Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
MOTION DECISION AND ORDER
Issuance Date: April 26, 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): MOHAMMED HIMEL
Applicant(s): DAVID IGELMAN
Property Address: 43 TWENTY FOURTH ST
COA File No.: 21 218404 WET 03 MV (A0496/21EYK)
TLAB Case File No.: 22 238761 S45 03 TLAB
Motion: April 11, 2023 (oral motion with supporting written materials, made at commencement of hearing)
Decision Delivered By: TLAB Panel Member T. Yao
REGISTERED PARTIES AND PARTICIPANTS:
People Type First Initial. Last Name Representative
Applicant D. Ingelman
Appellant M. Himel C. Kapelos (RITCHIE KETCHESON HART & BIGGART, LLP)
Participant LONG BRANCH NEIGHBOURHOOD ASSOCIATION
1Ms. Kapelos brings a motion to strike the evidence in Ms. Mercado’s Reply to Mr. Igelman’s Expert Witness Statement (“Response”):
An Order striking the evidence filed in the Responding Witness Statement for the Long Branch Neighbourhood Association (“LBNA”) as shown in Exhibit “A” to the Affidavit of R. Andrew Biggart, sworn April 4, 2023, on the basis that such evidence is not proper response.
2Mr. Himel has appealed to the TLAB from the Committee of Adjustment’s refusal to grant three minor variances. He wishes to tear down the house at 43 Twenty Fourth Street and has retained Ms. Kapelos and Mr. Igelman as his lawyer and planner. He is opposed by the Long Branch Neighbourhood Association, whose president is Ms. Mercado.
3Mr. Igelman and Ms. Mercado are the main witnesses in the hearing and as such were required to comply with prefiling requirements. The TLAB’s Notice of Hearing specified March 13, 2023, as the deadline, and both met that deadline.
4The TLAB Rules require that a witness prefile two things:
- “Documents”, that is, “a copy of every document that they intend to rely on (Rule 16.21), and
- “Witness Statements, “a written outline of their intended evidence (Rule 16.42).
5After seeing Mr. Igelman’s Expert Witness Statement, Ms. Mercado filed a 54-page Response document on March 27, 2023, consisting of
- Commentary indicating specific disagreements with Mr. Igelman.
- Two videotapes of the area in question,
- Road ROW (rights of way), a schedule to the Official Plan (this was deleted from Ms. Kapelos’ motion to strike as the Official Plan does not need to be prefiled. (See Footnote 1),
- List of properties;
- Current Land and Structure data;
- Floor Space Index maps.
6On March 28, 2023, Ms. Kapelos wrote:
You have submitted a Reply Witness Statement that contains new materials which is not permitted. This includes your exhibits and videos. I am writing to request that you withdraw your responding materials immediately otherwise I will have to bring a motion to exclude those materials and will be seeking my client’s full costs for same.
Yours truly,
Tina Kapelos
7On the same day, Ms. Mercado wrote to Ms. Kapelos:
We are acknowledging receipt of your email.
We have attached an email from TLAB staff advising that if/when the Member elects to grant Party status, our documents will be processed. We suspect that decision is coming shortly.
Sincerely
Christine Mercado
8On March 29, 2023, Ms. Kapelos sent the following email to the TLAB:
Dear TLAB,
As a result of the LBNA’s filing of a Reply Statement that contains new evidence and failure to withdraw those materials notwithstanding my requests, I am writing to advise the TLAB that my client will be bringing a motion to strike this evidence, returnable at the commencement of the hearing and reserves his right to seek costs against the LBNA.
Thank you,
Tina Kapelos
9She then filed the motion on April 4, 2023, and raised it as a preliminary matter at the commencement of the April 11, 2023 hearing. This is not the only prehearing motion. Prior to April 5, 2023, both the owner and LBNA were uncertain as to whether the latter would be allowed to elect to participate in the hearing. Through inadvertence, LBNA failed to elect to become a party within the required time. Its status is now settled by my Order of April 5, 2023, allowing it to become a party and relieving of time deadlines for the filing of materials.
10This motion was argued at the start of the hearing, so I reserved judgement, and I directed Ms. Kapelos to begin her case with Mr. Igelman’s evidence in chief assuming that if Ms. Mercado’s Response might not be struck, and she might testify as to its contents when she takes the stand. I advised both parties I would render a decision as soon as possible and I now do so. I am dismissing Ms. Kapelos’s motion.
