Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
23 185593 S45 11 TLAB
Wong (Re), 2024 ONTLAB 225
MOTION DECISION AND ORDER
Issuance Date: May 8, 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): C. H. WONG
Applicant(s): A. POWELL
Property Address: 42 ULSTER ST
COA File No.: 23 125465 STE 11 MV (A0286/23TEY)
TLAB Case File No.: 23 185593 S45 11 TLAB
Hearing Date(s): November 27, 2023, January 18, 2024
Written Motion Date: May 7, 2024
Decision Delivered By: TLAB Chair D. Lombardi
REGISTERED PARTIES AND PARTICIPANTS:
| People Type | First Initial. Last Name | Representative |
|---|---|---|
| Applicant | A. POWELL | |
| Appellant/Owner | C. H. WONG | |
| Party (TLAB) | A. POWELL | |
| Party (TLAB) | D. MEDEIROS | |
| Party (TLAB) | M. REDINGER | M. HELFAND |
INTRODUCTION AND CONTEXT
1This matter arises by way of a Written Motion brought by Cary Hon-Ho Wong (Moving Party), who is the Appellant and the owner of the property municipally known as 42 Ulster Street (subject property).
2Mr. Wong applied to the City of Toronto (City) Committee of Adjustment (COA) for one (1) variance to permit the encroachment of a proposed rear deck into the required rear yard setback on the subject property.
3On July 19, 2023, the COA heard the application and refused the variance requested. Mr. Wong appealed the matter to the Toronto Local Appeal Body (TLAB).
4The TLAB heard the appeal over two (2) Hearing days – November 27, 2023, and January 18, 2024 – following which the presiding Member (Member Yao) issued a final Decision and Order (Decision), dated January 30, 2024, refusing the variance and confirming the COA’s decision.
5On February 28, 2024, Mr. Wong filed a request for a review (Review Request) of Member Yao’s Decision as permitted by Rule 31 of the TLAB’s Rules of Practice and Procedure (Rules).
6Following an administrative screening of the Review Request by TLAB staff, it was deemed compliant and was forwarded to the TLAB Chair to conduct the Review in accordance with the Rules.
7Rule 31.10 of the TLAB’s Rules permits a Party to respond to a Review Request by filing a Notice of Response to Review (Form 26), with Service on all Parties and the TLAB, no later than twenty (20) days from the date of Service of the Review Request.
8Mark Redinger was a Party in the Appeal matter. On March 19, 2024, Matthew Helfand (Aird & Berlis LLP), Mr. Redinger’s legal representative, filed a Response to Review Request on behalf of Party Redinger, within the requisite timeframe required by the Rules.
9Rule 31.14 permits a Reply to Response to Review Request with similar service responsibilities as with a Response, within five (5) Days from the date of service of the Response to Review Request.
10Mr. Wong filed a Reply to Response to Review Request with the TLAB, using Form 27, on April 12, 2024. This filing was received by the TLAB approximately fifteen (15) days after service of the Response to Review Request on the other Parties and the TLAB.
11Mr. Redinger objected to the ‘late’ submission of the Reply document.
12He also objected to the document exceeding the 5-page limit under the TLAB’s Rules. Rule 31.14 limits the length of the Reply to Response to Review Request to “…five (5) pages, double spaced, and written in 12-point font…”1
13Mr. Wong’s Reply to Response to Review Request is seven (7) pages in total, which exceeds the maximum number of pages permitted by the Rule.
14Following Mr. Redinger’s objections, the TLAB directed Mr. Wong to file a Notice of Motion (Form 7), to request relief in this regard, which he did on April 23, 2024.
15The Motion is scheduled as a Written Motion, with a Motion date of May 7, 2024.
16Mr. Redinger filed a Notice of Response to Motion (Form 8), and Mr. Wong reciprocated by filing a Notice Reply to Response to Motion (Form (9) as permitted by the TLAB’s Rules.
17Mr. Wong is seeking relief from the TLAB’s Rules to permit his ‘late’ Reply to Response to Review Request, which he submitted past the due date for filing such a document, to be formally entered into the record and served on the other Parties pursuant to Rule 31.14.
