At that post I share my own account (there were many such accounts from many residents, when TLAB first held hearings regarding the properties) of what the streetscape looks like when you take a walk in the neighbourhood. At the post, I also share what ‘overbuilding’ signifies, in this particular neighbourhood, when you take such a walk.
At that post I refer, as well, to a recent Toronto Local Appeal Body (TLAB) decision regarding 11 Stanley Ave. in Mimico; click below to access the decision:
An excerpt from the decision regarding 15 Stanley Ave. reads:
I note that Ms. Nunes filed a Notice of Motion for Leave to Appeal to the Divisional Court on October 1, 2018 (Exhibit C) only two weeks after the Decision was issued and posted on the TLAB website. I agree with Ms. Sheasby-Coleman’s assertion in her Response that, “The lapse of time between the filing of the Applicant’s Notice of Motion for Leave to Appeal…on October 1, 2018 and enquiries made more than three months later by Mr. Cheeseman to confirm the basis for it to be filed in the first place, also strains credulity.” (Response, p. 1)
There were examples available upon inquiry from TLAB staff, or by a simple search of the TLAB website, of decisions issued by the Chair reviewed by other Panel Members. Of particular note is the review decision of Chair Lord written by former Member Laurie McPherson for 629 Rushton Road, dated October 2, 2018, which I highlighted parenthetically above.
Also, of note is a review request decision issued by Member Yao of another Panel Member, dated November 27, 2018, which would also have been known to TLAB staff.
As to the issue of the appointment of a TLAB Vice-Chair, the Affiant (Mr. Cheeseman) asserts that “Angela Bepple, a member of TLAB staff, advised me directly that only the Vice Chair reviews decisions of the Chair. I reviewed the TLAB website myself and confirmed the results of Mr. Sayeed’s research, as the website still indicated, at that point, that no Vice Chair had been appointed.”
In fact, the election of the Vice Chair was an item on the December 5, 2018, TLAB Business Meeting Agenda and the election and thereby appointment of the Vice Chair took place at that Meeting on December 5th. As a result, all TLAB staff were fully aware that a Vice Chair was officially in place as of January 1, 2019 and anyone inquiring would have been apprised of this fact.
I find it implausible that upon inquiry of TLAB staff that this information would not have been disseminated to applicants, parties or the general public.
Therefore, I must conclude that the Applicant’s explanation as to why they bypassed the TLAB Review Request process unconvincing and I agree with Ms. Sheasby-Coleman that that is further undermined by paragraph 16 (c) of the Applicant’s October 1, 2018 Notice of Motion for Leave to Appeal where it is argued that the questions of law raised in the Notice “…are of sufficient importance to merit the attention of The Divisional Court because they will raise issues that will affect…c. The jurisdiction of the TLAB with respect to, effectively, constituting its own appeals.” (|Exhibit C, p. 6)
I note that it is the responsibility of the Party, in this case Ms. Nunes, to determine whether to pursue one or both of the routes noted above, a Review Request of the Decisions and/or a ‘Leave to Appeal’. The issues in dispute and the remedies available may overlap. Since both routes are time limited and must be applied for, the decision can have significant consequences as evidenced in the subject matter before the TLAB.
The attitudinal approach of the courts, generally, has been to expect that a Party is to exhaust all available, effective remedies before convening formal consideration by the Divisional Court. In practical terms, this often involves delaying a properly constituted judicial consideration on a requested Leave Appeal application, pending the result of any administrative (TLAB) Review Request.
I find that Applicant’s eagerness to file a Leave to Appeal at the Divisional Court, which is still open, and to then file a Review Request after what I considered an unreasonable period of time, post deadline, to file, shows an attempt to, in colloquial terms, ‘ride two horses’, which although not inherently disallowed suggests more a failure to exercise the remedy of review available of the TLAB Rules.
Furthermore, I find that a Review Request that is largely six months past due of the requisite deadline for reasons that I do not find compelling and persuasive can be considered to be in ‘substantial compliance’ with the Rules as set out specifically in the Grounds for Review section of Rule 31.7.
Rather, I am of the opinion that this Request is an attempt by the Applicant to re-litigate the matters that were canvassed, and decided by the well-prepared and engaged presiding Member, Chair Lord, following a fulsome Hearing during which detailed evidence was provided and following vigorous cross-examination of numerous witnesses.
In my Review Request decision for 119 Harewood Avenue, which Ms. Sheasby- Coleman attached to her Response to the Applicant’s Request for Review, I wrote about this very point.
“With respect to the issue of whether the filing is in substantial compliance with the requirements of the TLAB Rules, I do not believe that an unperfected Request that is largely one week overdue for reasons that are not compelling and persuasive can be considered to be in ‘substantial compliance’ with the Rules…Moreover, I believe the integrity of the TLAB decision making process is impinged if Requests for Review are allowed without respect for the time frame and obligations of Rule 31.”
For the above reasons, I find that the request to permit the subject Review Request has not been justified. I do not believe that the Requestor has provided appropriate justification to warrant a rehearing of this matter and I am of the opinion that the TLAB has performed its function of addressing the consent requested.
As such, with respect to the second request from the Requestor that the TLAB undertake a review of Chair Lord’s Decision and allow a rehearing of the matter before a different TLAB Member, I find no reason to consider this request given the justification, above recited.
DECISION AND ORDER
The Request for Review is dismissed; the Decision of the TLAB dated September 14, 2018 is confirmed.