Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
Date:
2024-08-12
23 231161 S53 03 TLAB
23 231163 S45 03 TLAB
23 231164 S45 03 TLAB
Barida (Re), 2024 ONTLAB 249
MOTION DECISION AND ORDER
Issuance Date:
August 12, 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):
August 15, 2024
August 21, 2024
Deadline Date for Closing Submissions/Undertakings:
Decision Delivered By:
TLAB Vice-Chair A. Bassios
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Appellant
M. BARIDA
A. BOUCHELEV
Applicant
R. DEFINA
Party (TLAB)
LONG BRANCH NEIGHBOURHOOD ASSOCIATION (J. GIBSON)
Party (TLAB)
D. ORSER
Party (TLAB)
M. MCCOLL
Party (TLAB)
R. ZALOZNIK
Participant
S. WILLSHER
Participant
C. MERCADO
Participant
G. GIBSON
Participant
L. GERRIE
Participant
B. BAILEY
INTRODUCTION AND CONTEXT
1A previous Motion for adjournment of this matter from the original Hearing date (April 17, 2024) was granted. A revised Notice of Hearing has been issued for August 15 and August 21, 2024.
2A previous Motion from the Long Branch Neighbourhood Association (LBNA) to introduce a new Expert Witness and evidence was granted.
3On July 12, 2024, Mr Bouchelev, for the Appellant, requested a Motion Hearing Date in order to submit supplementary materials from the two Expert Witnesses who had already filed Expert Witness Statements, as well as seeking to admit two additional Experts and their Expert Witness Statements.
4On July 16, 2024, Mr. Bouchelev circulated a Notice of Motion (without a Hearing date included) and a supporting affidavit to all Parties and Participants.
5Mr Bouchelev did not receive a Motion Hearing Date from TLAB staff until July 26, 2024, at which time he was given the required Motion Hearing date and the due dates for Response and Reply to Response.
6He was advised by TLAB staff to perfect his Motion by July 29, 2024 and on that day he was able to provide the other Parties with the due dates for Response.
7The delay in response from TLAB staff is extremely unfortunate. I note that the LBNA experienced similar impediments, not having been given timely Motion Hearing dates. The LBNA similarly initiated the circulation of Motion materials without a correctly identified Motion Hearing date.
8The relief requested by the Appellant is to be permitted to admit two new Witnesses, two new Witness Statements and two revised Witness Statements (for Witnesses previously identified).
9A Response from the LBNA to the Appellant’s Motion was received on August 6, 2024.
10A Reply to Response to Motion was received on August 9, 2024.
THE LEGISLATIVE POLICY AND FRAMEWORK
11TLAB 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
12The Appellant first requested a Motion Hearing date on July 12, 2024. What became the formal Motion materials were first circulated to Parties on July 16, 2024.
13The Response to Motion from the LBNA is as follows:
Although the Supplementary Book of Expert Evidence (the substance of the Motion) was emailed to the LBNA on July 15, 2024, it was not properly served to all Parties as there was no Form 7 attached.
Although the proper form was emailed on July 16, 224, the Appellant failed to provide dates for responding Parties to file needed Responses.
The Response date given by the Appellant was August 6, 2024, which was a Civic Holiday.
The LBNA objects to the admission of Emanuel Diomis as a Witness along with the revised Schedule A and B as there is no Witness Statement from Mr. Diomis, only drawings.
It would be prejudicial to ask the LBNA to cross examine a witness with no witness statement submitted in advance.
The LBNA objects to the combined witness statements of the two land use planning experts.
The Appellant has not provided a Zoning Notice from a City Zoning Examiner.
The LBNA objects to the lateness of the revised designs.
ISSUES AND ANALYSIS
14There have been a number of regrettable administrative errors and omissions on the part of the TLAB staff regarding the handling of this file that caused delay in the execution of proper procedure and compromised formal notice to Parties of Motions and disclosure of Motion materials. I acknowledge and regret the impact that this has had in this matter.
15The failure to provide response dates, the date for Response and the overall delay in formal notice of the Motion being provided is largely attributable to inadequate responses from TLAB staff. It would not be fair to penalize the Appellant for delays caused by untimely responses from the TLAB administration.
16As Mr. Bouchelev shared the “Supplementary Materials” with all Parties and Participants as early as July 12, 2024, albeit outside of the formal TLAB process, the Parties have had some time to understand the intent of the Appellant.
17I note that the LBNA experienced similar issues in the management of their own motion to admit a new Witness and a new Expert Witness Statement.
18The first motion heard and decided in this matter was a motion for adjournment from the LBNA that resulted in an adjournment of the Hearing of this matter from April 17, 2024 to August 15 and August 21, 2024, to accommodate the attendance of the LBNA representatives.
19In the intervening months, the Appellant has initiated adjustments to the design in order to address some of the concerns which were expressed regarding injury to trees. The revised plans show the mitigation that is proposed to address damage to trees.
20The LBNA also sought, and was granted, admission of a new Expert Witness and evidence in the intervening period since the original Hearing date.
21The revisions to the plans have not resulted in a request for revised variances.
22The objections that the LBNA has raised regarding the amendments that are proposed to be made to the plans, the preference for a Zoning Notice, and the format of the Expert Witness Statement are matters that can be ruled upon within the Hearing.
CONCLUSION
23I am guided by the direction in TLAB Rule 2.12 : The TLAB may 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.
24I find that the evidence and testimony proposed to be admitted via the relief sought in this Motion are relevant to the proceedings.
25Within the context of normal Hearing procedure, procedural concerns may be addressed and the Parties may contest the evidence during the proceedings.
DECISION AND ORDER
26The relief sought by the Appellant to admit into the record the materials contained in the “Supplementary Book of Expert Evidence of the Applicant/Appellant” dated July 15, 2024, is granted.
A. Bassios
Panel Chair