no more communications amongst themselves through the TLAB regarding the appeal.

93I concluded the Teleconference by ruling that the submission of a Book of Authorities by Ms. Lampert is a common practice accepted by tribunals such as the TLAB and that the case law studies in question would be permitted.

94I also admonished Ms. Lampert for submitting an additional 65 pages of case law in the Notice of Reply to Response to Mr. Allison’s concerns and Mr. Allison for his responses.

2. Mr. Allison Acted Improperly while under Oath

95Mr. Mathur submits that Mr. Allison reached out to City Heritage Preservation staff in an attempt to augment his evidence and oral testimony while under oath after being advised by the presiding Member to avoid discussing matters of the Hearing with others.

96Mr. Mathur argues that this violates the TLAB’s Rules related to disclosure and also lengthened the proceedings resulting in an unfair procedural advantage for Mr. Allison.

97In support, Mr. Mathur refers to an email chain between Mr. Allison and Ms. Mary McDonald, Manager of Heritage Preservation Services, identified as Exhibit 7 in the proceedings. Mr. Allison requested that this document be submitted into evidence during Hearing Day 2.

98Mr. Mathur also references a set of photos of the subject property and evidence submitted as part of Mr. Allison’s document disclosure that Mr. Mathur asserts was posted on the Cabbagetown HCD Instragram account by Mr. Allison.

99I will refrain from dealing with email communications related to Ms. McDonald, as I have already done so above.

100As to the allegations of the posting of evidence online, I accept Mr. Allison’s explanation in his Notice of Response to Motion that the information identified by Mr. Mathur was in fact shared by the HCD Advisory Committee and, therefore, was public information.

101I also accept Mr. Allison’s submission that the photos shared by the HCD Advisory Committee on their Instagram account were provided to them by Mr. Roxborough before the TLAB appeal to assist residents in determining whether the subject property warranted advocation for protection and was not prejudicial.

102While I agree with Mr. Mathur, as expressed in his Motion, that the TLAB’s Rules regarding evidence and document disclosure have been put in place to avoid ‘trial by ambush’, I do not agree with his contention that “…this was a common occurrence throughout this Hearing as a direct result of Mr. Allison’s conduct…and a pattern of behaviour.”¹⁵

103In the end, I do not find this to be a violation of procedural fairness or natural justice or to have impacted the proceedings or my decision in the appeal matter.

CONCLUSION

104The appeal proceeding in this matter was undoubtedly a contested and adversarial appeal, which is common in appeals before the TLAB when neighbours oppose an application that seeks variances from the established zoning by-law.

105. There were several Parties in opposition, the Applicant sought the approval of eight variances, and the opposing Parties to this Application introduced the issue of heritage to the requisite planning issues such as massing, scale, density, neighbourhood character and ‘fit’.

106The Parties did attempt to settle the issues in dispute early in the Hearing process through TLAB-led mediation but without success.

107At the outset of adjudicating this matter, it became clear to me that heritage would be a point of contention and debate, which I’ve found can be both emotional and contentious in an appeal before the TLAB.

108The opposing Parties highlighted heritage as an important consideration in their evidence and testimony, and they were extremely passionate and forthright in their concerns about the heritage character of their immediate neighbourhood.

109They also expressed these concerns ardently throughout the proceedings, expressing similar concerns to those of Mr. Allison’s testimony and evidence as to how the proposal before the TLAB would adversely impact that character.

110And, although Mr. Allison seemed to have been informally designated as the lead in expressing these concerns and spoke on behalf of the Appellant, Mr. Roxborough, as his representative, the other Parties were similarly fervent in their opinions opposing the proposed alterations to the subject property.

111As a result, the Panel Chair found it necessary to intervene at certain points during the Hearings to clarify the TLAB’s jurisdiction in the matter and to refocus the evidence and testimony of the opposing Parties, particularly that of Mr. Allison.

112But, while I agree with Mr. Mathur that it is important to acknowledge that an appeal before the TLAB has significant consequences for a property owner, I am not prepared to conclude on the basis of Mr. Mathur’s arguments that Mr. Allison engaged in a course of conduct that was unreasonable, frivolous, vexatious and/or in bad faith, and that it surpasses the threshold established in Rule 28.6 of the TLAB’s Rules.

113I am reminded of a Motion for Costs Decision and Order, TLAB Case No. 19 114668 (362 Rustic Ave.) dated January 13, 2020, in which I wrote the following:

“…I must consider the criteria set out in Rule 28.6 to determine whether costs should be awarded in this matter. However, I note that I am restricted by Rule 28.7, which clearly states that I shall not order costs unless I am satisfied that the Party against whom costs a claimed has engaged in conduct, or a course of conduct which is unreasonable, frivolous or in bad faith."¹⁶

114At paragraph 39 in his Motion (para. 39), Mr. Mathur asserts that “…it is expected that Mr. Allison’s (sic) would be aware of (sic) TLAB Rules of Practice and Procedure and the risk that his conduct could result in a cost reward (my emphasis)."¹⁷

115I acknowledge that it appears that Mr. Allison has on occasion, in the past, participated in proceedings before the TLAB and the former Ontario Municipal Board as suggested by Mr. Mathur, including as a Party in a matter before the TLAB for his property at 237 Seaton Street.

