Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
23 222705 S45 24 TLAB
Prasad (Re), 2024 ONTLAB 230
DECISION AND ORDER
Issuance Date: May 23, 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): M. Prasad
Applicant(s): Residential Drafting Services Ltd.
Property Address: 8 Adams Dr.
COA File No.: 23 175562 ESC 24 MV (A0161/23SC)
TLAB Case File No.: 23 222705 S45 24 TLAB
Hearing Date(s): April 29, 2024
Deadline Date for Closing Submissions/Undertakings: April 29, 2024
Decision Delivered By: TLAB Panel Member R. Kanter
REGISTERED PARTIES AND PARTICIPANTS:
| People Type | First Initial. Last Name | Representative |
|---|---|---|
| Owner | U. Ramaiah | |
| Owner/Appellant | M. Prasad | |
| Applicant | Residential Drafting Services | P. McAuliffe |
| Party | City of Toronto | U. Gautam |
| Expert Witness | A. Castaneda |
INTRODUCTION AND CONTEXT
1At the start of the Electronic Hearing on April 29, 2024, I asked everyone who was present to introduce themselves and state their interest in this Appeal.
2Mr. M. Prasad stated that he was the Owner/Appellant. I asked Mr. Prasad if the Applicant, Mr. P. McAuliffe, would be presenting evidence in support of the Appeal. Mr. Prasad said he would contact Mr. McAuliffe and ask him to attend the Hearing.
3Ms. U. Gautam stated that she was counsel for the City of Toronto. She was accompanied by Mr. A. Castaneda, an expert witness on behalf of the City.
4Ms. Gautam raised a preliminary matter. She requested that I dismiss this Appeal without a Hearing. She provided a Book of Authorities in support of the City’s position on the preliminary matter.
THE LEGISLATIVE AND POLICY FRAMEWORK
5Provincial Interest - S. 2
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.
6Provincial Policy – S. 3
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.
7Variance – S. 45(1)
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.
8Dismissal without hearing – S. 45 (17) (17.1) & (17.2)
Despite the Statutory Powers Procedure Act and subsection (16), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if,
(a) it is of the opinion that,
(i) the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal,
(ii) the appeal is not made in good faith or is frivolous or vexatious,
(iii) the appeal is made only for the purpose of delay, or
(iv) the appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process;
(b) the appellant has not provided written reasons for the appeal;
(c) the appellant has not paid the fee charged by the Tribunal; or
(d) the appellant has not responded to a request by the Tribunal for further information within the time specified by the Tribunal
(17.1) Before dismissing all or part of an appeal, the Tribunal shall notify the appellant and give the appellant the opportunity to make representation on the proposed dismissal, but this subsection does not apply if the appellant has not complied with a request made under clause.
(17.2) The Tribunal may dismiss all or part of an appeal after holding a hearing or without holding a hearing on the motion under subsection (17), as it considers appropriate.
THE CITY’S REQUEST FOR DISMISSAL
9Ms. Gautam made a number of representations in support of the City’s request that the TLAB dismiss the Appeal without a Hearing.
10She stated that neither the Owner/Appellant nor the Applicant provided adequate disclosure of the reasons for the Appeal. The lack of disclosure resulted in a very uneven hearing, leaving the City vulnerable to “trial by ambush.”
11Ms. Gautam asserted that the Ontario Land Tribunal and its predecessors, as well as the Toronto Local Appeal Body (the “TLAB”), had dismissed appeals under similar circumstances. She relied on a number of cases in support of her request, found in the City’s Book of Authorities.
12She also stated that the Applicant could not be both a witness and an advocate at the Hearing. She said the Toronto Local Appeal Body Public Guide (the “Guide”) described the conflict between the roles of an advocate and a witness.
13Ms. Gautam further stated that the Applicant failed to address the statutory tests for a minor variance set out in the Planning Act (the “Act”). She relied on an earlier case of Paul v. Toronto (City) (”Paul”), in which Mr. McAuliffe appeared as an agent for another Applicant/Appellant. She said that Paul supported the City’s proposition that failure to address the statutory planning tests should result in in dismissal of this case without a hearing.1
14She noted that this Hearing had been adjourned twice at the Owner/Applicant’s Request. The Owner/Applicant had more than the usual opportunity to familiarize himself with the TLAB’s Rules of Practice and Procedure (Rules) concerning his responsibility to provide documentation prior to a Hearing before the TLAB.
