Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
File Numbers: 23 231161 S53 03 TLAB 23 231163 S45 03 TLAB 23 231164 S45 03 TLAB
MOTION DECISION AND ORDER
Issuance Date: July 31, 2024
PROCEEDING COMMENCED UNDER Section 53, subsection 53(19), Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")
Appellant(s): MARY BARIDA
Applicant(s): ROSS DEFINA
Property Address: 15 RAMSGATE RD
COA File No.: 23 129015 WET 03 CO (B0011/23EYK), 23 129025 WET 03 MV (A0171/23EYK), 23 129026 WET 03 MV (A0170/23EYK)
TLAB Case File No.: 23 231161 S53 03 TLAB, 23 231163 S45 03 TLAB, 23 231164 S45 03 TLAB
Hearing Date(s):
Deadline Date for Closing Submissions/Undertakings: n/a
Decision Delivered By: TLAB Vice-Chair A. Bassios
REGISTERED PARTIES AND PARTICIPANTS:
| People Type | First Initial. Last Name | Representative |
|---|---|---|
| Applicant | R. Defina | |
| Appellant | M. Barida | A. Bouchelev |
| Party (TLAB) | R. Zaloznik | |
| Party (TLAB) | J. Gibson | |
| Party (TLAB) | D. Orser | |
| Participant | L. Gerrie | |
| Participant | M. McColl | |
| Participant | B. Bailey | |
| Participant | S. Willsher | |
| Participant | C. Mercado | |
| Participant | G. Gibson | |
| Expert Witness | T. Glover | |
| Expert Witness | V. Colantonio | |
| Witness | M. Dida (City of Toronto) |
INTRODUCTION AND CONTEXT
1A previous Motion for adjournment of this matter from the original Hearing date was granted. A revised Notice of Hearing has been issued for August 15 and August 21, 2024.
2As of the current date, Motions have been filed by two separate Parties for relief from Toronto Local Appeal Body (TLAB) Rule 16 to allow admission of additional Expert Witnesses and the filing of supplemental evidence after the due dates have passed.
3The Long Branch Neighbourhood Association (LBNA) and counsel for the Appellant have each filed Motions to admit additional Expert Witnesses and additional evidence in preparation for the Hearing of this matter starting on August 15, 2024.
4On June 7, 2024, the LBNA requested a Motion Hearing Date to allow the admission of a new Expert Witness Statement and a new Witness after the deadline for submissions had passed. Unfortunately, TLAB staff did not provide a response until July 9, 2024.
5The LBNA's Notice of Motion was issued on July 16, 2024. No Response to the Motion has been received.
6The LBNA seeks to admit the Expert Witness Statement of Sylvia Jorge. They will seek to have Ms. Jorge qualified as an expert in Urban Forests/ Forests Conservation.
7The Appellant has filed a similar Notice of Motion to admit new evidence from an arborist, whom they also seek to have recognized as an Expert in arboriculture.
THE LEGISLATIVE POLICY AND FRAMEWORK
8TLAB Rules of Policy and Procedure
2.2 These Rules shall be liberally interpreted to secure the just, most expeditious and cost-effective determination of every Proceeding on its merits.
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.
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.
- DISCLOSURE
Disclosure May be Ordered at any Stage
16.1 In addition to the Rules for the Filing, Service, Exchange and disclosure of evidence and Documents, the TLAB may, at any stage in a Proceeding, make orders for:
a) the discovery of a Party under Rule 18;
b) the Exchange of witness statements and reports of expert witnesses;
c) the provision of particulars;
d) the Exchange of a list of issues; and
e) any other form of 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.
Party Witness Statement
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 Page 23 of 45 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.
Response to Party Witness Statement
16.5 If any Party needs to respond to a Party Witness Statement a Responding Party shall Serve on all Parties a Responding Party Witness Statement using Form 19 and File same with the TLAB not later than 75 Days after the Notice of Hearing is Served.
Reply to Response to Party Witness Statement
16.6 If a Party needs to reply to new issues, facts or Documents raised in the Responding Party Witness Statement a Replying Party shall Serve on all Parties a Reply to Responding Party Witness Statement using Form 20 and File same with the TLAB not later than 85 Days after the Notice of Hearing is Served.
