Memar Architects Inc (Re), 2024 ONTLAB 242

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2024-08-01

24 117543 S53 18 TLAB

24 117540 S45 18 TLAB

24 117542 S45 18 TLAB

Memar Architects Inc (Re), 2024 ONTLAB 242

Issuance Date:

August 1, 2024

PROCEEDING COMMENCED UNDER section 53, subsection 53(19) and 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:

30 Lawnview Dr.

COA File No.:

23 197887 NNY 18 CO

23 197889 NNY 18 MV

23 197890 NNY 18 MV

TLAB Case File No.:

24 117543 S53 18 TLAB

24 117540 S45 18 TLAB

24 117542 S45 18 TLAB

Hearing Date(s):

June 5, 2024

Decision Delivered By:

TLAB Panel Member C. Wong

People Type

First Initial. Last Name

Representative

Applicant

Appellant

INTRODUCTION AND CONTEXT

1Mr. Saeid Talebi, the Applicant and owner of the property municipally known as 30 Lawnview Drive (the "Subject Property"), wishes to sever the Subject Property into two (2) new lots and construct a new two-storey detached dwelling on each of the two new lots (the "Proposed Applications").

2In September 2023, the Applicant's architect filed a consent application and two minor variance applications with the Committee of Adjustment ("COA") for the Proposed Applications.

3On January 8, 2024, the Applicant retained Mr. Andrew Palumbo, a Registered Professional Planner, to represent him at the COA Hearing on February 1, 2024.

4On February 1, 2024, the COA refused the Proposed Applications.

5On February 9, 2024, Mr. Palumbo experienced a health issue affecting his dominant hand.

6On February 21, 2024, the Applicant appealed the COA's refusal of the Proposed Applications to the Toronto Local Appeal Body ("TLAB").

7On February 29, 2024, the TLAB issued a Notice of Hearing, which set a Hearing for June 5, 2024, as well as deadlines for Applicant Disclosure – Form 3 (March 20, 2024), Notice of Intention to be a Party – Form 4 (April 2, 2024), and Witness Statement – Form 12 (April 29, 2024).

8The Applicant missed the March 20 deadline for Applicant Disclosure.

9On April 2, 2024, no Person(s) elected Party or Participant status in the matter.

10On April 8, 2024, the Applicant retained Mr. Palumbo to provide expert evidence at the TLAB Hearing.

11However, on April 12, 2024, Mr. Palumbo experienced a more serious return of the health issue affecting his dominant hand.

12On April 16, 2024, Mr. Palumbo informed the Applicant that he would not be able to complete and file an Expert Witness Statement ("EWS") and supporting materials by the Form 12 Deadline (April 29, 2024).

13The following day, approximately one month after the March 20 deadline for Applicant Disclosure, the Applicant's counsel, Mr. Martin Mazierski, filed an Applicant Disclosure with a new set of architectural drawings that eliminated the wall height variances associated with each of the two proposed dwellings.

14On April 29, 2024, the Applicant missed TLAB's deadline to submit its Witness Statement and supporting materials.

15On June 4, 2024, at 1:08pm, the day before the scheduled TLAB Hearing, Mr. Mazierski filed Mr. Palumbo's EWS and eight supporting documents to TLAB staff.

16On June 5, 2024, one hour before the scheduled Hearing commenced, Mr. Mazierski also filed a Table of prior COA decisions to support Mr. Palumbo's evidence to TLAB staff.

17Both Mr. Mazierski and Mr. Palumbo attended the Hearing.

18At the commencement of the Hearing, Mr. Mazierski requested a ruling from the TLAB to admit the late-filed Applicant Disclosure, Witness Statements and supporting materials into the record.

19In doing so, he cited TLAB's Practice Direction 7: Late Filings, which states that where there are "extenuating circumstances" and where there is "minimal non-prejudicial delay" and no other Parties or Participants, the TLAB may consider allowing late-filed materials to be entered into the record as evidence.