THE LEGISLATIVE POLICY AND FRAMEWORK
18The legislative and policy framework regarding this Motion falls within the TLAB’s Rules of Practice and Procedure (Rules).
19The genesis of the Motion issue at hand originated by way of a request by Mr. Wong to the TLAB for a review of Member Yao’s January 30, 2024, final Decision and Order regarding the subject property, which is permitted under Rule 31 of the TLAB’s Rules.
20In general, the TLAB has the discretion under its Rules and the Statutory Powers Procedure Act (SPPA), R.S.O. 1990, c. S.22, to admit or refuse to admit late-filed documents into the record.
21Rules 31.5, 31.6, 31.7, 31.10, 31.11, 31.12, and 31.14, deal with the timing and contents of a Review Request, a Response to a Review Request, and a Reply to Response to a Review Request:
Deadline for, and Service of, Review Request
31.5 A Review request shall be provided to all Parties and the TLAB by Service within 30 Days of the Final Decision or final order, unless the Chair directs otherwise.
Contents of a Review Request
31.6 A Party’s request for Review shall be entitled “Review Request” and shall contain the following:
a) a table of contents, listing each document contained in the Review Request and describing each document by its nature and date;
b) an overview of the Review Request not to exceed 2 pages that identifies the grounds listed in Rule 31.17 that apply;
c) if the Review Request includes grounds based upon Rule 31.17 I, a list of all alleged errors of fact or law;
d) a concise written argument contained in numbered paragraphs. The Review Request shall provide, avoiding repetition, the concise written arguments regarding each listed matter from Rule 31.17 in the same order and include the following:
i) the applicable section of the Planning Act or other legislative basis, if any, for the argument advanced;
ii. the wording of the applicable policy, By-law or authority, if any, in support of the argument advanced;
iii. the applicable transcript or other evidence and exhibit attachments, if any, in support of the argument advanced;
iv. a clear demonstration of how in the case of grounds asserted under Rule 31.17 c), d) and e), each would likely have resulted in a different Final Decision or final order.
v. copies of the referenced case law and authorities; and
vi. a statement as to the requested remedy.
Review Request not to Exceed 20 Pages
31.7 Excluding the table of contents, case law and transcripts, by-laws, exhibits and other supporting Documents, the Review Request shall not exceed 20 pages, double spaced, and written in 12-point font.
Response to Review Request
31.10 Despite Rule 31.9, if a Party needs to respond to the Review Request the Responding Party shall by Service on all Parties and the TLAB provide a Response to Review Request no later than 20 Days from the Date of Service pursuant to Rule 31.5, unless the Chair directs otherwise.
Contents of a Response to Review Request
31.11 A Responding Party’s response to Review Request shall be entitled “Response to Review Request” and shall contain the following:
a) a table of contents, listing each document contained in the Response to Review Request and describing each document by its nature and date;
b) an overview of the Response to Review Request not to exceed 2 pages that contains specific reference to the Review Request’s overview;
c) a concise written argument contained in numbered paragraphs, giving a response to each argument in the Review Request, and include the following :
i. the applicable transcript or other evidence and exhibit attachments, if any, in support;
ii. any other applicable legislation, policy documents, By-laws or other material that is not provided for in the Review Request; and
iii. any other applicable authorities and copies thereof; and
iv. a statement as to the remedy requested.
Response to Review Request not to Exceed 20 Pages
31.12 Excluding the table of contents, case law and authorities, transcripts, by-laws, exhibits and other supporting Documents, a Response to Review Request shall not exceed 20 pages, double spaced, and written in 12-point font.
Reply to Response to Review Request
31.14 If the Requesting Party needs to reply to a Response to Review Request, that Party shall provide by Service on the Parties and the TLAB a Reply to Response to Review Request not to exceed 5 pages, double spaced, and written in 12-point font and no later than 5 Days from the Date of Service pursuant to Rule 31.10, unless the Chair directs otherwise.