116One could therefore assume that he may or should have more familiarity with the Tribunal’s Rules and procedures than would a resident of Toronto who has never been before such a tribunal.

117However, I disagree with Mr. Mathur’s submission that, by default, Mr. Allison manipulated his understanding of the TLAB’s Rules and procedures by purposely ignoring or circumventing these practices or that he did so in for insidious purposes.

118I find Mr. Mathur’s assertion, therefore, that Mr. Allison “…should be held to a higher standard than a lay person (sic) attending a TLAB Hearing for the first time,” to be unfair and arbitrary.

119The TLAB holds the expectation that any Party participating in its hearings will act in good faith and in a manner that respects the process. The responsibilities and requirements of Parties and Participants are expressly codified in its Rules and procedures.

120Rule 28 specifically permits a Party to seek an award for costs from the TLAB on grounds established in those Rules.

121However, one’s experience as a Party before the Tribunal, and the extent of that involvement, is not one of those grounds.

122Mr. Allison has characterized his experience with the TLAB as “limited,” as he has suggested at paragraph 3.2 in his Response. To the degree that he is a resident of Cabbagetown and has participated in TLAB Hearings not as a qualified expert but as a neighbour with an interest in how his neighbourhood is evolving, I agree with that characterization.

123Mr. Allison also states in paragraph 3.2 that he “…familiarized himself with the TLAB’s Rules of Practice and Procedure throughout the hearing process so I could participate to the best of my ability.” I find his behaviour and conduct during the proceedings reflective of this affirmation.

124Mr. Allison attended all of the Hearing dates in this matter, including Teleconferences, and he made reasonable efforts to file the necessary Forms to comply with the TLAB Rules and procedural orders in consultation.

125I agree that it appears he made continuous demonstrable and honest efforts to mediate with other Parties throughout the application process and that these efforts were genuine and undertaken in good faith.

126I accept Mr. Allison’s submission that his participation was done in an earnest manner and that he appeared before the TLAB as a serious and vested litigant with a genuine concern about potential changes to the character of his neighbourhood.

127As noted above in this Motion Decision and Order, the TLAB’s discretion to award costs is subject to the threshold requirement relating to costs set out in Rule 28.7 of the TLAB’s Rules, which is that a Party against whom costs are claimed must have engaged in conduct or a course of conduct which is ‘unreasonable, frivolous, vexatious or in bad faith’.

128I consider this to be a high threshold given that as an administrative tribunal, the TLAB must ensure access to justice for all members of the public. A decision by the TLAB to award costs requires the TLAB to give serious consideration to awarding costs on the basis that doing so could deter the public from participating in the Hearing process.

129In Mr. Mathur’s Motion before the TLAB, I find that Mr. Allison’s conduct in this appeal proceeding, individually and cumulatively, does not meet that threshold.

130Therefore, I cannot find that it was unreasonable, frivolous, vexatious, or undertaken in bad faith, as required by the TLAB’s Rules, and that it contributed directly to the additional costs put forward by Mr. Mathur.

DECISION AND ORDER

131The Tribunal Orders that Mr. Mathur Motion for costs against Mr. Allison is denied.

D. Lombardi

Panel Member

Footnotes

1. 1Motion for Costs Decision and Order, Toronto Local Appeal Body, June 26, 2020, para. 14 & 15
2. 2Motion Decision, Toronto Local Appeal Body, August 7, 2018, 15 Nelles Ave.
3. 3Para. 43, Mr. Mathur’s Motion for Costs
4. 4Para. 11, Mr. Mathur’s Motion for Costs
5. 5Ibid., para. 10 & 11
6. 6Para. 2.14, Mr. Allison’s Notice of Response to Motion.
7. 7Para. 14, Mr. Mathur’s Motion for Costs
8. 8Ibid., para. 17
9. 9Para. 15, Mr. Mathur’s Motion for Costs
10. 10Ibid., para. 18
11. 11Ibid., para. 27
12. 12Para. 25, Mr. Mathur’s Motion for Costs
13. 13Ibid.
14. 14Para. 25, Mr. Mathur’s Motion for Costs
15. 15Para. 40, Mr. Mathur’s Motion for Costs
16. 16Decision and Order, Toronto Local Appeal Body, January 13, 2019, 362 Rustic Road, TLAB Case No. 19 114668, p. 13
17. 17Para. 38 & 39, Mr. Mathur’s Motion for Costs