20Mr. Mazierski emphasized that the revised proposal results in a reduction of the massing of the proposed dwellings. Without stating it directly, he implied that consequently, no further notice would be required, according to s.45 (18.1.1) of the Planning Act.

21Pursuant to Rule 23 of the TLAB's Rules of Practice and Procedure ("Rules"), the presiding Member ordered that the Applicant submit a written Motion seeking an adjournment to another Hearing date.

22In addition, pursuant to Practice Direction 7: Late Filings, the presiding Member directed the Applicant to submit a written Motion requesting that the Applicant's late-filed Disclosure, EWS, and supporting materials be admitted into the record.

THE LEGISLATIVE POLICY AND FRAMEWORK

23 Planning Act, S. 2 - Provincial Interest

A decision of the Toronto Local Appeal Body (TLAB) shall have regard to, among other matters, matters of provincial interest, enumerated as (a) – (s) in the Planning Act.

24 Planning Act, S. 3 - Provincial Policy

A decision of the Toronto Local Appeal Body (TLAB) must be consistent with the 2020 Provincial Policy Statement (PPS) and conform to the Growth Plan for the Greater Golden Horseshoe (Growth Plan) for the subject area.

25 Planning Act, S. 45(1) - Variance

In considering the applications for variances from the Zoning By-laws, the TLAB Panel must be satisfied that the applications meet all of the four tests under s. 45(1) of the Act. The tests are whether the variances:

maintain the general intent and purpose of the Official Plan;
maintain the general intent and purpose of the Zoning By-laws;
are desirable for the appropriate development or use of the land; and
are minor.

26Toronto Local Appeal Body Rules of Practice and Procedure

APPLICANT'S DISCLOSURE

11.2 The Applicant shall File using Form 3 an Applicant's Disclosure, including text and plans, with the TLAB not later than 20 Days after a Notice of Hearing is Served.

DISCLOSURE

Disclosure of Documents

16.2 Parties and Participants shall Serve on all Parties a copy of every Document they intend to rely on or produce in the Hearing, except:

a) any Document previously Filed with the Committee of Adjustment;

b) any Public Document listed on the TLAB's List of Public Documents; and,

c) any Document previously Filed by a Party or Participant,

and File same with the TLAB not later than 60 Days after a Notice of Hearing is Served.

16.3 Where a Party or Participant fails to disclose Documents in accordance with Rule 16.2 the TLAB may on objection disallow the Document to be entered as evidence and may make such other orders as it deems appropriate in the circumstances.

16.4 If a Party intends to call a witness the Party shall Serve a witness statement on all other Parties and File same with the TLAB, using Form 12, not later than 60 Days

after a Notice of Hearing is Served. A Party Witness Statement shall include, where applicable:

a) a short written outline of the Person's background, experience and interest in the Appeal;

b) a list of the issues they will discuss and a written outline of that Person's intended evidence;

c) the date; and

d) the full legal name, Email address and full mailing address of the witness.

ADJOURNMENTS

Hearing Dates Fixed

23.1 Proceedings will take place on the date set by the TLAB and provided in the Notice of Hearing, unless the TLAB orders otherwise.

Request for Adjournment must be on Motion

23.2 A Party shall bring a Motion to seek an adjournment, unless the adjournment is on consent in accordance with Rule 17.2.

Considerations in Granting Adjournment

23.3 In deciding whether or not to grant a Motion for an adjournment the TLAB may, among other things, consider:

a) the reasons for an adjournment;

b) the interests of the Parties in having a full and fair Proceeding;

c) the integrity of the TLAB's process;

d) the timeliness of an adjournment;

e) the position of the other Parties on the request;

f) whether an adjournment will cause or contribute to any existing or potential harm or prejudice to others, including possible expense to other Parties;

g) the effect an adjournment may have on Parties, Participants or other Persons; and

h) the effect an adjournment may have on the ability of the TLAB to conduct a Proceeding in a just, timely and cost-effective manner.

