Berger v. Fei, 2023 ONTLAB 94

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2023-05-25

20 211282 S53 17 TLAB

20 211232 S45 17 TLAB

20 211288 S45 17 TLAB

Berger v. Fei, 2023 ONTLAB 94

PRE-HEARING DECISION AND ORDER

Issuance Date:

May 25, 2023

PROCEEDING COMMENCED UNDER Section 53, subsection 53(19), Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")

Appellant(s):

ELAINE B. BERGER

Applicant(s):

TAES ARCHITECTS INC

Property Address:

3167 Bayview Ave

COA File No.:

19 226241 NNY 17 CO (B0039/19NY)

19 226248 NNY 17 MV (A0615/19NY)

19 226243 NNY 17 MV (A0614/19NY)

TLAB Case File No.:

20 211282 S53 17 TLAB

20 211232 S45 17 TLAB

20 211288 S45 17 TLAB

Hearing Date(s):

May 24, 2023

Decision Delivered By:

TLAB Panel Member G. Swinkin

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Appellant

E. B. Berger

L. Liquornik

Applicant

Taes Architects Inc

Party (TLAB)

L. Fei

M. Reedijk

INTRODUCTION AND CONTEXT

1. This appeal concerns the property municipally known as 3167 Bayview Avenue (the "Property"). Lily Fei and Michael Yee (the "Owners") are the owners of the Property. They brought applications to the Committee of Adjustment (the "Committee") seeking consent to sever the Property in two and to obtain variances from the Zoning By-law in order to construct a new two storey dwelling on each parcel.

2. The Committee approved those applications.

3. A neighbour at 255 Burbank Drive, Elaine Berger (the "Appellant"), appealed those decisions to the Toronto Local Appeal Body (the "Tribunal").

4. This session before the Tribunal was constituted as a Prehearing Conference at the instance of counsel for the Parties.

5. There was a prior Prehearing Conference conducted on September 29, 2022 before Member C. Kilby. At that time, Member Kilby heard a status update from the Parties arising out of the prior execution of Minutes of Settlement between them. Those Minutes called for the undertaking of certain geotechnical work.

6. Member Kilby was advised that the required geotechnical investigation was progressing and the Parties requested that a hearing date be fixed in the late spring or early summer of 2023 in order to deal either with a full settlement or to proceed to a hearing on any outstanding issues.

7. Member Kilby directed the fixing of a hearing date in May and in that regard, the Tribunal issued a Notice of Hearing for May 31, 2023.

8. As noted above, in advance of this scheduled hearing date, the Tribunal was notified by the Parties of a material change in circumstances with a request by counsel for the fixing of a further Prehearing Conference in order to address the matter.

9. The material change in circumstances is that the Appellant has died.

THE LEGISLATIVE AND POLICY FRAMEWORK

10. Rule 21 of the Tribunal's Rules of Practice and Procedure

Rule 21.2 authorizes the Tribunal to conduct a Prehearing where it is satisfied that there is a good reason to do so.

Rule 21.6 (h) authorizes the Tribunal to deal with any matter that may assist in a fair, cost-effective and expeditious resolution of the issues.

SUMMARY OF EVIDENCE

11. The Tribunal was advised by counsel that the Appellant died earlier this month. Counsel for the Appellant advised that he has been attempting to ascertain who will be administering the Appellant's estate with a view to obtaining instructions regarding how this appeal is to be dealt with.

12. The Appellant was the sole registered owner of the Property but leaves behind a spouse with whom she shared occupancy of the Property.

13. The spouse apparently is identified in the will of the Appellant as an executor, apparently along with others.

14. Mr. Liquornik advised that he has had discussions with the Appellant's spouse and he is, at this stage, relatively confident that a decision will be made to move to abandon and withdraw this appeal but that such decision has not yet been finalized.

15. Mr. Liquornik suggested that he would likely be in a position to deal with this matter by no later than June 15th and was seeking the Tribunal's indulgence to hold the appeal in abeyance until that time. Mr. Reedijk consented to that request.

ISSUES AND ANALYSIS

16. There did ensue some discussion amongst the Tribunal and counsel on a legal issue arising out of these circumstances and a procedural issue.