Contents of a Reply to Response to Review Request
31.15 A Reply to Response to Review Request shall contain the following:
a) a reply to facts, matters and Documents raised in the Response to Review Request;
b) list and attach the Documents used in the Reply to the Response to Review Request relating to those matters addressed in the Reply, including any case law or authorities raised in support.
22Additionally, Rule 31.4 of the TLAB’s Rules deals with whether a Motion can be brought with respect to a Review:
No Motions Except with Leave
31.4 No Motion may be brought with respect to a Review except with leave of the Chair.
23TLAB Rules 17.1 to 17.12 govern, inter alia, the filings of Notices of Motion, contents of Motion materials and the timelines for Notices of Response and Reply. More specifically, Motion Rules 17.3, 17.5, 17.9, and 17.11 are of relevance in this matter.
Notice of Motion
17.3 A Motion in a Proceeding shall be made by Notice of Motion, using Form 7. The TLAB may require a Motion to be held by Electronic Hearing.
TLAB may Require Motions to be in Writing or Electronically
17.5 The TLAB may require a Motion to be held in writing upon such terms as the TLAB directs.
Notice of Response to Motion and Service
17.9 If a Party needs to respond to a Motion a Responding Party shall Serve on all Parties and Participants a Notice of Response to Motion, using Form 8 and File same with the TLAB at least 7 Days before the Date the Motion is to be held by Oral Hearing or by Electronic Hearing, unless the TLAB directs otherwise.
Notice of Reply to Response to Motion and Service
17.11 If a Moving Party needs to reply to new issues, facts or Documents raised in the Notice of Response to Motion the Moving Party shall Serve on all Parties and Participants a Notice of Reply to Response to Motion, using Form 9, and File same with the TLAB at least 4 Days before the date of the Motion is to be held by Oral Hearing or by Electronic Hearing, unless the TLAB directs otherwise.
24TLAB Rules 2.1 and 2.2 permit the Tribunal to interpret its rules liberally to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.
25Rules 4.4 and 4.5 permit the TLAB to extend time limits as it considers appropriate and may exercise its discretion before or after the expiration of a time limit.
26Finally, the TLAB also relies on Practice Directions, of which the TLAB currently has a total of seven (7). Practice Directions outline processes and procedures that provide a ‘roadmap’ for the professions and the public as to how to approach and deal with a particular subject matter.
27Practice Direction No. 7 provides a protocol for the consideration of ‘interlocutory relief’ for filing of documents past the requisite due dates required by the Tribunal and gives the TLAB discretion to order or to hear a motion to determine whether such a document will be admitted into the record.
EVIDENCE
28The Notice of Motion filed on April 23, 2024, is accompanied by an Affidavit (Form 10) which sets out the facts upon which the Moving Party relies. The affidavit is sworn by Mr. Wong and confirms that he was out of the country at the time that Party Redinger’s Response to Review Request was filed with the TLAB (March 19, 2024).
29Attached to the affidavit is a copy of the airline tickets supporting Mr. Wong’s assertion that he was away from March 8th to April 1st of 2024.
30The Moving Party’s Motion requests the following:
“Relief from “reply to any Response to Review by other Parties, they may do so by serving a Form 27 – Reply to Notice of Responses to Review on TLAB and all other Parties no later than 25 days after the Notice of Review is issued.”
31While not sufficiently drafted to clarify exactly what Mr. Wong is seeking, it is my understanding that Mr. Wong is requesting relief for the late filing of his Reply to Notice of Response to Review Request as directed by the TLAB.
32I also presume that he is seeking relief to permit the ‘Reply’ to exceed 5 pages, in the event that the late filing relief is granted.
33In his Notice of Motion, as well as in his Notice of Reply to Response to Motion, Mr. Wong explains that Party Redinger’s Response to Review Request was filed while he was away and he was unable to reply on time. He states while out of the country, he had no access to a computer and “…it was not possible to fashion any response; not to mention the 13-hour time difference.”2
34Furthermore, he asserts that he was confused by the wording of TLAB Rule 31.14 (Reply to Response to Review Request) and, more specifically, Form 27, which he incorrectly asserts outlines when a Notice of Reply to Response to Review Request is to be filed with the TLAB.