MOTIONS

Consent adjournments Excepted Unless TLAB Directs Otherwise

17.2 Where a Party has obtained from the TLAB an adjourn-to date and all Parties consent to an adjournment request and all Participants have been notified of the request no motion is necessary and the TLAB may issue a revised Notice of Hearing.

27Toronto Local Appeal Body Practice Directions 7: Late Filings

The presiding Member has the discretion under the TLAB's Rules and under the Statutory Powers Procedure Act, RSO 1990m c.22. to admit or refuse late filed materials.

The presiding Member also has the discretion to order or to hear a motion to determine whether the Applicant's Disclosure that was filed after a deadline shall be admitted into the record.

If the Party files the Applicant's Disclosure after the deadline set out in a Notice of Hearing without the consent of all Parties, the Party must advise the presiding Member at the start of the Hearing and request that the late filed Applicant's Disclosure be admitted into the record.

In general, save for extenuating circumstances, minimal non-prejudicial delay or where consented to by other Parties, the late filed Applicant's Disclosure will not be admitted into the record.

SUMMARY OF EVIDENCE

281. Notice of Hearing (issued by TLAB on February 29, 2024)

292. Form 3 (originally filed on April 17, 2024)

303. Confirmation of Patient Visit to Ambulatory Care Department

314. Expert Statement and Supporting Materials (originally filed 2024-06-04)

325. Table of COA Decisions Approving Lot Coverage (originally filed 2024-06-05)

ISSUES AND ANALYSIS

33Issue A: Whether to Admit Late-Filed Disclosure, EWS and Supporting Materials

34TLAB's Rules of Practice and Procedure Rule 16.3 and TLAB's Practice Direction 7: Late Filings are intended to pointedly discourage the practice of late filings. While it is true that procedural fairness for other Parties or Participants would not be affected by Mr. Mazierski's late filings, Rule 16.3 and Practice Direction 7 are not designed to support late filings where there are no other Parties or Participants.

35TLAB does not permit late filings, especially the day before a Hearing, for a variety of reasons. Late-filed materials compromise TLAB's ability to ensure regulatory fairness and consistency in decision-making. The TLAB requires sufficient time to process documents and prepare for a Hearing with a high standard of professionalism and attention to detail for each of the numerous files they carry.

36Notice deadlines in the Tribunal's Rules ensure public confidence in the process. TLAB Hearings are open to the public and the preparedness of the Tribunal is important for the administration of a Proceeding in a way that maintains public confidence in the Tribunal. When notice deadlines are not met, the public's confidence in the administration of justice may be affected.

37The TLAB's Rules are set out for sound reasons. All applicants need to abide by these deadlines for the efficient administration of TLAB business and resources.

38In the current matter, the Applicant's Expert Witness himself informed the Applicant and his Counsel, in advance, that he would not be able to complete and file his EWS and supporting materials by the due date. At this point, the Applicant and Applicant's Counsel had the choice to either retain another Expert Witness who could meet the deadline or ask for an adjournment to meet new timelines issued by the Tribunal. Either choice would have eliminated the need for the Tribunal to allocate resources and time to hear a matter that was improperly advanced.

39Although not emphasized in Mr. Mazierski's Motion evidence, in addition to missing the EWS submission deadline, the Applicant also missed the March 20, 2024, Disclosure deadline.

40Mr. Mazierski filed the Applicant's Disclosure with a new design on April 17, 2024, almost one month late, as well as two weeks after the deadline for other Person(s) to elect Party and Participant status. Mr. Mazierski explained that the new design would eliminate the request for height variances.

41Nevertheless, it is concerning that Mr. Mazierski would rely heavily on the lack of other Parties and Participants to defend the late filing of his Witness Statement, when he filed his Applicant's Disclosure with changes after the deadline to elect Party and Participant status.