17. The Tribunal sought comment from counsel on whether the appeal may have legally expired with the expiry of the Appellant on the basis that no person has a property interest in a Notice of Appeal, as this is merely a statutory right, and that this could not therefore constitute as asset of the estate to be further administered. Counsel had apparently given some prior consideration to this proposition but had not deeply pursued it and as of the time of this session had not found a definitive answer to the question.

18. Should a decision to withdraw the appeal not be made, it remains open to the Owners to further pursue this issue and potentially bring a Motion to have the appeal concluded by the closing of the file on the basis that there is no longer an entity to legally further prosecute the appeal.

19. The procedural issue was raised by Mr. Reedijk. He directed the Tribunal to Sections 45(17)(d) and 45(17.1) of the Planning Act, which are reproduced here:

Dismissal without hearing

(17) Despite the Statutory Powers Procedure Act and subsection (16), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if,

(a) it is of the opinion that,

(i) the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal,

(ii) the appeal is not made in good faith or is frivolous or vexatious,

(iii) the appeal is made only for the purpose of delay, or

(iv) the appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process;

(b) the appellant has not provided written reasons for the appeal;

(c) the appellant has not paid the fee charged by the Tribunal; or

(d) the appellant has not responded to a request by the Tribunal for further information within the time specified by the Tribunal. 2017, c. 23, Sched. 5, s. 98 (5); 2019, c. 9, Sched. 12, s. 13 (2); 2021, c. 4, Sched. 6, s. 80 (1).

Representation

(17.1) Before dismissing all or part of an appeal, the Tribunal shall notify the appellant and give the appellant the opportunity to make representation on the proposed dismissal but this subsection does not apply if the appellant has not complied with a request made under clause (17) (d). 2000, c. 26, Sched. K, s. 5 (3); 2017, c. 23, Sched. 5, s. 80.

There are equivalent provisions with respect to consent appeals, which are found in Sections 53(31)(e) and 53(32) of the Planning Act.

20. The premise behind his identification of these provisions is that the Tribunal would, on the strength of the representation to communicate by Appellant's counsel, and bearing in mind the length of time that these appeals have been extant and that the running of time has been prejudicial to his client, fix June 15, 2023 as a date by which the Tribunal would require a communication from Appellant's counsel for information on whether the appeal is being withdrawn or not.

21. Failing a communication from Appellant's counsel by that date, Mr. Reedijk is suggesting that, under this statutory authority, the Tribunal, on its own initiative, could dismiss these appeals and that the provisions in Sections 45(17.1) and 53(32) would relieve the Tribunal of having to give any further notice before issuing the dismissal order.

22. Taking this approach would effectively be taking up an expedition argument on behalf of the Owners. Of course, if the Tribunal did not act on its own initiative, counsel for the Owners could nonetheless bring a motion for this relief on their own. It is also here worth noting that counsel for the Owners has already directed the Tribunal to the terms of the Minutes of Settlement, which lay some ground for a possible motion for dismissal on the basis of the absence of apparent land use planning grounds upon which the appeal could be allowed.

23. Therefore, in order simply to lend some gravity to the intent to bring resolution to this appeal, the Tribunal will fix June 15, 2023 as the date by which the Tribunal expects to have a communication from Appellant's counsel on whether the appeal is being withdrawn or not.

24. No one should deduce from the foregoing that the Tribunal harbours any apprehension or expectation that Mr. Liquornik will be remiss in his duty to communicate on or before this date. In fact, the Tribunal acknowledged during the session his candour and integrity in his conduct before the Tribunal this day.

25. The discussion herein is essentially meant to document openly before the Parties the matters which were discussed during this Prehearing session and what the Tribunal took to be a good faith desire on the part of both sides to conclude this appeal in the most efficient fashion possible.

DECISION AND ORDER

26. The Tribunal ORDERS THAT Appellant's counsel shall communicate to the Tribunal and to Owners' counsel on or before June 15, 2023 whether the Appellant's appeals herein are being withdrawn or not.

27. As adverted to in the foregoing Decision, in the event that the Tribunal does not receive such communication by June 15, 2023, the Tribunal reserves the right to exercise its authority under Section 45(17)(d) of the Planning Act to dismiss the variance appeals without a hearing, and under Section 53(31)(e) of the Planning Act to dismiss the consent appeal without a hearing.

28. In the event that Appellant's counsel communicates that the appeal is not being withdrawn, Owners' counsel will be at liberty to bring such Motions as he determines appropriate to address the progress or other disposition of these appeals.

G. Swinkin

Panel Member