Forest Range Developments (Re), 2025 ONTLAB 320

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9

Date: 2025-04-07

24 155346 S45 12 TLAB

Forest Range Developments (Re), 2025 ONTLAB 320

MOTION FOR COSTS DECISION AND ORDER

Issuance Date: April 7, 2025

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 Appellant(s): OPTIONS ARCHITECTS INC Property Address: 39 BURTON RD COA File No.: 23 161949 STE 12 MV (A0554/23TEY) TLAB Case File No.: 24 155346 S45 12 TLAB Motion Date(s): December 2, 2024 Deadline Date for Closing Submissions/Undertakings: February 24, 2025 Decision Delivered By: TLAB Panel Member B. Gallaugher

REGISTERED PARTIES AND PARTICIPANTS:

People Type	First Initial. Last Name	Representative
Appellant	FOREST RANGE DEVELOPMENTS	S. TAHRIRI
Appellant/ Appellant’s Legal Rep.	S. TAHRIRI
Party	J. D ALTMAN	A. STEWART
Party	B. A BLUMENTHAL	A. STEWART

INTRODUCTION AND CONTEXT

1A Motion for Costs was submitted by Ms. Amber Stewart (Amber Stewart Law) on behalf of her clients, J. D. Altman and B. A. Blumenthal (the opposing Parties).

2The Motion for Costs stems from a Hearing of an Appeal from a decision of the Committee of Adjustment regarding Minor Variance applications for the property municipally known as 39 Burton Road (subject property).

3The Toronto Local Appeal Body (TLAB) Hearing was held in two parts. The first part, dealing with one of the two buildings proposed to be constructed on the site (39B Burton Road), was held on September 16, 2024.

4The Appellant did not appear at the Hearing nor did it give notice to the TLAB or the other Parties that it was not intending to appear. Furthermore, the Appellant did not file any evidence or documentary material prior to the Hearing, as required by the TLAB’s rules.

5The opposing Parties, their lawyer and retained expert witness did attend the September 16th Hearing as scheduled, fully prepared to present their case.

6Despite the Appellant not appearing at the Hearing, the presiding Panel Member proceeded with the Hearing and the Parties in opposition were heard. That Hearing resulted in the TLAB issuing a Decision and Order, dated October 30, 2024, upholding the Decision of the Committee of Adjustment to refuse the variances.

7The second Hearing, for the other building proposed for the site (39A Burton Road), was scheduled for October 31, 2024. On October 22, 2024, the Appellant’s newly appointed legal representative, S. Tahriri, approached the opposing Parties to ask for an adjournment to allow her “the necessary time to ensure a well-prepared and fair process.”

8She also stated, “I understand the importance of this matter, and assure you that I am keen to move forward in the [sic] timely manner, while also ensuring that all Parties are fully prepared.”

9The opposing Parties did not consent to an adjournment without the submission of a motion explaining the nature of the delay and the Appellant’s lack of participation in the appeal process up to that point.

10No Motion was received by the TLAB on the Appellant’s behalf requesting an adjournment. Moreover, although the scheduled Hearing was nine (9) days away, the Appellant filed no documentary material or evidence in support of its case.

11The Appellant subsequently withdrew the Appeal the day before the Hearing was to be held. The reason given was that the Appellant had decided to pursue another type of building(s) on the property.

12Despite the short notice of the withdrawal of the Appeal, the TLAB decided to proceed with the scheduled Hearing but converted the Hearing into an abbreviated Proceeding to discuss with the Appellant’s Legal Representative and the participating Parties the details of the withdrawal of the Appeal by the Appellant.

13Ms. Tahriri was present at the Proceeding held on October 31, 2024, as were the opposing Parties and their legal counsel.

14Following that converted Hearing, the TLAB issued a Withdrawal Order, dated November 1, 2024, confirming the withdrawal of the appeal for 39A Burton Road.

15The Motion for Costs for 39 Burton Road was served on the TLAB by Ms. Stewart thirty-one (31) days after the issuance of the Final Decision and Order for 39B Burton Road. As a result, the Motion was stamped as ‘late’ in violation of Rule 28.2 of the TLAB’s Rules of Practice and Procedure (Rules).

16Rule 28.2 of the TLAB’s Rules states that “A request for costs may be made at any stage in a Proceeding but in all cases shall be made no later than 30 Days after a written decision is issued by the TLAB.”

17Rule 4.4 of the Rules provides that “the TLAB may on its own initiative, or, on a Motion by a Party, extend or reduce a time limit provided by these Rules on such conditions as the TLAB considers appropriate,” and Rule 4.5 states that “the TLAB may exercise its discretion under Rule 4.4 before or after the expiration of a time limit and with or without a Hearing.”