“Case splitting”
11The motion’s main argument is that the Response is “case splitting”, i.e., that a Party cannot raise new material or use a Reply to merely rework an argument already stated.3 Case splitting is not usually argued at this stage. Standard TLAB practice would be to call on Mr. Igelman to go first, then Ms. Mercado and it is Mr. Igelman who would have had the right of reply. It seems that any unfairness could have been cured during the hearing because the proponent has the “last word”.
12Ms. Kapelos cited a single case, CIC Management Services v Toronto,4 an Ontario Local Planning Appeal Tribunal decision in which three reply statements were struck. That case in turn quotes R v Krause as a statement of the law. 5
13In Krause, the Crown had proved the victim Mr. Hutter had gone to Mr. Krause’s house with money to get help in buying marijuana and was later found dead without the money. Mr. Krause was interrogated by the police and made statements that were not relevant to the murder, but relevant to his credibility. For example, that the police told him if he did not tell them which dealer Mr. Hutter should see, the police would go directly to known drug dealers and “kick in the doors”. The Crown had proven these statements were admissible in a voir dire, but assured defence counsel that they would only be used in cross examination. After the cross examination, they changed their position, and sought to seek leave to call in rebuttal other witnesses as to the truth of the collateral statements. The headnote says, “The rebuttal was to impeach the credibility of the defendant”. The trial judge allowed the Crown to do so, which was upheld by the BC Court of Appeal, and overruled by the Supreme Court of Canada.
14I conclude that a criminal law case is so different from a tribunal case that it is of little assistance. The case splitting rule was applied to the Crown not the defence. Ms. Kapelos attempts to apply it to LBNA. The Crown bears the responsibility of proving its case and giving timely and adequate disclosure, and there is a presumption in favour of the defendant that the Crown has to overcome. There is no presumption in favour of Mr. Himel that the LBNA has to overcome.
15Turning to the LPAT case, that context is also different. CIC Management v Toronto was a large and complex hearing dealing with refusals or neglect by the City to pass OPA and zoning amendments. The Style of Cause mentions 17(24), 17(40), 22(7), and 34(11) of the Planning Act. Which all deal with the neglect or refusal by the city to pass Official Plan amendments and zoning by-laws. Some of the differences are:
- The LPAT was charged with certifying participant status, there being no public meeting. At the TLAB the parties themselves choose whether to become parties or participants not the TLAB member. What is a straightforward process at the TLAB was the object of dispute at the LPAT.
- Adding a new party can widen the issues and present the already-certified parties with a moving target and delay.
- The subject matter was more complex, involving several dozen parties and participants, multiple blocks of land and changes to the Official Plan; none of which is happening in this case.
16The case cited was one of six prehearing conferences at which various persons could bring preliminary motions to streamline the final hearing. For the cited case (one of 13 decisions), the City and a group of owners (“Dunbar”) combined to bring motions to strike the reply witness statements of Lakeshore Planning Council Corp. and Mimico Lakeshore Community Network (LPCC and MLCN) on the basis that they were repetitive of previous statements. (the case eventually settled; with agreement between the City and landowners but not the ratepayers.) The Member said:
[6] Firstly, the Tribunal agrees with counsel that the Reply Witness Statements of Messrs. Dobson and Chomik dated March 29, 2018 are attempts to re-confirm the original opinions provided in their Witness Statements filed earlier in this proceeding as part of the exchange of documents provide for in a draft procedural order, which the parties were relying on. Furthermore, it was also clear that the Reply Witness Statements contained information that could have been provided in their original witness statements and as such this information is not admissible in reply.
17The remainder of the decision notes that the Reply statements were also objectionable on the basis of irrelevance and hearsay.6 This is not alleged in the case before me.
18I conclude the context for case splitting was different.
TLAB Rules governing disclosure
19Rules 16.1 to 16.3 deal with document disclosure whether the person is appellant, party or participant. As I said previously both parties filed their documents on time and on the same date. The LPAT does not have a common prefiling deadline and does not generally require the prefiling documents unless there is a special order to do so.7 At the TLAB the practice is to receive late filed documents and mark them late and leave it to the possibly disadvantaged party to bring lateness to the presiding member’s attention pursuant to Rule 16 3.
2016.3 Where a Party or Participant fails to disclose Documents in accordance with Rule 16.2 the TLAB may on objection disallow the Document to be entered as evidence and may make such other orders as it deems appropriate in the circumstances.