15Ms. Gautam did not include a reference to any statutory provisions she relied on.
THE APPLICANT’S RESPONSE
16Mr. McAuliffe joined the Hearing at the request of Mr. Prasad. Mr. McAuliffe is the principal of Residential Drafting Services Ltd., and was described in Paul as an architectural designer. He said he did not provide a Witness Statement since he came to Mr. Prasad “at the last minute”.
17Mr. McAuliffe stated that he has not appeared previously before the TLAB, and does not have expertise in the TLAB process, the Official Plan or Zoning By-law 569-2013 (the “ZBL”).
18He stated that he has expertise in the construction of the seven (7) existing basement units at 8 Adams Drive which Mr. Prasad is trying to legalize by this Appeal. He is knowledgeable with respect to the application of the Ontario Building Code to the units.
19Mr. McAuliffe referred to discussions with the City concerning the number and configuration of secondary suites in the basement of 8 Adams. He said that the City would require Mr. Prasad to convert the building to a rooming house, and make other changes which Mr. Prasad did not want to do and could not afford to do.
20Mr. McAuliffe said there was a house on the same block as 8 Adams which containes a similar number of secondary basement units as Mr. Prasad is seeking to legalize.
21Mr. McAuliffe also mentioned an application for four (4) secondary units. Neither he nor Mr. Prasad disclosed any details of a possible amendment to the application from 7 units to 4 units.
ISSUES AND ANALYSIS
22The threshold issue in this case is whether I agree with the City’s position that I should dismiss the Appeal without a Hearing.
23I begin my analysis by reviewing the material which the Parties filed with the TLAB prior to the Hearing.
24Mr. Prasad filed a Notice of Appeal describing the five (5) requested variances, which are as follows:
An addition or exterior alteration to an existing building to accommodate a secondary suite is permitted if it does not alter or add to a front wall. Proposed basement walk-out stair at front leading to the secondary suites of the existing detached house altered/added to a front wall that faces a street.
The minimum required rear yard setback is 12.46 m. The proposed rear yard setback for proposed basement rear/side addition is 11.98 m.
A platform without main walls may encroach into the required rear yard setback 2.5 m if it is no closer to a side lot line than 1.22 m. The proposed rear porch platform encroaches 0.48 m into the required rear yard setback and is 1.09 m from the north side lot line.
A secondary suite is a permitted use provided each dwelling unit have a maximum of one (01) secondary suite. The proposed number of secondary suites in basement is seven (07) (emphasis added)
The minimum required setback from a side lot line is 1.2 m. The proposed basement rear/side addition is 1.09 m from the north side lot line.
25Requests to reduce setbacks and alter front walls to accommodate a secondary suite (variances 1, 2, 3, and 5) are relatively common, and may be approved if they have no significant adverse impact on neighbours. However, a request for permission to operate seven (7) secondary basement suites in a single-family home (variance 4) – is uncommon, and may have a significant adverse impact on neighbours.
26Mr. Prasad gave the following reason for his Appeal to allow 7 secondary basement suites (variance 4):
“The amount of suites is more than the zoning however it is within the parameters for secondary suites based on the total area. The general intent and Zoning By-law is maintained. The variances are minor. The variances are appropriate for the development of the land.”
27He did not provide any meaningful explanation of the reasons for his appeal. Merely stating that 7 suites are “within the parameters . . . based on the total area”, without further explanation does not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal, which would satisfy the requirement of S. 45 (17)(a)(1) of the Act.
28According to the City’s expert witness, Variance 4 would result in a density that is not compatible with the established and prevailing neighbourhood character.2
29The City’s expert witness also noted that the existing house and 7 self-contained dwelling units each featuring private washroom facilities are not connected to the municipal sewer. Instead, they rely on a private septic system, which has been the subject of multiple complaints concerning sewage run-off, as recently as March 2024.3
30Mr. Prasad did not arrange for an Expert Witness to provide an Expert Witness Statement in support of variance 4, or the other variances.