18In light of the fact that the Motion was served only one day late, causing a minimal and non-prejudicial delay in the process, the TLAB had the discretion, under Rule 4.4 of the TLAB’s Rules and Practice Direction 7, to amend the time allowed for the serving of the Motion for Costs to 31 days after the written decision was issued by the TLAB.

19Consequently, in an Interim Decision dated January 23, 2025, the TLAB ruled that the Motion for Costs would be allowed and be permitted to be served on the Parties and filed with the TLAB.

20To allow this Motion to follow the requisite process pursuant to the TLAB’s Rules, and to ensure fairness, the TLAB confirmed that the deadline for any Notice of Response to the Motion (Form 8), to be served on the Parties and filed with the TLAB, would be twenty (20) days from the date on which the Interim Order was issued by the TLAB.

21Likewise, the TLAB set the deadline for any Notice of Reply to Response to Motion (Form 9), which was to be served on the Parties and filed with the TLAB, to be ten (10) days after any Notice of Response to the Motion was served and filed.

22Despite the latitude given by the TLAB in the interest of fairness, the Appellant filed no Notice of Response to Motion by the revised and extended due date for filing Form 8.

23As a result, there was no need for the opposing Parties to file a Notice of Reply to Response with the TLAB.

24The opposing Parties jointly seek costs against the Appellant, Forest Range Developments Inc., in the amount of $22,691.86. This amount represents the cumulative costs incurred in respect of the appeal proceedings for 39A and 39B Burton Road and is in accordance with Rule 28.9 of TLAB’s Rules of Practice and Procedure.

25Ms. Altman, one of the opposing Parties, filed a sworn affidavit confirming that the amount claimed was jointly incurred by both her and Mr. Blumenthal (the other opposing Party) and represents 100% of the disbursements, 90% of their planner’s professional fees, and 60% of the legal fees paid by them. $1,000.00 had been included for the costs of preparing the Motion for Costs.

26She also affirmed that these costs were incurred directly and necessarily as a result of the Appellant’s appeals and that the Appellant’s unreasonable conduct necessitated the totality of the costs incurred in this matter.

THE LEGISLATIVE POLICY AND FRAMEWORK

27The TLAB has authority to order costs subject to its Rules of Practice and Procedure (“Rules”) as set out in Rule 28, below.

28.1 Only a Party or a Person who has brought a Motion in the Proceeding may seek an award of costs.

28.2 A request for costs may be made at any stage in a Proceeding but in all cases shall be made no later than 30 Days after a written decision is issued by the TLAB.

28.3 The Member who conducts or conducted the Proceeding in which a request for costs is made shall make the decision regarding costs.

28.4 Notwithstanding Rule 17.4 all submissions for a request for costs shall be made by written Motion and Served on all Parties and Filed with the TLAB, unless a Party satisfies the TLAB that to do so is likely to cause the Party significant prejudice.

28.5 Submissions for a request for costs shall address:

a) the reasons for the request and the amount requested;

b) an estimate of any extra preparation or Hearing time, and a breakdown of all associated rates, fees, and disbursements, caused by the conduct alleged to attract costs and specifically any of those matters outlined in Rule 28.6;

c) copies of supporting invoices for expenses claimed or an Affidavit of a Person responsible for payment of those expenses verifying the expenses were properly incurred; and

d) attach an Affidavit in which the Party swears the costs claimed were incurred directly and necessarily.

28.6 Notwithstanding the TLAB’s broad jurisdiction to award costs the TLAB is committed to an approach to awarding costs that does not act as a deterrent to Persons contemplating becoming a Party or continuing to be a Party to a Proceeding. In determining whether to award costs against a Party the TLAB may consider the following:

a) whether a Party failed to attend a Proceeding or to send a Representative when properly given notice, without giving the TLAB notice;

b) whether a Party failed to co-operate with others or the TLAB, changed a position without notice or introduced an issue or evidence not previously disclosed;

c) whether a Party failed to act in a timely manner;

d) whether a Party failed to comply with the TLAB’s Rules or procedural orders;

e) whether a Party caused unnecessary adjournments, delays or failed to adequately prepare for a Proceeding;

f) whether a Party failed to present evidence, continued to deal with irrelevant issues, or a Party asked questions or acted in a manner that the TLAB determined to be improper;

28.7 In all cases a Member shall not order costs unless the Member is satisfied that the Party against whom costs are claimed has engaged in conduct, or a course of conduct, which is unreasonable, frivolous, vexatious or in bad faith.

