Sjuib (Re), 2024 ONTLAB 186

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2024-02-09

23 212649 S45 20 TLAB

Sjuib (Re), 2024 ONTLAB 186

Issuance Date:

February 9, 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.:

2023 212649 S45 20 TLAB

Hearing Date(s):

Wednesday, February 7, 2024

Decision Delivered By:

TLAB Chair D. Lombardi

People Type

First Initial. Last Name

Representative

Appellant

Applicant

Expert Witness

R. Russell

INTRODUCTION AND CONTEXT

1This matter involves a Notice of Motion filed by Mr. Chris Tonks (Prouse Dash Crouch LLP) on behalf of Fachrizal Fauzi Sjuib, the Appellant and owner of 6 Kenny Avenue (subject property).

2The Motion requests an Order from the Toronto Local Appeal Body (TLAB) extending the time to permit the Appellant/Moving Party, Mr. Sjuib, to have his land use planner, Mr. Robert Russell, file a revised Expert Witness Statement (EWS) in this appeal matter with the Tribunal.

Prologue

3The Appellant, Mr. Sjuib, submitted an application to the Scarborough Panel of the City of Toronto (City) Committee of Adjustment (COA) seeking approval for a total of four (4) variances to permit the demolition of the existing one-storey residential dwelling on the subject property and the construction of a new, two-storey detached dwelling.

4On September 20, 203, the Committee of Adjustment approved the Application, with two (2) conditions. The Appellant subsequently appealed the decision to the TLAB on October 10, 2023, and the Tribunal set a Hearing date to hear the appeal for February 7, 2024.

5The Notice of Appeal (Form 1), dated October 10, 2023, stated that the Appellant wished to appeal Condition No. 2 of the COA’s decision, which requires the owner of the subject property to register a permanent environmental easement for operational emissions on title to the subject property in favour of Metrolinx.

6Prior to the Hearing, at the urging of the assigned Panel Member, the TLAB directed that the Parties attend a Prehearing Conference (PHC), as permitted by Rule 21.6 of the TLAB’s Rules of Practice and Procedure (Rules).

7Rule 21.6 permits the presiding TLAB Panel Member to direct the Parties to come before the Tribunal to address, among other subjects, procedural matters and determine the issues raised by the Appeal.

8As well, Rule 21.6 permits the presiding Panel Member conducting the PHC to make any orders necessary to give effect to those matters provided in that Rule.

9The PHC was held on January 24, 2024, by way of the City’s WebEx virtual meeting platform. The only persons who attended were Mr. Sjuib, and Mr. Tonks, the Appellant’s legal representative.

10I note that there are no other Parties or Participants who have elected status in this Appeal.

11From the pre-filed materials in this Appeal, it was clear to the TLAB that the Appeal before the Tribunal related only to Condition #2 of the COA’s September 20, 2023, approval decision.

12This was supported by a review of Mr. Russell’s EWS in which he failed to provide any opinion evidence to address the variances requested or how those variances satisfy the four statutory tests.

13In light of this, I explained to Mr. Sjuib and his solicitor that a hearing before the TLAB is ‘de novo’ on the entire application and the Tribunal therefore requires evidence in relation to all of the variances sought by the Applicant.

14Additionally, I explained that the onus was on the Applicant to prove to the TLAB that all the variances requested satisfy the four statutory tests mandated by s. 45(1) of the Planning Act.

15I explained to Mr. Sjuib that, given that there are no other Parties in this Appeal matter, I was prepared to allow him to file a Motion with the TLAB to consider whether to allow Mr. Russell to resubmit his EWS, pursuant to Rule 17.1 of the TLAB’s Rules.

16I also was prepared to hear the Motion orally on February 7, 2024.

17Subsequently, on January 25, 2024, the TLAB issued an Order directing the following:

“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 Date to hear the Motion will be February 7, 2024;

That the Hearing scheduled for February 7, 2024, will be converted to an Oral Motion Hearing; and.

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

THE LEGISLATIVE POLICY AND FRAMEWORK

18The Moving Party in this matter refers to Rules 2.2, 2.12, 16.1, 17.1 and 23.1 of the TLAB’s Rules of Practice and Procedure.

19As per Rules 2.2 (Interpretation of these Rules) and 2.12 (Relief and Exceptions from these Rules), the TLAB is free to liberally interpret, and to grant relief from its Rules as it considers appropriate to enable it to effectively and completely adjudicate matters before it to secure the most just, expeditious and cost-effective manner.

20Additionally, Rule 16.1 (Disclosure may be ordered at any Stage) permits the TLAB to direct the disclosure of documents that a Party intends to rely on at a Hearing.

21Finally, Rules 17.1 (Date by which Motions will be Heard) and 23.1 (Hearing Dates Fixed) are procedural guidelines that permit the TLAB to hear a Motion closer to a set Hearing date and to adjourn a set Hearing date by an Order of the presiding Panel Member.

SUMMARY OF EVIDENCE

THE MOTION HEARING

22The Oral Motion Hearing in this matter was held on February 7, 2024. In attendance were the Appellant, Mr. Sjuib, his solicitor, Mr. Tonks, Mr. Russell, the Appellant’s planner, and Joel Di Giacomo, the project architect.