Participant Witness Statement
16.7 Participants shall serve a Participant Witness Statement on all Parties and File same with the TLAB, using Form 13, not later than 60 Days after a Notice of Hearing is Served. A Participant Witness Statement shall include full disclosure in accordance with the Rules, and:
a) a written outline of that Participant's intended evidence; and
b) the date.
Expert Witness Statement
16.8 Parties shall Serve an Expert Witness Statement on all Parties and File same with the TLAB, using Form 14, not later than 60 Days after a Notice of Hearing is Served.
Response to Expert Witness Statement
16.9 If a Party needs to respond to an Expert Witness Statement a responding Party shall Serve on all Parties a Responding Expert Witness Statement using Form 21 and File same with the TLAB not later than 75 Days after the Notice of Hearing is Served.
Reply to Response to Expert Witness Statement
16.10 If a Party needs to reply to new issues, facts or Documents raised in the Responding Expert Witness Statement a Replying Party shall Serve on all Parties a Reply to Responding Expert Witness Statement using Form 22 and File same with the TLAB not later than 85 Days after the Notice of Hearing is Served.
Expert's Duties
16.11 An expert engaged by or on behalf of a Party who is to provide opinion evidence in a Proceeding shall acknowledge his or her duties as an expert in writing by executing an Acknowledgement of Expert's Duty, using Form 6. An expert witness' duties include:
a) providing opinion evidence that is fair, objective and non-partisan;
b) providing opinion evidence that is related only to the matters that are within the expert's area of expertise; and
c) providing additional assistance to the TLAB as may reasonably be required to determine a matter in issue.
16.12 The duties of an expert provided in Rule 16.11 prevail over any obligation owed by an expert to the Party on whose behalf he or she is engaged.
Contents of Expert Witness Statement
16.13 An Expert Witness Statement shall include:
a) the expert's name, address and area of expertise;
b) the expert's qualifications, employment and educational experiences in his or her area of expertise;
c) the instructions provided to the expert in relation to the Proceeding;
d) the nature of the opinion being sought and, where there is a range of opinions given, a summary of the range and the reasons for the expert's opinion within that range; and
e) the expert's reasons for his or her opinion, including a description of the factual assumptions, research and any Documents relied upon by the expert in forming his or her opinion.
SUMMARY OF EVIDENCE
9The LBNA has provided motion materials and an affidavit from Christine Mercado, the Chair.
10The Hearing of this matter was adjourned from the original Notice of Hearing date. Subsequent to the adjournment, this Notice of Motion to enter additional evidence was served.
11The Expert Witness Statement of Ms. Jorge and the accompanying materials were submitted one month prior to the first re-scheduled hearing date of this matter; August 15, 2024.
ISSUES AND ANALYSIS
12There was, unfortunately, an undue delay between the LBNA's request for a Motion Hearing date and response from TLAB staff.
13The LBNA Motion introduces a new Expert Witness and evidence in a new specialized subject area, Urban Forests and Forest Conservation.
14The two questions for me to consider are whether the new evidence is relevant to the proceedings and, secondly, whether there is fair notice to the other Parties to prepare for a Hearing including the new evidence.
15The Appellant is also seeking via their own separate Notice of Motion to admit new evidence on the general issue of tree health. I am persuaded, therefore, that evidence regarding trees is relevant to two Parties and germane to the proceedings.
16The Appellant has not filed a Response to the LBNA's Notice of Motion. In light of their own investigations into the issue of tree health and the 30 days notice that has been provided, I find that there is sufficient time for the Appellant, (and other Parties) to prepare on the basis of the new evidence.
CONCLUSION
17The materials submitted can be relevant to the proceedings.
18Although late filings are strongly discouraged by this Tribunal, the adjournment of the previously-set Hearing date has allowed sufficient time to incorporate additional potentially relevant evidence.
DECISION AND ORDER
19The relief sought by the LBNA to admit Ms. Jorge's Expert Witness Statement and associated Exhibits, dated July 15, 2024, into the proceedings is granted.
A. Bassios Panel Chair