28.8 Costs bear interest at the same rate as provided in the Courts of Justice Act.

28.9 In no case, where a Party has brought a Motion requesting an award of costs against a Party or Parties in a Proceeding, shall an award of costs be greater than:

• 100% of disbursements

• 90% of planners’ or analogous professionals’ fees; and

• 60% of the fees of a legal representative.

SUMMARY OF THE POSITION OF THE OPPOSING PARTIES

28In the Notice of Motion for Costs and the sworn affidavit by Ms. Altman, the opposing Parties relate why they believe that an award of costs is warranted. I have summarized the arguments below and have categorized them under the possible grounds for the awarding of costs, as enumerated in Rule 26.8 above.

29Rule 26.8 (a) a Party failed to attend a Proceeding or to send a Representative when properly given notice, without giving the TLAB notice;

The Appellant did not appear at the 39B Burton Road Hearing on September 16, 2024, without any advance notice to the TLAB or the Parties. Neither the Appellant nor Ms. Tahriri offered an explanation at the time, nor since, as to the reason for this non-appearance.

30Rule 26.8 (b) a Party failed to co-operate with others or the TLAB, changed a position without notice or introduced an issue or evidence not previously disclosed; and Rule 26.8 (c) a Party failed to act in a timely manner;

The Appellant understood that Ms. Altman and Mr. Blumenthal were preparing for the appeals in earnest and had retained both a lawyer and an expert planning witness to represent their interests at the scheduled TLAB Hearings.

The Appellant’s legal representative, Ms. Tahriri, emailed the opposing Parties on October 22, 2024, requesting an adjournment of the October 31, 2024, Hearing for 39A Burton Road. This was the first communication received from the Appellant by the Parties since the appeals were filed on May 21, 2024, and Ms. Tahriri provided no explanation for the Appellant’s lack of communication in this regard.

When Ms. Stewart provided a response on behalf of Ms. Altman and Mr. Blumenthal indicating that her clients would not consent to the requested adjournment, the Appellant’s counsel stated ‘unequivocally’ that the Appellant intended to proceed with the hearing on the merits as scheduled. Yet, at 4:22 p.m. on the day before the Hearing, the Appellant’s counsel wrote to the TLAB and Ms. Stewart requesting the withdrawal of the appeal.

When the appeal for 39A Burton Road was withdrawn, Ms. Tahriri stated that the Appellant was taking this action as it had decided to pursue a different building(s) for their property. It is likely that this decision was taken earlier than the day before the Hearing, yet the appeal was not withdrawn until “the last minute.”

31Rule 26.8 (d) a Party failed to comply with the TLAB’s Rules or procedural orders; and Rule 26.8 (e) a Party caused unnecessary adjournments, delays or failed to adequately prepare for a Proceeding; and Rule 26.8 (f) a Party failed to present evidence, continued to deal with irrelevant issues, or a Party asked questions or acted in a manner that the TLAB determined to be improper

The Appellant had adequate time to prepare for the Hearing, and ought to have been prepared after the issuance of the Notice of Hearing for 39B Burton Road Hearing. The Appellant did not file any evidence in support of its proposal nor provide any reason for their failure to file any evidence or documentary disclosure in support of the appeals.

The Appellant disregarded all TLAB Rules and Procedural Order deadlines, did not comply with the Rules at any point, nor did it seek relief from compliance with the Rules to permit late filings.

32The opposing Parties contend that their conduct throughout these appeals has complied with all the TLAB’s Rules of Practice and Procedure. However, as a result of Forest Range Development’s actions or lack thereof, they have incurred significant expense in engaging a land use planner and counsel who attended at the hearing, as there was no indication that the Appellant/Appellant did not intend to proceed with the Appeal.

33Furthermore, they assert that the Appellant’s conduct in failing to proceed with their appeal or to file any materials in support of their appeal can only be characterized, at a minimum, as showing disrespect for the TLAB’s Rules and process, but more significantly, should be viewed as seriously deficient. The Motion contends that the Appellant made no efforts to pursue the appeals with any reasonable diligence that would be expected of an Appellant. The Moving Parties argue that there was not a “one-time” instance of failure to comply with the Rules, but rather a pattern of behaviour perpetuated at every stage in the appeal process. The opposing Parties submit that the Appellant’s course of conduct was unreasonable, frivolous, vexatious, and undertaken in bad faith. Finally, the Moving Parties assert that the Appellant demonstrated a total disrespect for the appeal process and wasted the time and resources of the TLAB and the opposing Parties.

34The opposing Parties’ arguments were not contested by the Appellant.

ISSUES AND ANALYSIS

35The matters in issue on this Motion are

i) whether costs should be awarded, and

ii) if so, in what amount?