31Mr. McAuliffe’s oral representations described his expertise in building rather than land use planning matters. As Mr. McAuliffe should be aware, this is an appeal relating to planning matters under the Planning Act, not construction matters under the Building Code Act, 1992.
32Mr. McAuliffe raised the possibility that there might be at least one other single-family house with a number of secondary units similar to that proposed by Mr. Prasad. This possibility, raised at the beginning of the Hearing for the very first time, supports Ms. Gautam’s concern that the Applicant would engage in trial by ambush, rather than disclose the reasons for his opinion well in advance of the Hearing.
33Mr. McAuliffe suggested that the City was seeking a resolution that was unacceptable to Mr. Prasad, and/or beyond his ability to pay. While the TLAB is cognizant of individual circumstances, neither the acceptability to the Owner/Applicant nor his ability to pay are planning matters within the TLAB’s jurisdiction.
34I have considered the representations of the City and the Owner/Appellant. I am satisfied that the City’s concerns, particularly the concern that the Applicant failed to address the tests for a minor variance set out in the Act, are valid.
35Conversely, given the Applicant’s lack of expertise with the planning process in general, and lack of knowledge of key planning instruments, such as the Act and ZBL, I am satisfied that proceeding with a Hearing would lead to the same result as proceeding without a Hearing - the Appeal would be dismissed.
REQUEST FOR DISMISSAL BY PRELIMINARY MATTER RATHER THAN A MOTION
36In this case, the City proceeded by raising its request as a preliminary matter, without prior notice to the Owner/Applicant or the TLAB.
37By contrast, the City proceeded with a request for dismissal without a hearing by Notice of Motion in the 100 Green Bush Rd. case cited by Ms. Gautam.4 In that case, a Notice of Motion was filed several weeks in advance of the Hearing date, and gave the Owner/Applicant and the TLAB advance notice that a dismissal without a hearing would be the focus of at least the initial phase of the Appeal.5
38It would have been preferable for the City to have proceeded by Notice of Motion. That process would require the City to give notice of the City’s intentions in advance of the Hearing, and require the City to state the statutory provisions it is relying on.
39However, Ms. Gautam chose to proceed without a Motion, I will now consider TLAB’s legal position in view of the statutory provision concerning Dismissal without a Hearing set out in S. 45 (17), (17.1) and (17.2) of the Act.
40As the presiding Member in this matter, I have the same power to dismiss an Appeal without a hearing as the Ontario Land Tribunal under Section 45 (17) of the Act.6
41In the case at hand, I may (emphasis added) on my initiative, without a Motion from any Party, dismiss this Appeal if I am of the opinion that the reasons set out in the notice of appeal do not disclose any land use planning ground upon which the Tribunal could allow all or part of the appeal.7
42The seminal case that is cited in determining whether the reasons set out in an appeal disclose land use planning grounds upon which the TLAB (or a provincial Board or Tribunal) could allow all or part of an appeal is East Beach Community Assn. v. Toronto (City)8:
“The Board is entitled to examine the reasons stated to see whether they constitute genuine, legitimate and authentic planning reasons . . .What these particular provisions allow the Board to do is seek out whether there is authenticity in the reasons stated, whether there are issues which should affect a decision in a hearing and whether the issues are worthy of the adjudicative process”
43As set out in the Act, Mr. Prasad must satisfy the TLAB not only that there are valid planning grounds, but that they are sufficient for the TLAB to allow his appeal, in whole or in part.
44Mr. Prasad provided ‘boilerplate’ reasons for his appeal. However, he did not provide any sort of expert or lay witness statement with evidence in support of the reasons. When he made Mr. McAuliffe available at the Hearing, the Applicant admitted that he had no expertise in the planning tests which set out the core of TLAB’s jurisdiction in this appeal.
45Consequently, I find that the reasons provided by Mr. Prasad do not disclose any land use planning ground which could enable the TLAB to allow all or part of his Appeal.