42Issue B: Whether to Grant an Adjournment

43In his Motion evidence, Mr. Mazierski's relies on TLAB Rule 17.2 "Where a Party has obtained from the TLAB an adjourn-to date" as justification for an adjournment. This provision in the TLAB Rules of Practice and Procedure, however, addresses a request for adjournment in advance of the scheduled Hearing date.

44Rule 17.2 provides that when there is consent of the Parties to adjourn, and the Member seized of the matter has agreed to and provides a Hearing to adjourn date, no motion is necessary. Once a Hearing has commenced, as in the current matter, however, adjournments are only granted via a ruling on a motion by the presiding Member. The correct time to request a Hearing adjournment without a motion is well in advance of the scheduled Hearing date, when it is apparent to the Applicant, his Expert or his Legal Representative, that one or more of the TLAB deadlines cannot be met.

45Therefore, rejecting Rule 17.2 as a rationale, I turn to Rule 23.3, Considerations in Granting Adjournment.

46In this, I consider Rule 23.3 a) the reasons for an adjournment. In his evidence, Mr. Mazierski outlines the unexpected delays that Mr. Palumbo, the Expert Witness, experienced in recovering from a health issue prior to TLAB's Witness Statement deadline.

47Interestingly, although the Applicant was not able to submit its Disclosure by the March 20 deadline, over a month and a half after Mr. Palumbo's initial health issue (on February 9), the Applicant submitted its Disclosure just five days after his health issue returned (on February 12).

48I find, however, that the unexpectedly long recovery experienced by Mr. Palumbo from his health concerns, which rendered Mr. Palumbo physically unable to complete his Witness Statement, is a legitimate reason for an adjournment.

49I then consider Rule 23.3 b), e), f), and g) regarding the Interests of the Parties, the Position of the Parties, and its Effect as it relates to Mr. Mazierki's Motion request. The Applicant is the only Party in the Proceeding and, therefore, an adjournment would only impact the Applicant. Since the Applicant caused the delay in the filing of materials, I do not find that granting the adjournment would be prejudicial to the Applicant's interests.

50In addition, an adjournment would not cause or contribute to any prejudice or harm, including expense, to other Parties or Participants in the matter, because there are none.

51Lastly, regarding Rule 23.3 c), d) and h), concerning the integrity of the TLAB process, timeliness of adjournment, and the effect on the TLAB Proceeding. I find that an adjournment to allow the presiding Member time to review the Applicant's materials prior to the Hearing will not impact the integrity of TLAB process, or the ability to conduct the Proceeding in a just, timely, and cost-effective manner.

52In fact, the time for proper review of the materials will increase the timely carriage of justice and scheduling another Hearing date is reasonable given the Applicant's extremely late submissions.

CONCLUSION

53I grant an adjournment based on the submitted evidence of the Expert Witness' health issues.

54Practice Direction 7 articulates that late filings may compromise TLAB's procedural fairness, are discouraged, and will only be permitted under justifiable circumstances. Under the Rules, the presiding Member has the discretion to admit or refuse to admit late filed Disclosure, EWS, and supporting material.

55Where an adjournment and new submission deadlines are required to accommodate health issues, a request to the TLAB must be made in advance of the scheduled Hearing date. To not do so is to risk the presiding Member refusing to admit the late filings.

56In this instance, I will allow the matter to be adjourned and will, on that basis, admit the late-filed Disclosure, Expert Witness Statement, and materials.

DECISION AND ORDER

57I grant the motion to adjourn to a new Hearing date.

58I grant the motion to admit the late filed materials (Applicant's Disclosure, 2024-05-15 Zoning Notice Part 1, 2024-05-15 Zoning Notice Part 2, Andrew Palumbo's CV, Andrew Palumbo's Expert Witness Statement, Andrew Palumbo's Form 6, Lot Area Maps, Lot Frontage Maps, Photo Inventory #1 Side Yard Setback Comparables, Photo Inventory #2 Lot Frontage Comparables, and Raw Lot Data from the City) into the record.

59TLAB staff are directed to canvas the Applicant for a new Hearing date.

C. Wong

Panel Member