36On the first question, the TLAB applies great restraint when considering whether to grant an award of cost. As an administrative tribunal, the TLAB has a duty to ensure access to justice for all members of the public, whether they are Appellants appealing a decision of the Committee of Adjustment or members of the public opposing such an appeal. This commitment to facilitate access to justice is clearly outlined in Rule 28.6 of the TLAB’s Rules. Parties who abuse this process do so at their own peril.

37I find the identification by the opposing Parties of the many ways the Appellant’s behaviour was consistent with the grounds provided in the TLAB’s Rules for the awarding of costs very compelling, and I accept their arguments.

38I find particularly egregious the Appellant’s lack of attendance at the September 16, 2024, without prior notice and with no explanation given.

39Also telling is the abrupt withdrawal of the appeal for 39A Burton Road at the last minute, again without warning and after assurances by Ms. Tahriri that the Appellant intended to continue with the process.

40In my view, the conduct of the Appellant is consistent with all the grounds for granting costs enumerated by Rule 26.8 (a) to (f) above. There can be no question that the Appellant, after launching an appeal of the Committee of Adjustment’s decision, decided to not appear at a scheduled hearing, did not act in a timely manner, did not prepare or present any evidence, and did not follow the TLAB’s Rules in any practical manner. I agree with the Moving Parties that it showed an overall disrespect for the process, the other Parties and the TLAB itself, and I find that an award of costs is warranted.

41Regarding the second question, every property owner has the right to apply to the City for approval of variances to the Zoning By-law needed to permit the construction of such buildings on their property as they see fit. Every other resident of the City has the right to know about such variance applications and to make their views regarding those proposed variances known to those who will make the decisions.

42The City has established a process to allow people to exercise these rights. It starts with an application by the property owner to the Committee of Adjustment. Neighbours are notified and may state their case, either in support of or against the variances requested. The adage holds that a variance is a privilege and not a right.

43If the Committee of Adjustment refuses the application for variances, the Appellant has the right to appeal to the TLAB and those opposing or supporting the variances can present their case to the same body, in an open hearing.

44In this case, the Committee of Adjustment refused the variances and the Appellant exercised its right and appealed the decision to the TLAB. In response, two Parties (Altman and Blumenthal) in opposition to the appealed variance application exercised their right to become Parties to the hearing at the TLAB.

45Parties on both sides will often devote considerable time and money to retain lawyers and expert planning witnesses to put forward their case most effectively. In this instance, the Appellant evidently decided to essentially abandon its appeal soon after filing the application to the TLAB but did not inform the other Parties or the TLAB. The Appellant did not prepare its case and failed to appear at the first hearing, and ultimately it withdrew the appeal at the end of the process.

46The opposing Parties, unaware that the Appellant was not going to pursue its case, did what any responsible Party would do: spent the time and resources necessary to prepare and present an effective case supporting their opposition to the variances.

47The Appellant would have had to decide that it was not intending to pursue its appeal by the deadline for filing of witness statements, at the latest. If it had applied to withdraw its appeal at that time some expense could have been saved.

48In any event, it appears that the bulk of the money committed by the opposing Parties to preparing for the Hearing would have been spent by the submission due dates for such documents as the filing of an expert witness statement.

49Unfortunately, when the Appellant failed to appear at the first hearing, it became clear to the Parties and the TLAB that the Appellant was not participating in the process. By this time, however, the opposing Parties had spent the money required to prepare their case.

CONCLUSION

50I find that the Appellant was derelict in its duty to inform the opposing Parties, as early as possible, that it did not intend to follow through on its appeal. At the latest, that would have been at the deadline for submitting its witness statement. The Appellant should have withdrawn its appeal at that time, reducing the overall cost of further preparation and of presenting the case. I find that the Appellant did not do this.

51The nature of this process requires Parties to spend time and money to protect their interests, proceeding in good faith, even without certain knowledge that the product of their preparations will be needed.

52Even if the Appellant had decided, on the day of the deadline for submitting witness statements, to withdraw its Appeal, much of the opposing Parties’ money would have already been spent.

53Given that the opposing Parties would have spent a good portion of their costs prior to the deadline for the submission of witness statements, I am reducing the costs award request by one-third. Therefore, the award Order to be issued by the TLAB will be $15,128, to be split equally between the two opposing Parties.

DECISION AND ORDER

54The TLAB orders that costs of $15,128 be paid forthwith to the opposing Parties, Ms. Altman and Mr. Blumenthal, in equal parts (i.e. $7,564 to each). Interest will commence to run one month after this decision is issued, in accordance with the Courts of Justice Act, to give the Appellant time to pay without incurring interest.

B. Gallaugher Panel Member