Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
File: 24 155346 S45 12 TLAB
INTERIM ORDER
Issuance Date: October 1, 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): FOREST RANGE DEVELOPMENTS INC
Applicant(s): OPTIONS ARCHITECTS INC
Property Address: 39A BURTON RD
COA File No.: 23 161949 STE 12 MV (A0554/23TEY) 23 161868 STE 12 MV
TLAB Case File No.: 24 155346 S45 12 TLAB 24 155270 S45 12 TLAB
Hearing Date(s): September 16, 2024
Decision Delivered By: TLAB Panel Member B. GALLAUGHER
REGISTERED PARTIES AND PARTICIPANTS:
| People Type | First Initial. Last Name | Representative |
|---|---|---|
| Appellant | FOREST RANGE DEVELOPMENTS | |
| Applicant | OPTIONS ARCHITECTS INC | P. NADDAF |
| Party | J. D ALTMAN | A. STEWART |
| Party | B. A BLUMENTHAL | A. STEWART |
INTRODUCTION AND CONTEXT
1Pedrum Naddaf, Options Architects, Inc. (Applicant), on behalf of Forest Range Developments, the owner of the properties municipally known as 39A and 39B Burton Road (subject properties), brought two (2) applications before the Toronto and East York Panel of the City of Toronto (City) Committee of Adjustment (COA).
2The COA gave the application the following File Numbers: 39A Burton Road - A0551/23TEY; and 39B Burton Road - A0554/23TEY.
3For the 39A Burton Road application, the Applicant sought ten (10) variances from city-wide Zoning By-law 569-2013 to permit the construction of a new, three-storey detached dwelling with an integral garage (in the basement), a front covered porch, a rear ground floor deck with stairs, front and rear second-storey balconies, as well as a rear basement walkout.
4For the 39B Burton Road application, the Applicant sought eight (8) variances from Zoning By-law 569-2013, to permit the construction of a new, three-storey detached dwelling with an integral garage (in the basement), a covered porch, a rear ground floor deck with stairs, as well as a rear basement walkout.
5The COA heard the two applications in tandem, on May 8, 2024, and refused both.
6On May 21, 2024, Mr. Naddaf filed a Notice of Appeal (Form 1) to the Toronto Local Appeal Body (TLAB) on behalf of the owner of the subject properties, for each application (Appeals).
7Upon receiving the Appeals, TLAB staff undertook an administrative screening of Form 1 as required under Rule 8 of the TLAB’s Rules of Practice and Procedure (Rules).
8Each was found to be compliant and, individually, received TLAB Case File Numbers – 24 155270 S45 12 TLAB for 39A Burton Rd., and 24 155346 S45 12 TLAB for 39B Burton Rd.
9The TLAB assigned a Case Manager to the Appeals with the responsibility of assigning the Appeals files to a Tribunal Member to conduct a Hearing. The two applications were to be heard together at the same Hearing.
10A Notice of Hearing (Form 2), dated June 12, 2024, was issued for each Appeal setting the Hearing date for September 16, 2024, and listing filing due dates for the election of status, document disclosure, expert witness statements, responses and replies, etc.
11However, following the processing of the Appeals, the Case Manager mistakenly assigned only the 39B Burton Road Appeal file for the September 16th Hearing to a Member, overlooking the 39A Burton Road file.
12Subsequently, the Hearing for 39B Burton Road went ahead as scheduled and was completed on the same day.
13Following the Hearing, the presiding Panel Member contacted the TLAB to question staff as to why the Appeals for 39A and 39B Burton were not scheduled to be heard at the same TLAB Hearing given that they had been heard concurrently at the COA and appealed in the same manner.
14Upon further investigation of this matter by senior Tribunal Court Services staff, it was determined that there had been an error on the part of the Case Manager and the matter was brought to the TLAB Chair’s attention for consideration and direction.
15This Interim Order, then, constitutes that consideration and direction.
THE LEGISLATIVE POLICY AND FRAMEWORK – THE TLAB’S RULES OF PRACTICE AND PROCEDURE
16Rule 2.2 – These Rules shall be liberally interpreted to secure the just, most expeditious and cost-effective determination of every Proceeding on its merit.
17Rule 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.
18Rule 2.7 – Where procedures are not provided for in these Rules, the TLAB may do whatever is necessary and permitted by law to enable it to effectively and completely adjudicate matters before it in a just, expeditious and cost-effective manner.
19Rule 2.11 – Substantial compliance with the requirement of these Rules is sufficient.
20Rule 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.
ISSUES AND ANALYSIS
21As a reminder, it is important to note that a hearing before the TLAB is a hearing ‘de novo’ under s.45(18) of the Planning Act, meaning that the entire application that was before the COA must be considered anew.
22Further, the burden is on the Applicant to prove its case and to satisfy the TLAB that the application before it and the variances being sought meet the four statutory tests mandated by s.45(1) of the Planning Act. In other words, for the variances to be granted, the Tribunal must be satisfied that all four tests have been met.
23The circumstances in this situation are unfortunate. Clearly, an error occurred for which the TLAB accepts responsibility.
24The appeals related to 39A and 39B Burton Road should have been before the TLAB together and heard by the presiding Panel Member at the September 4th Hearing. The Appeal of 39A Burton Road was not properly before the Member and because of an oversight and error on Tribunal staff’s part, the Member heard only the appeal for 39B Burton Road.
25It is clear to the TLAB that the Parties remain engaged in the appeal related to 39A Burton Road and wish to ensure that a process is established, which will provide a fair opportunity for each Party to call its case.
26Given the situation, therefore, and in order to preserve the principles of natural justice and procedural fairness, it is the Tribunal’s position that the most appropriate and reasonable solution is for the TLAB to schedule a Hearing for 39A Burton Rd., to hear the appeal of the COA’s refusal of the requested variances.
27The TLAB’s Rules give the Tribunal allowances in such situations which are not addressed in its Rules to grant relief that it considers appropriate to enable it to effectively and completely adjudicate matters before it in a just, expeditious and cost-effective manner.
28Therefore, in the matter at hand, the TLAB Chair finds that the most appropriate and reasonable solution to rectify the situation is to direct Tribunal staff to schedule a Hearing for 39A Burton Road and to confirm that the Member who heard the Appeal for 39B Burton Road is seized to hear the matter.
DECISION AND ORDER
29The Chair ORDERS that TLAB staff schedule a Hearing for the Proceeding for 39A Burton Road no later than October 31, 2024.
30Additionally, the Chair directs that the Member who heard the Appeal for 39B Burton Road is also seized to hear the Appeal for 39A Burton Road.
D. LOMBARDI TLAB Panel Member and Chair