Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2023-03-29

20 209020 S45 11 TLAB

1941120 Ontario Ltd v. Perin, 2023 ONTLAB 58

INTERIM DECISION AND ORDER WITH INSTRUCTIONS

Issuance Date:

March 29, 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):

1941120 Ontario Ltd

Applicant(s):

1941120 Ontario Ltd

Property Address:

57 MAJOR ST

COA File No.:

20 138367 STE 11 MV (A0395/20TEY)

TLAB Case File No.:

20 209020 S45 11 TLAB

Hearing Date(s):

Wednesday, March 15, 2023

Deadline Date for Closing Submissions/Undertakings:

Wednesday, March 29, 2023

Decision Delivered By:

TLAB Panel Member S. Gopikrishna

REGISTERED PARTIES AND PARTICIPANTS:

Applicant/Owner/Appellant

1941120 Ontario Ltd

M. Mazierski

Party

M. Perin

Party

J. Sit

R. Penslar

Expert Witness

R. Brown

Participant

R. Penslar

INTRODUCTION AND CONTEXT

1The purpose of this Interim Decision is to address questions brought up by the Opposition after the issuance of an Interim Decision with instructions, dated March 22, 2023.

2On March 21, 2023, the TLAB received an email from Ms. Maria Perrin, one of the Parties in opposition to the Appeal, pointing out that three individuals had provided evidence against the Appeal during the Proceeding, before asking for clarification about which/how many of the three individuals could participate in “Argument” in response to the Interim Decision, which provided the Parties time till the end of the day on March 29, 2023, to submit Argument by way of a written submission. The TLAB staff email forwarded me the email on March 23, 2023, with a request for an immediate response. It is important to note that the Applicants were not copied by the Opposition, when sending the original email to the TLAB.

3My response to the aforementioned email, sent within a few minutes of receiving the request from the TLAB, is repeated below- I understand that the email was sent to the Parties by the TLAB staff the same day:

One reply on behalf of the opposition is fine- Mr. Brown is a witness for the two parties, so he has no separate Reply. I am prepared to allow the two Parties to combine their Written Submission for Oral Argument.

Please copy the Applicants on your response- it is important that ALL PARTIES ( just not the opposition) be copied on all correspondence with the TLAB

4A second question related to my Interim Order was received from Ms. Robin Penslar, who is also in opposition to the Appeal respecting 57 Major Street. This email, received on March 23, 2023, asked why the Applicants had been given time till April 5, 2023 to provide a Reply Submission to any submissions made by the Opposition, but the Opposition was not being extended an opportunity to submit a Reply to any submissions made by the Applicants. The email opined that “It does not seem like a fair process to accord one side of a matter but not the other the opportunity to submit a Reply to the other side's Closing Statement”, before “respectfully requesting an opportunity to submit Reply Argument by way of written submission to TLAB”. The email also asked for advice on whether “The Opposition needs to make this request in some other manner.”

ISSUES AND ANALYSIS

5By way of an explanation regarding the question from Party Perin about who can submit a Reply, given that there were three Witnesses who spoke in opposition to the Appeal, the Parties are herewith advised that any Party, who participated in the Hearing by way of giving evidence, or examination of Witnesses, or both, has the ability to participate in Argument, whether by way of Oral Submissions, or Written Submissions, depending on instructions from the Tribunal. Witnesses who are not Parties in the Appeal, and Participants cannot participate in Argument- by way of an example, an Expert Witness cannot participate in Oral Argument, because they did not elect to be a Party

After juxtaposing the above analysis, on the overlap in evidence between the Parties in opposition to the Appeal, and the time constraint to put together a submission for Argument, I ruled that the Opposition could jointly submit one Argument by way of writing, with a deadline of March 29, 2023.

6With respect to the question about why my Order dated March 23, 2023, did not address the question of the Opposition’s ability to provide a Reply, (as was accorded to the Applicants), the answer is that the Applicant is given the right of Reply ( both by way of evidence, as well as Oral Argument), because they have to be able respond to issues raised by the Opposition, but that they did not/could not raise in their Evidence-in-Chief, or Oral Argument, which is a consequence of having presented their evidence/Argument before the Opposition.

7On the other hand, the Opposition in any Appeal could have addressed all the points raised by the Applicants, when their giving evidence, by virtue of being aware of the Applicant’s position, who presented evidence and Argument before the Opposition. As a result, the Opposition, does not have the right to Reply. It is also important to note that the consequence of this methodology is that in Reply, the Applicants are restricted only to addressing issues that were brought up by the Opposition, that were not addressed in their ( the Applicants’) Examination-in-Chief.

8Since Oral Argument allows the Parties to summarize their positions based on the evidence presented earlier to the Tribunal, the same sequence of presentation ( i.e. Applicants present first, followed by the Opposition, followed by Reply from the Applicants) is followed in Oral Argument. As a result, the reasoning for giving the Applicants the right of Reply becomes evident when Oral Argument is presented orally. In keeping with this reasoning I find it logical, and reasonable to extend the Applicants the right of Reply only to the Applicants, even when Argument is presented by way of Written Submissions, as opposed to Oral Submissions.

9In the Appeal respecting 57 Major Street, I understand that the Opposition desires to send in a Reply submission to the Reply submission from the Applicants. I find it important to accord substantial weight to the reasoning underlying submissions explained above, resulting in the tradition followed by this Tribunal with respect to submissions, which does not give the Opposition the right to Reply, to Reply from the Applicants. However, I also realize that I cannot accurately predict what the submissions will be from the Parties, and would therefore like to balance the need the aforementioned tradition, with the ability to provide the Opposition an opportunity to address a completely new issue, or new perspective raised by the Applicants by way of Argument.

10As a result, I the Opposition can make a submission by way of Reply if it wants to, by the end of April 5, 2023.- it is important to note my findings neither prescribe, nor proscribe such a submission. However, I cannot guarantee that the Reply submission of the Opposition, will be utilized for the purposes of making findings.

11I have no choice but to admonish the Opposition for not copying the Applicants on their communications with the TLAB, more so when the email sent in response to their questions, dated March 23, 2023, explicitly stated that “ALL Parties ( just not the Opposition)” must be copied on all communication with the TLAB.

12Lastly, the Parties are advised no further communication from the Parties regarding questions or doubts about the prescribed methodology, and sequence of submissions, will be entertained, or responded to.

INTERIM DECISION AND ORDER WITH INSTRUCTIONS

13For the purposes of Oral Argument, the Parties in opposition to the Appeal respecting 57 Major Street, can combine their individual submissions into a combined submission, which needs to be submitted to the TLAB by the end of the day on March 29, 2023, with a copy to the Applicants.

14Reply Argument by the Opposition in response to the Reply Argument from the Applicants is neither proscribed, nor prescribed. The Reply Argument submission from the Opposition, if there is one, has to be completed by the end of day on April 5, 2023. However, there is no guarantee that this submission will be considered for the purposes of making findings. It is important to emphasize that the Applicants have to be copied on this submission

15No further correspondence from the Parties regarding questions or doubts with respect to process and procedure will be entertained, nor will they be responded to.

So orders the Toronto Local Appeal Body

S. Gopikrishna

Panel Member