46Before dismissing an Appeal, I am required to provide notice, and give the Appellant an opportunity to make representations on the proposed dismissal.9
47The City did not bring a Motion to dismiss without a hearing. Even if it had done so, I could have dismissed the appeal without holding a hearing on the City’s motion.10
48In this case, I have determined that the reasons set out in the Notice of Appeal do not disclose any land use planning ground upon which the Tribunal could allow all or part of the appeal. I have given the appellant, Mr. Prasad, and the Applicant, Mr. McAuliffe, an opportunity to make representations concerning the proposed dismissal. The City raised the issue of dismissal as a preliminary matter, and I need not hold a hearing on the City’s initiative. In summary, I have followed the legal requirements to enable me to exercise discretion to dismiss the Appeal without a Hearing.
CONCLUSION
49The last question I will consider is whether I should exercise my discretion and dismiss the Appeal in this case.
50Mr. Prasad is the owner of a large single-family house in the former municipality of Scarborough. According to the City, he constructed the illegal units no later than 2021, and they pose sanitary and fire risks. He has benefitted financially from these units since their construction. He did not apply to legalize them until he applied to the C of A in September of 2023.
51Mr. Prasad listed Mr. McAuliffe as his agent at the Committee of Adjustment, which refused the variances on October 28, 2023. However, according to Mr. McAuliffe, he did not provide a Witness Statement at the TLAB since he was not contacted by Mr. Prasad until the last minute, and did not appear at the TLAB hearing until I enquired about his participation
52Mr. McAuliffe is not knowledgeable about planning matters, which are the focus of the TLAB’s jurisdiction on appeals under the Act.
53Mr. Prasad was sufficiently familiar with the TLAB procedure to request two adjournments. However, he did not provide the documentation required by the TLAB Rules intended to result in an informed and effective Hearing.
54As a member of an administrative tribunal, I am not legally bound to follow previous decisions of the TLAB or other administrative bodies. However, I have reviewed the authorities provided by Ms. Gautam, and find Paul and 100 Green Bush Road to be persuasive.
55I find that 100 Green Bush Rd. decided recently by the TLAB Vice Chair Bassios, is similar to this case with respect to the failure of the Owner/Appellant to submit a Witness Statement or Document Disclosure. As Vice-Chair Bassios stated, in dismissing the Appeal without a hearing:
“The TLAB process is tightly bound to the provisions of the Planning Act and adherence to basic legal principles. The Appellant cannot be exempted from these fundamental requirements.”11
56I also note, again, the earlier case of Paul v. Toronto (City).12 In that case, decided by the Ontario Municipal Board in 2016, the Owner also retained Mr. McAuliffe as his agent. The Board (as it then was constituted) dismissed the Owner’s application for minor variances, stating that:
“This decision was made because the Applicant’s agent, Patrick McAuliffe, did not address the tests of s. 45 (1) of the Planning Act (“Act”). While making this decision, the Board was mindful that although the agent was not a professional planner, or a solicitor, preparations for a hearing before the Ontario Municipal Board (“OMB”) do anticipate that those preparations are cognizant of the tests of the Act . . .and are brought forward in testimony and in their general representations.”
57Consequently, I find that Mr. McAuliffe had personal knowledge of the need for him to have, or to acquire, knowledge of the planning tests set out in S. 45 (1) of the Act before accepting a retainer to represent Mr. Prasad in this Appeal concerning minor variances.
58In view of the facts and law set out above, I have concluded that I should exercise my discretion to dismiss the Appeal.
DECISION AND ORDER
59The Appeal is dismissed without a further Hearing.
R. Kanter
Panel Member
Footnotes
- Tab 10, Paul v. Toronto (City) OMB Case No. PL160097, July 21, 2016
- Expert Witness Statement of A. Castenada, par. 59
- Expert Witness Statement of A. Castenada, par. 68-72
- Tab 7, A. Nihan v. Arani Architecture re 100 Green Bush Road
- Rule 17
- City of Toronto Act, 2006 S. 115 (6)
- S. 45 (17)(a)(i) Planning Act
- [1996] O.M.B.D No. 1890
- S. 45 (17.1), Planning Act
- S. 45 (17.2), Planning Act
- Supra, note 4, par. 38
- Supra, note 1, par. 2