35He argues that Form 27 states “…a response is required “no later than 25 days after the Notice of Review is issued”,”3 which he interpreted as meaning that his ‘Reply’ was required “…25 days after the Notice of Response to Review (Form 26).”4
36The TLAB’s Form 27 is the document that a Pary must complete and submit to the Tribunal outlining a reply to any response from a Party regarding a Notice of Review Request. The Form does not contain any wording that references filing due dates, contrary to Mr. Wong’s assertion.
37By contrast, Mr. Wong references the wording in Forms 23, 24 and 26 concerning filing due dates and argues that the wording in these Forms provides clearer direction as to the due date for the filing of those documents.
38He concludes by suggesting that the discrepancies in wording in Form 27 compounded the error in filing his ‘late’ Reply.
39I find Mr. Wong’s argument in this regard to be rather specious. Form 27 is unambiguous as to what the Requestor is to provide in the Reply:
Part 3: Reply to Notice of Response to Review
“Please provide a reply ONLY to new issues, facts or Documents raised in the Notice(s) of Response to Review and identify specific supporting Affidavit and Documentary Evidence filed.”
40Moreover, direction as to filing dates for a Reply to Response to Review Request is provided in Rule 31.14.
41Additionally, Mr. Wong asserts that being out of the country is “…definitely a legitimate reason for (sic) delayed response.”5 On this basis, he requests that the TLAB allow his Reply to Notice of Response to Review (Form 27), dated April 12, 2024, to be formally received and become part of the record for consideration in the Review Request matter.
42In his Notice of Response to Motion, Mr. Redinger opposes the relief sought, arguing that “being out of the Country” is not a valid and compelling reason to allow the late filing of Mr. Wong’s Reply to Notice of Response to Review.
ISSUES AND ANALYSIS
43As above noted, I find Mr. Wong’s grounds for relief in his Notice of Motion to be convoluted, somewhat confusing, and not well-crafted.
44The requirements for the filing and serving of the requisite documents permitted under Rule 31 – Review Request (Rule 31.5); Response to Review Request (Rule 31.10); and Reply to Response to Review Request (Rule 31.14) – are clearly outlined in the TLAB’s Rules.
45Rule 31.14 states that if a Requesting Party needs to reply to a Response to Review, that Party shall provide by Service on the Parties and the TLAB a Reply to Response to Review Request “…no later than 5 Days from the Date of Service pursuant to Rule 31.10…” (my emphasis)
46The reference to Rule 31.10 in the above-noted excerpt relates to the ’Response to Review Request’ and unmistakeably connects the due date for the filing of a ‘Reply’ to follow that of a ‘Response’.
47Therefore, I do not find Mr. Wong’s assertion convincing that the wording related to the submission of his Reply was confusing, nor do I consider it a basis for the relief sought.
48I, also, do not find that being out of the Country during the time period noted by Mr. Wong, and having no access to a computer, are legitimate reasons for the TLAB to circumvent its Rules and permit the late filing of the document in question.
49The filing of a request to review a TLAB Member’s Final Decision by a Party has ‘gravitas’. It is a serious matter and comes with associated responsibilities for the Party who files the Request and the Parties who provided a response.
50These responsibilities include being aware of the requirements of Rule 31 and the attendant filing deadlines and corresponding response and reply; being out of the Country does not negate this responsibility.
51It was Mr. Wong’s responsibility to monitor the Review Request matter that he filed, know and meet the requisite filing due dates and, if necessary, make every effort to achieve those deadlines, as did Mr. Redinger.
52I also find it hard to believe that Mr. Wong could not avail himself of the use of a computer while away, regardless of his location.
53Finally, I believe that professing unfamiliarity, inexperience, or confusion with the TLAB process or its Rules is not an excuse for flouting or circumventing those rules.
DECISION AND ORDER
54The relief requested in the Notice of Motion is not granted.
D. Lombardi
Panel Member