Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
Date:
2024-03-26
20 209020 S45 11 TLAB
1941120 Ontario Ltd (Re), 2024 ONTLAB 206
INTERIM DECISION AND ORDER
Issuance Date:
March 26, 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):
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):
September 1, 2021, June 2, 2021, February 10, 2022,
February 14, 2022, March 15, 2023
Decision Delivered By:
TLAB Chair D. Lombardi
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Applicant/Owner/Appellant
1941120 Ontario Ltd
M. Mazierski
Party
M. Perin
Party
J. Sit
R. Penslar
Participant
R. Penslar
Participant
Y. Karshon
Participant
C. Carvalho
Participant
C. Ing
Participant
S. Hastie
Participant
J. Hastie
Participant
D. Penslar
Participant
S. Aggarwal
Participant
T. Grant
Participant
S. McDonald
Participant
T. Cheney
Participant
W. Su
Participant
A. Sakamoto
Participant
A. DeSousa
Participant
B. Hune
Participant
B. Von Lieres
Participant
E. Bearrs
Participant
M. Zwarenstein
Expert Witness
R. Brown
Witness (Summons)
M. Wang (City of Toronto)
INTRODUCTION AND CONTEXT
1Xinde Xia, agent for 1941120 Ontario Limited, the owner of the property municipally known as 57 Major Street (subject property), brought an application to the Committee of Adjustment (COA) on behalf of the owner, to legalize and maintain the basement secondary suite in the existing three-storey, two-unit townhouse on the subject property.
2The COA heard the applications on October 2, 2020, and issued a decision refusing the application for three (3) variances sought.
3Xinde Xia then filed an appeal (Appeal) to the Toronto Local Appeal Body (TLAB) on October 20, 2020, on behalf of the owner. The TLAB subsequently issued a Notice of Hearing and assigned the Appeal to (former) Panel Member S. Gopikrishna (Member Gopikrishna) to hear the matter.
4A total of twenty-four (24) persons are identified on the TLAB’s ‘List of Appellants, Parties, Participants and Legal Representatives’, including the owner of the subject property and the Appellant, three (3) Partiers and two (2) legal representatives, seventeen (17) persons who elected Participant status, and two (2) expert witnesses.
5The Proceeding in this Appeal consumed five (5) Hearing days, with Hearing Day #1 on June 2, 2021, and Hearing Day #5 completed on March 29, 2023.
6Member Gopikrishna has issued seven (7) interim Decisions and Orders to date, including two (2) Motion decisions addressing the introduction of filed materials filed after the requisite due dates, and five (5) Interim Decisions all of which generally addressed procedural issues related document submissions.
7The last Interim Decision and Order on the record, issued by the former Member and uploaded to the TLAB’s Application Information Centre (AIC) website was dated March 29, 2023.
8In the intervening period following the last Hearing Day, some 377 days have passed without the issuance of a final decision and order thereby completing the disposition of the Proceeding.
9On May 17, 2023, Member Gopikrishna tendered his resignation to the City Council, effective immediately, ending his appointment as a TLAB Panel Member prior to the scheduled end of his appointment term in December 2023.
10In such circumstances, the TLAB’s Rules of Practice and Procedure (Rules) provide guidance as to the continued responsibilities of a Member either with the expiry of a Member’s term or on a resignation before the end of that term.
11For example, Rule 2.15 of the TLAB’s Rules, under the heading ‘Expiry of Member’s Term during Hearing’, directs the following:
2.15 If the term of a Member presiding over a Hearing ends or expires before a decision or determination in a Proceeding is given, the term of the Member shall be deemed to continue, but only for the purpose of participating in the Proceeding to its conclusion and issuing a decision therein in accordance with the Rules and for no other purpose.
12Rule 2.17 addresses Members who resign before a determination is made in an appeal, and directs the following:
2.17 If a Member presiding over a hearing resigns from the TLAB before a decision or determination in that Proceeding is given, the Chair may appoint another Member to complete the Proceeding, and issue a decision.
13In accordance with the City of Toronto’s (City’s) Public Appointments Policy and description, members of the public who are appointed to the TLAB are responsible for presiding over hearings and rendering a written decision based on the evidence presented.
14Furthermore, such appointed Members are also governed by the Statutory Powers and Procedure Act (SPPA), which requires a Member to continue his/her term beyond a resignation date to complete hearings for any matter on which that Member was seized.
15As with all TLAB Members, Member Gopikrishna was aware of his continued responsibility in this regard and acknowledged such when he tendered his resignation to The City.
16At the time of his resignation, he had three (3) Appeal Hearing files over which he had presided, and which were awaiting a final decision and order.
17These files included 57 Major Street (TLAB Case File No.20 209020 S45 11 TLAB), the subject of this Interim Decision and Order, and for which the last Hearing Day was March 29, 2023.
18On March 14, 2024, Member Gopikrishna informed the TLAB that he had suffered a major health issue over the Christmas Holidays that had resulted in a significant, long-term health concern which has prevented his ability to conclude and discharge his remaining Tribunal responsibilities.
19Given this unfortunate health situation and the significant limitations on his ability to discharge his duties and produce decisions, he asked the TLAB to assign his outstanding Proceedings to different Panel Members.
THE LEGISLATIVE POLICY AND FRAMEWORK – TH TLAB’S RULES OF PRACTICE AND PROCEDURE
20Rule 2.2 – These Rules shall be liberally interpreted to secure the just, most expeditious and cost-effective determination of every Proceeding on its merit.
21Rule 2.3 - The TLAB may exercise any of its powers under these Rules or applicable law, on its own initiative or at the request of any Person.
22Rule 2.12 – The TLAB may grant all necessary exceptions to these Rules, or grant other relief as it considers appropriate, to enable it to effectively and completely adjudicate matters before it in a just, expeditious and cost-effective manner.
23Rule 2.17 – If a Member presiding over a hearing resigns from the TLAB before a decision or determination in that Proceeding is given, the Chair may appoint another Member to complete the Proceeding and issue a decision.
ISSUES AND ANALYSIS
24The circumstances regarding Member Gopikrishna’s situation are unprecedented at the TLAB.
25There continue to be Appeal matters for which he is responsible and for which final decisions continue to be outstanding, including 57 Major Street.
26Unfortunately, Member Gopikrishna, who was the Member seized on that Appeal and conducted hearings, is no longer in a position to complete the Proceedings in respect of this file.
27Rule 2.17 of the TLAB’s Rules permits the Chair to appoint another Member to complete the Proceeding and issue a final decision. 57 Major Street is one of the Appeal files that falls within the ambit of this Rule.
28Therefore, given the situation and in order to acknowledge and preserve the significant time and resources already expended in this Proceeding by the Parties and Participants, as well as the TLAB, the Chair finds that the most appropriate and reasonable resolution is to assign a different Member to complete the matter and issue a final decision and order.
29In doing so, the newly assigned Member will be directed to dispose of the matter appropriately, promptly issue a final decision and order, and will be given all the latitude permitted within the TLAB’s Rules to complete this assignment.
CONCLUSION
30In the circumstances, therefore, the Chair will appoint another Member to complete the Proceeding regarding 57 Major Street, who will be expected to conclude the Proceeding and issue a final decision and order in a timely manner.
DECISION AND ORDER
31The Chair ORDERS that another Member be appointed to complete the Proceeding for 57 Major Street and issue a final Decision and Order as permitted by Rule 2.17 of the TLAB’s Rules of Practice and Procedure.
32The Member will make every effort to issue a final Decision and Order by no later than April 30, 2024.
D. Lombardi
TLAB Chair