21This is what Ms. Kapelos has done. However in my view, the Rule’s use of the word “fails” suggests a deliberate concealment might have occurred, to gain an advantage of surprise, and this is not the case here; Ms. Mercado is attempting not to surprise her opponent by providing more information.
22Rule 16.3 also modifies the failure “in accordance with Rule 16.2” This Rule permits a party to be exempted from the document disclosure for “previously filed documents by a Party or a participant” and since all persons are given the same deadline, this rule must contemplate additions, and supplemental material.
23The next sections of the TLAB Rules deal with Witness Statements and Expert Witness Statements:
Party Witness Statement
16.4 If a Party intends to call a witness the Party shall Serve a witness statement on all other Parties and File same with the TLAB, using Form 12, not later than 60 Days after a Notice of Hearing is Served. A Party Witness Statement shall include, where applicable
a) a short written outline of the Person’s background, experience and interest in the Appeal;
b) a list of the issues they will discuss and a written outline of that Person’s intended evidence
c) the date; and d) the full legal name, Email address and full mailing address of the witness.
Response to Party Witness Statement
16.5 If any Party needs to respond to a Party Witness Statement a Responding Party shall Serve on all Parties a Responding Party Witness Statement using Form 19 and File same with the TLAB not later than 75 Days after the Notice of Hearing is Served.
Reply to Response to Party Witness Statement
16.6 If a Party needs to reply to new issues, facts or Documents raised in the Responding Party Witness Statement a Replying Party shall Serve on all Parties a Reply to Responding Party Witness Statement using Form 20 and File same with the TLAB not later than 85 Days after the Notice of Hearing is Served.
24There is a similar language with regard to Expert Witness Statements except that the content of an expert witness statement is in a different section.
Expert Witness Statement
16.8 Parties shall Serve an Expert Witness Statement on all Parties and File same with the TLAB, using Form 14, not later than 60 Days after a Notice of Hearing is Served.
Response to Expert Witness Statement
16.9 If a Party needs to respond to an Expert Witness Statement a responding Party shall Serve on all Parties a Responding Expert Witness Statement using Form 21 and File same with the TLAB not later than 75 Days after the Notice of Hearing is Served.
Reply to Response to Expert Witness Statement
16.10 If a Party needs to reply to new issues, facts or Documents raised in the Responding Expert Witness Statement a Replying Party shall Serve on all Parties a Reply to Responding Expert Witness Statement using Form 22 and File same with the TLAB not later than 85 Days after the Notice of Hearing is Served.
25Both use the same terms: “Response”, “Reply to Response” and since the Rules have created such documents, the drafter must necessarily have intended to open the door to additional material. These must necessarily be contemplated as late filings; theoretically, two additional rounds of witness statements are possible after the deadline. Moreover, since the reply could be to “new documents”, I find it reasonable to expect a Response may have documents attached to it, also after the March 13, 2023 deadline. It is only this second round of “Replies to Responses” that the case splitting principles are expressed.
26It is in respect to Reply Rule 16.9 that Ms. Kapelos invokes the case law in Krause:
The general rule is that the Crown, or in civil matters the plaintiff, will not be allowed to split its case.
In this matter the “plaintiff” is Mr. Himel. He has the right of reply.
27I now turn to Ms. Mercado’s explanation in the oral motion. Ms. Mercado said that the videotape had to be filed separately because the City of Toronto email rules limit attachments to 25 megabytes. Thus, she could not include it in the original filing. She also referred to Practice Direction 48, which states the video must be previously disclosed and the presiding member must give approval. I find the video has been disclosed and I give approval. The fact that it was not disclosed on March 13, 2023 (fourteen days before the actual disclosure) can be explored on cross examination.
28Ms. Mercado says the road width information was filed late because Mr. Igelman referred to road widths, and “it piqued her interest”. I find this is a genuine “new issue” raised by the proponent, which should not be struck in the absence of prejudice, and none is alleged.
29Her list of properties and structural data is not alleged to be new and I presume why it was not included in the earlier document can be explored in cross examination.
30Finally, the FSI maps are corrections to previously filed material. To prevent witnesses from making corrections in advance of the hearing would be neither sensible nor practical.
31In conclusion, the overarching approach in Rule 2.29 is to facilitate information exchange to prevent surprise, prejudice the other party, unfairness and to shorten hearings. I see no prejudice to the Appellant. There is notice to the other side, right of cross examination and an opportunity to call witnesses to reply in this hearing. There is the right to comment on the Response material in Ms. Kapelos’s..opening statements and submissions.
