Toronto Local Appeal Body

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

Date:

2024-01-25

23 212649 S45 20 TLAB

Sjuib (Re), 2024 ONTLAB 181

Issuance Date:

January 25, 2024

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:

6 Kenny Ave.

COA File No.:

23 187294 ESC 20 MV (A0178/23SC)

TLAB Case File No.:

23 212649 S45 20 TLAB

Hearing Date(s):

January 24, 2024

Decision Delivered By:

TLAB Chair D. Lombardi

People Type

First Initial. Last Name

Representative

Appellant

F. F. Sjuib

Applicant

J. Di Giacomo

Expert Witness

R. Russel

1This is a matter at the request of the Toronto Local Appeal Body (TLAB) in respect of an appeal of an approval, with conditions, by the Scarborough Panel of the City of Toronto (City) Committee of Adjustment (COA) for variances requested in respect of 6 Kenny Avenue (subject property).

2The Prehearing Conference (Conference) was held on Wednesday, January 24, 2024, by way of the City’s WebEx Electronic meeting platform; the Tribunal set aside 9:30 am to 12:30 pm for the Conference.

3For the record, the following invitees to the Conference were present:

Fachrizal Fauzi Sjuib, the Appellant and owner of the subject property; and
Christ Tonks (Prouse Dash Crouch LLP), the Appellant’s legal representative.

4The TLAB’s authority to direct the Parties to attend the Conference is permitted by Rule 21.6 of the TLAB’s Rules of Practice and Procedure (Rules), which also outlines the matters that can be dealt with at a Conference.

21.6 A prehearing may include settlement discussions, Motions or other procedural issues, in order to:

a) Identify the Parties and Participants and determine the issues raised by the Appeal;

b) Identify facts and evidence the Parties may agree on or upon which the TLAB may make a binding decision, including clarifying the specific details of the Application before the Tribunal and any revisions/modifications that may have been made after the Committee of Adjustment hearing;

c) Obtain admissions that may simplify the Hearing;

d) Discuss the possible use of Mediation or other dispute resolution processes and result in a more efficient and cost-effective hearing process;

e) Estimate the length of the Hearing and encourage Parties to agree upon the date(s) for any further procedural steps;

f) Deal with any other matter(s) that may assist in the TLAB conducting a fair, cost-effective, and expeditious resolution of the issues.

5Rule 21.6 permits the presiding Panel Member to direct the Parties to come before the TLAB to address procedural matters as outlined in 21.6 a) to f) above.

6In the Appeal matter in question, clarification regarding the following specific procedural matters was sought: to determine the issues raised by the appeal; to clarify the specific details of the Application before the Tribunal; and to deal with any other matter(s) that may assist the TLAB in conducting a fair, cost-effective, and expeditious resolution of the issues.

7Additionally, Rule 21.6 permits the presiding Panel Member conducting the Prehearing Conference to make any orders necessary to give effect to those matters provided for in Rule 21.6.

The Application/Appeal

8The Application that was before the COA sought approval for four (4) variances in total to permit the demolition of the existing one-storey residential-detached dwelling at 6 Kenny Ave. (subject property) and the construction of a new, two-storey detached dwelling.

9On September 20, 2023, the Committee approved the Application, subject to two (2) conditions.

10Subsequently, on October 10, 2023, the Appellant appealed the decision to the TLAB, and the Tribunal set a Hearing date to hear the appeal for February 7, 2024.

11In the Notice of Appeal (Form 1) filed with the TLAB on October 10, 2023, the Appellant stated that he was appealing Condition 2 of the COA’s decision of September 20th. This statement is found under Section 7: Appeal Specific Information, in that Form.

12The nature of the Appeal is also supported in Mr. Russell’s January 8, 2024, Expert Witness Statement where he explicitly states that the Appellant is appealing Condition #2 and provides evidence only in that regard.

13Condition #2 requires the owner of the subject property to register a permanent environmental easement regarding operational emissions on title in favour of Metrolinx.

14It is tautology at the TLAB that an appeal before the TLAB triggers a ‘de novo’ Hearing of the Application, which requires a consideration of the entire application and not parts of a previous decision and means it is viewed ‘anew’ and as if it has not been heard before.

