Amiri (Re), 2023 ONTLAB 53

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 211

Toronto, Ontario M4R 1B9

Date:

2023-03-27

21 221592 S45 07 TLAB

Amiri (Re), 2023 ONTLAB 53

Issuance Date:

March 27, 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):

Applicant(s):

Property Address:

3176 WESTON RD

COA File No.:

21 161711 WET 07 MV (A0311/21EYK)

TLAB Case File No.:

21 221592 S45 07 TLAB

Hearing Date(s):

March 15, 2023

Decision Delivered By:

TLAB Chair D. Lombardi

People Type

Name

Representative

Owner

Primary Owner

Expert Witness (Late Election)

Applicant/Appellant

INTRODUCTION AND CONTEXT

1This is an Oral Motion Hearing related to an appeal by Ismatullah Amiri (Applicant/Appellant) of a September 14, 2021, decision of the Etobicoke York Panel of the City of Toronto (City) Committee of Adjustment (COA) refusing a variance that would permit the owner of 3176 Weston Road (subject property) to reduce the front yard soft landscaping requirement to 20%, whereas Zoning By-law 569-2013 requires a minimum of 75% of the front yard landscaping must be soft landscaping (Application).

2The Applicant appealed the matter to the Toronto Local Appeal Body (TLAB) on November 5, 2021, and the TLAB set a hearing date for July 7, 2022.

3The only Parties in this matter are the Applicant/Appellant (Applicant), Mr. Amiri, and Sunil Persad (Owner).

4To date, the TLAB has convened three Hearing days - July 7, 2022, September 8, 2022, and November 23, 2022. The Panel Chair adjourned each proceeding on the Owner’s request pursuant to the TLAB’s Rules of Practice and Procedure (Rules) because the Applicant had failed to file any supporting documentation in the matter.

5As a result, the TLAB issued three (3) corresponding Adjournment Orders in this matter, on July 11, 2022, September 13, 2022, and November 30, 2022, respectively, at the request of Mr. Persad. The TLAB also convened a virtual Teleconference call with the Owner on October 25, 2022.

6The TLAB agreed to the adjournments to allow the Applicant additional time to prepare and submit filings in support of the request variance.

7In the interim, however, Mr. Amiri informed the Tribunal that he is no longer the Owner’s representative in this appeal matter and has withdrawn from the Application. The October 25th Teleconference was scheduled principally to address this matter.

8At the November 23rd Hearing, Mr. Persad advised the Panel Chair that he had been unable to retain a new representative and had no experience before the TLAB. He inquired whether the Panel Chair would support a further but final adjournment of the proceedings to allow him additional time to prepare his case, retain representation, and file appropriate and relevant documents.

9I did so, reluctantly, as I found that it was neither appropriate nor fair to make a final decision without a written record and in the absence of ‘viva-voce’ evidence.

10Subsequently, I issued an Adjournment Order dated November 30, 2022, directing TLAB staff to schedule a new Hearing in early 2023 and issue a new Notice of Hearing with revised filing due dates for the submission of supporting documents.

11However, the deadline dates for the election of Party and/or Participant status included in the initial Notice of Hearing issued for Hearing Day 1 in this appeal would remain unchanged.

12I also directed the Applicant in that Adjournment Order to file with the TLAB the following documents: an updated set of Site Plan drawings; a survey plan for the subject property; a revised list of variances being sought; and, a corresponding Zoning Examiner’s Notice.

13The TLAB issued a new Notice of Hearing setting a Hearing date of March 22, 2023.

14In an email to the TLAB dated February 10, 2023, Mr. Michael Barton (MB1 Urban Planning Consultants) advised that he had been recently retained by Mr. Persad as an expert planning witness in the appeal matter.

15He also noted that he was unable to file his Expert Witness Statement and supporting documentation by the submission due date (February 10, 2023) in the new Notice of Hearing issued by the TLAB following the November 23rd Hearing.

16Mr. Barton requested additional time to finalize and submit his Expert Witness Statement.

17In response, I advised TLAB staff that I would hear the matter by way of an Oral Motion Hearing, and Mr. Barton was directed to file a Notice of Motion (Form 7) in this regard.

18The TLAB set an Oral Motion Hearing for March 15, 2023.

19Mr. Barton filed his Expert Witness Statement on February 21, 2023, along with his Form 6 and Form 14, which were marked ‘Late’ by TLAB staff.

20His Motion requests that the TLAB admit his Expert Witness Statement into the record as a late filing and that it be admissible as evidence through expert testimony by Mr. Barton at the March 22, 2023 Hearing.

THE LEGISLATIVE AND POLICY FRAMEWORK

21Rule 17 of the TLAB’s Rules of Practice and Procedure (Rules) provides direction on Motions before the Tribunal.

22Additionally, Rule 2.10 empowers the TLAB to grant exceptions or other relief to the TLAB’s Rules as it considers appropriate to enable it to effectively and completely adjudicate matters in a “just, expeditious, and cost-effective manner.”