DECISION AND ORDER
32The motion to strike Ms. Mercado’s Response is dismissed. I make an order pursuant to Practice Direction 4 to permit the introduction of the two videos.
T. Yao Panel Member
Footnotes
- Disclosure of Documents 16.2 Parties and Participants shall Serve on all Parties a copy of every Document they intend to rely on or produce in the Hearing, except: a) any Document previously Filed with the Committee of Adjustment; b) any Public Document listed on the TLAB’s List of Public Documents; and, c) any Document previously Filed by a Party or Participant, and File same with the TLAB not later than 60 Days after a Notice of Hearing is Served. 16.3 Where a Party or Participant fails to disclose Documents in accordance with Rule 16.2 the TLAB may on objection disallow the Document to be entered as evidence and may make such other orders as it deems appropriate in the circumstances.
- Party Witness Statement 16.4 If a Party intends to call a witness the Party shall Serve a witness statement on all other Parties and File same with the TLAB, using Form 12, not later than 60 Days after a Notice of Hearing is Served. A Party Witness Statement shall include, where applicable: a) a short written outline of the Person’s background, experience and interest in the Appeal; 23 b) a list of the issues they will discuss and a written outline of that Person’s intended evidence; c) the date; and d) the full legal name, Email address and full mailing address of the witness.
- [3]THE GROUNDS IN SUPPORT OF THE MOTION ARE AS FOLLOWS:1.The evidence filed with the Responding Witness Statement of Christine Mercado, on behalf of the LBNA fails to adhere to the law of proper response. This evidence is not responsive to something new raised in the Expert Witness Statement of David Igelman, filed on behalf of the Appellant that could not have been reasonably anticipated. (Kapelos Notice of Motion)
- CIC Management Services Inc. v Toronto (City), 2018 CanLII 37757 (ON LPAT)
- At the outset, it may be observed that the law relating to the calling of rebuttal evidence in criminal cases derived originally from, and remains generally consistent with, the rules of law and practice governing the procedures followed in civil and criminal trials. The general rule is that the Crown, or in civil matters the plaintiff, will not be allowed to split its case. The Crown or the plaintiff must produce and enter in its own case all the clearly relevant evidence it has, or that it intends to rely upon, to establish its case with respect to all the issues raised in the pleadings; in a criminal case the indictment and any particulars: citations omitted} This rule prevents unfair surprise, prejudice and confusion which could result if the Crown or the plaintiff were allowed to split its case, that is, to put in part of its evidence‑‑as much as it deemed necessary at the outset‑‑then to close the case and after the defence is complete to add further evidence to bolster the position originally advanced. The underlying reason for this rule is that the defendant or the accused is entitled at the close of the Crown's case to have before it the full case for the Crown so that it is known from the outset what must be met in response. (R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 SCR 466)
- [11] Mr. Dobson’s Reply Witness Statement also refers to a number of newspaper articles to establish the truth of what is alleged in those articles.. . .
[15] Mr. Chomik’s Reply Witness Statement is quite lengthy consisting of 29 pages and 331 paragraphs, which merely runs through the City’s witnesses and attempts to point out inaccuracies in the City’s evidence. The Tribunal agrees with Ms. Moscovich’s suggestion that this Reply Witness Statement is better suited r rather than a Reply Witness statement. It does not contain anything new in response to the opinions expressed by the City’s and Dunpar’s witnesses in their witness statements.
[16] Ms. Moulder did not provide the Tribunal with any meaningful submissions upon which it could rely to deny the remedy requested. - 7.3 Copies of Documents for Parties and the Municipal Clerk A party who intends to introduce a document as evidence at a hearing event shall provide a copy of the document to all the parties at the beginning of the proceeding or by an earlier date if that is required by the terms of a procedural order or otherwise directed by the Tribunal.
- Practice Direction: Video Evidence Direction: On the approval of the presiding Member, video material that has been disclosed and identified, and served in accordance with the Rules, may be presented at a TLAB hearing. Video evidence must be served by providing the video URL to YouTube or some other video platform which is accessible to the public. The link to the video URL will be posted on the online case file as a PDF, for the public to access. Persons tendering video material are responsible for ensuring that the video can be played, and is audible.
- 2.2 These Rules shall be liberally interpreted to secure the just, most expeditious and cost-effective determination of every Proceeding on its merits.