23Mr. Tonks filed the following documents in support of the Moving Party’s request:

Notice of Motion (Form 7), dated February 5, 2024;
Affidavit (Form 10), sworn by Mr. Russell, dated February 2, 2024;
September 20, 203, Committee of Adjustment Decision Notice re 6 Kenny Avenue (Exhibit “A”);
Final Appeal Submission, dated October 10, 2023 (Exhibit “B”);
Notice of Hearing (Exhibit “C”);
Mr. Russell’s Expert Witness Statement (Exhibit “D”);
Remarkable Building Group v. Kearney, 2023 ONTLAB 40; and,
Romano v. Toronto (City), 2023 ONTLAB 41.

24The Moving Party submits that the TLAB issued a Notice of Hearing on November 7, 2023, scheduling a Hearing date of February 7, 2024, for the Appeal and setting due dates to submit requisite document disclosure in that Notice.

25Following the filing of the Appeal with the TLAB, The Appellant retained Mr. Russell, a Register Professional Planner, who then filed an Expert Witness Statement in support of the Appeal.

26In his Affidavit Mr. Russell states that he was instructed by Counsel “…to provide a singular and limited opinion concerning a condition imposed by the Committee of Adjustment in the Decision, which required the Appellant to grant an operational emissions easement in favour of Metrolinx (Metrolinx Easement) on title of the Property.”

27Consequently, Mr. Russell’s EWS did not provide nor include planning evidence addressing all the variances sought by the Appellant in his initial application to the Committee of Adjustment.

28The Notice of Motion states that the Appellant’s Counsel has now informed Mr. Russell that an appeal to the TLAB is considered a “de novo” hearing, which requires the TLAB to adjudicate the entire application that was originally before the Committee, and not parts of that decision.

29Mr. Russell is prepared to do so, but given his current workload and schedule, he requires until February 26, 2024, to revise his Expert Witness Statement.

30The Moving Party argues that there is no inherent prejudice in extending the time to permit the Appellant to file a revised EWS from Mr. Russell given that there are no other Persons registered or who have elected Party or Participant status in this matter.

31The Moving Party also asserts that it is in the interest of justice to have a full record before the presiding Panel Member in respect of the Appeal and for the Application to be adjudicated on its merits.

ISSUES AND ANALYSIS

32An appeal before the TLAB triggers a ‘de novo’ hearing of the application, which means it is viewed ‘anew’ and as if it has not been heard before. And, while the Planning Act does require the Tribunal to have regard for the decision in the first instance, it is not determinant in the TLAB arriving at a decision.

33Under the legislation, the TLAB sits as the appellate jurisdiction on decisions from the Committee of Adjustment. Despite the TLAB being an appellate tribunal, its statutory mandate is a complete rehearing and first-instance consideration of the appeals before it.

34It is tautology at the TLAB that the entire application must be considered and not parts of a previous decision. Under s. 45(18) of the Planning Act, the entire application must be considered, and the Courts have determined that the onus is on the applicant to prove to the TLAB that all of the variances requested satisfy the four statutory tests mandated by the Planning Act.

35In the matter before the TLAB, I do not believe that the Appellant understood that requirement. Unfamiliarity or inexperience with the TLAB appeal process or its Rules is not an excuse for not understanding what is expected of an appellant before this Tribunal.

36However, I do not have a basis on the record to doubt the good faith of the Appellant and his representatives in this Proceeding. Mr. Russell stated that he had been retained by the Appellant because of his experience with environmental easements.

37In his Affidavit, he states when he was retained with a singular focus of providing “limited” opinion evidence concerning the condition imposed by the Committee of Adjustment in its decision, regarding the “Metrolinx Easement’. Mr. Tonks confirmed that this was the direction provided to Mr. Russell.

38The Appellant wishes to have a hearing of this appeal on a basis which is fair and he would like that hearing to take place as soon as reasonably possible, which is supported by the Tribunal’s Rules.

39I agree with the Moving Party that it is the TLAB’s objective that a hearing in this appeal takes place and that in the interests of justice, the TLAB have a full record so that the Appellant can make its case.

40To do so, the Appellant requires the TLAB to issue an Order extending the time required to permit Mr. Russell to revise his Expert Witness Statement and file same with the Tribunal.

41Rule 16.1 of the TLAB’s Rules permits the Tribunal to direct the disclosure of any document at any stage of a Hearing, and this Rule can apply, for example, to the filing of a revised expert’s witness statement.

42Therefore, based on the above, I find that the Moving Party has made a compelling case to grant the Moving Party’s Motion request. I agree that the requested due date of February 26, 2024, is a reasonable timeframe given that an anticipated new Hearing date in this matter will likely not be scheduled until early March.

43I also agree with the Moving Party that there is no inherent prejudice in extending the time for the submission of a revised Expert Witness Statement since there are no other Parties or Participants in this Appeal.

CONCLUSION

44I have considered the Motion and I find that granting the Moving Party’s request to allow Mr. Russell to revise and resubmit his Expert Witness Statement and to schedule a new Hearing date as soon as possible, will further the TLAB’s mandate to “secure the just, most expeditious and cost-effective determination of this proceeding on its merits.”

DECISION AND ORDER

45The Motion is granted; the Tribunal Orders that the Appellant may file Mr. Russell’s revised Expert Witness Statement with the TLAB by no later than Friday, February 26, 2024.

46Also, the Tribunal Orders that Hearing Day 2 in this Appeal matter be scheduled for Tuesday, March 5, 2024, and that TLAB staff issue a new Notice of Hearing in this regard.

47The TLAB may be spoken to if issues arise with fulfilling this Decision and Order.

D. Lombardi

Panel Member