23Furthermore, Practice Direction No. 7 provides direction on ‘Interlocutory’ or late filings before the TLAB. This Practice Direction gives the presiding Member discretion in a proceeding to admit or refuse to admit late-filed materials and discretion to order or to hear a Motion to determine whether document disclosure that is filed late after a deadline will be admitted into the record.

EVIDENCE, ISSUES AND ANALYSIS

24There are no other Parties or Participants in this matter. Therefore, the issue is whether to allow Mr. Barton’s Expert Witness Statement, which was filed after the due date in the Notice of Hearing, to be entered into the record and whether doing so would be of any prejudicial value.

25Mr. Barton notes in his Motion that upon being retained by Mr. Persad and after reviewing the previous drawings prepared by Mr. Amiri, he identified a potential for errors made by the former Representative in the calculations of the requested zoning relief.

26Specifically, Mr. Barton reviewed the history of the COA application, which included revisions to the original application including the elimination of one variance and the modification of the one (1) remaining variance being sought.

27That variance, which was refused by the COA, was based on plans prepared by Mr. Amiri and is now the variance before the TLAB.

28Mr. Barton notes that in reviewing the plans and documents submitted to the COA, Mr. Amiri incorrectly revised the requested variance relief as a percentage of the total front yard area as opposed to a percentage of the required front yard landscaping, which requires 50% of the total front yard to be soft landscaping.

29Mr. Barton subsequently contacted the City Zoning Examiner on the file to seek confirmation of this error and confirmation of the actual zoning relief required to reflect the current plans.

30He submits that the Zoning Examiner was not able to provide feedback in advance of the February 10, 2023 deadline and, therefore, he was unable to finalize and submit his Expert Witness Statement (EWS) by the requisite filing due date.

31As a result, Mr. Barton was unable to finalize and submit his EWS prior to the filing due date without further confirmation of the correct variance wording and is seeking an extension of the date to file his Expert Witness Statement.

32He asserts that if his relief request is granted, he will be able to provide accurate information to the TLAB and ensure that the appropriate variance is considered at the March 22nd Hearing.

33Nevertheless, he filed his EWS after the February 10, 2023, deadline (on February 21, 2023) to ensure that the requirements of the November 30th Adjournment Order were addressed in terms of providing evidence to address the four statutory tests of the Planning Act and also to seek a response from the Zoning Examiner.

34As part of his Motion filing, Mr. Barton attached the email chain between himself and the Zoning Examiner which confirms the fact that the calculations prepared by Mr. Amiri were erroneous. The email chain also validates the discussions to date with the City.

CONCLUSION

35There is no right to a variance; the obligation is on the proponent, in this case, Mr. Persad and his expert witness, to demonstrate that his application satisfies the prerequisite elements of s. 45(1) of the Planning Act, also known as the four statutory tests as they relate to variances.

36The TLAB has fixed Hearing dates which are to be honoured and kept.

37While I acknowledge that there are no other Parties or Participants in this matter, the TLAB’s Rules of Practice and Procedure are clear that the filing due dates in a Notice of Hearing are firm and must be met.

38The obligation rests with the Parties in a matter before the TLAB to respect those deadlines.

39The TLAB recognizes and acknowledges that late filings compromise Tribunal procedures of fairness and are to be discouraged. However, it also recognizes that materials are sometimes filed after the deadline set in the Notice of Hearing has passed.

40The TLAB’s Practice Direction No. 7, provides direction relating to ‘Interlocutory’ or Late Filing relief. It outlines that late filings will only be permitted under justifiable circumstances and only at the discretion of the presiding Member, who can admit or refuse to admit late materials into the record.

41The Practice Direction states that late filings can only be addressed by Motion, either written or orally, and brought at the beginning of a Hearing or in a separate Motion Hearing.

42Given the unique circumstances in this proceeding, to date, and the issues Mr. Persad has encountered with the late notice of disengagement of his former Representative (Mr. Amiri), I find that it is not appropriate to make a final determination in this appeal matter without a written record.

43I also find that it is appropriate and procedurally fair to allow Mr. Barton’s late Expert Witness Statement filing to be entered into the record and admissible as evidence through expert testimony by Mr. Barton at the Hearing on March 22, 2023.

44However, I must note that I take this decision seriously and make it reluctantly even though there are no other Parties to this appeal and with the understanding that the TLAB’s Rules establish that the Tribunal is committed to defined submission filing due dates.

DECISION AND ORDER

45The relief sought by Mr. Barton in his Notion of Motion dated March 3, 2023, is granted, and his Expert Witness Statement will be admitted into the record as a late filing and admissible as evidence through his expert testimony.

46Mr. Barton is also directed to submit the following documents to the TLAB in advance of the Hearing on March 22, 2023: a revised Site Plan drawing(s); a survey of the subject property; a new Zoning Examiner’s Notice/Zoning Waiver; and, an updated variance or variances list.

D. Lombardi

Panel Member