15While the Planning Act does require the Tribunal to have regard for the decision in the first instance, it is not determinant in the TLAB making a decision.

16Under s. 45(18) of the Planning Act, the entire application must be considered, and jurisprudence is clear that the onus is on the Applicant to prove to the TLAB that all the variances requested must satisfy the four statutory tests mandated by the Planning Act.

17The burden lies with the Applicant to prove its case, even where the COA has previously authorized the requested variances.

18The TLAB must be satisfied that the application before it meets the policy and legislative tests mandated by s.45(1) of the Planning Act known as the four statutory tests - that is, that the variance(s) sought:

Maintain the general intent and purpose of the Official Plan.
Maintain the general intent and purpose of the Zoning By-law.
Are considered desirable for the appropriate development of the land.
Are considered minor.

THE LEGISLATIVE AND POLICY FRAMEWORK

19The TLAB is committed to fixed and definite hearing dates and its Rules of Practice and Procedure are interpreted to enable it to interpret its Rules liberally to secure the just, most expeditious and cost-effective determination of every Proceeding on its merits (Rules 2.1, 2.2, 2.3, and 2.12).

20Its Rules also permit the TLAB to make orders allowing the filing, service, and disclosure of evidence and documents at any stage in a Proceeding (Rule 16.1), and to hear a Motion later than fifteen (15) days before the Hearing (17.1).

SUMMARY OF EVIDENCE

21As this was a Prehearing Conference, the TLAB heard no evidence.

ISSUES AND ANALYSIS

22The Appellant has only appealed Condition #2 of the COA’s approval on September 20, 2023, of the Application. A ‘de novo’ hearing requires the Applicant to prove to the TLAB that all the variances requested satisfy the four statutory tests mandated by the Planning Act.

23The Appellant has two options in this situation. The first is to ask the TLAB to consider allowing the Appellant to file a Motion to permit the Appellant’s expert planning witness to revise his Expert Witness Statement and resubmit it to the TLAB.

24The revised Expert Witness Statement would include planning evidence regarding the four statutory tests that the Planning Act requires must be met in order for the TLAB to authorize the variances sought.

25Given that there are no other Parties or Participants in this Appeal, I am prepared to consider this request and to issue an Order pursuant to Rule 17.1 of the TLAB’s Rules permitting a Motion to be brought by the Appellant less than fifteen (15) days before the Hearing.

26I am also prepared to hear that Motion electronically on February 7, 2024, by converting that scheduled Hearing Day to a Motion Hearing. In that way, the February 7th date is preserved to hear the evidence regarding the Motion that may be sought by Mr. Sjuib.

27The second option is to proceed to the February 7, 2024, Hearing with the Appeal as submitted. However, I advised the Appellant that I would not permit the introduction of any new evidence at that Hearing, beyond that already filed with the TLAB, if that is the option the Appellant wishes to pursue.

28At 10:00 am, Mr. Tonks requested and was granted a fifteen (15) minute recess from the Conference in order to consult with his client and to receive direction regarding the upcoming Hearing.

29Following that recess, Mr. Tonks apologized to the TLAB regarding the Appeal submission and advised that the Appellant wished to receive permission from the presiding Panel Member to file a Motion to permit his expert planning witness to file an amended Expert Witness Statement, and to have the Motion heard orally on the February 7th Hearing date.

30He also enquired as to the filing timeframe for the Motion that would be acceptable to the TLAB given that the scheduled Hearing is two weeks away.

31In response, I advised that I was prepared to set Monday, February 5, 2024, at noon, as the submission due date for the filing of the Motion and associated documents.

DECISION AND ORDER

32I order that the Appellant be allowed to file a Notion of Motion (Form 7), as permitted by Rule 17.1 of the TLAB’s Rules of Practice and Procedure, and that the Motion Date to hear the Motion will be February 7, 2024.

33The Hearing scheduled for February 7, 2024, will be converted to an Oral Motion Hearing.

34The Motion and associated attachments/documents are to be filed with the TLAB by no later than 12:00 noon on Monday, February 5, 2024.

35The TLAB may be spoken to if issues arise in this regard.

D. Lombardi

Panel Member