On May 3, 2017, Chapter 142 of the Toronto Municipal Code came into force, creating the Toronto Local Appeal Body (the "TLAB"). Most appeals from Committee of Adjustment decisions in Toronto will now be heard by the TLAB instead of the Ontario Municipal Board (the "OMB").
What is the TLAB?
The TLAB is an independent, quasi-judicial tribunal with all the powers and duties of the OMB in adjudicating matters within its jurisdiction.
Previously, the OMB was responsible for hearing appeals from Committee of Adjustment applications (including decisions relating to minor variances, consents for severance, and legal non-conforming uses and structures).
Appeal to the TLAB or the OMB?
As in the past, all appeals from Toronto Committee of Adjustment decisions (including non-decisions for severance applications) must be filed within the required timeframe, as outlined in the Planning Act. Note that the TLAB Rules of Practice and Procedure state that an appeal shall be filed "with the Secretary-Treasurer of the Committee of Adjustment for the City of Toronto".1
Any appeal filed before May 3, 2017 will stay with the OMB.
Any appeal filed on or after May 3, 2017 will go to the TLAB, rather than the OMB, unless:
- an appeal of the same Committee of Adjustment application has already been made to the OMB before May 3, 2017; or
- there is a related planning application appeal to the OMB (e.g., appeals of official plan amendment or rezoning applications, site plan referrals, etc.).2
Digital filing and exchange
An appeal to the TLAB is commenced by filing a Notice of Appeal (Form 1) along with the $300.00 filing fee. The Notice of Appeal must be on a CD/DVD in PDF format.
From that point onward, all documents must be filed, served, or exchanged by email. Every document in a TLAB proceeding, including visual evidence, must be provided in PDF format. Service, filing, or exchange of documents by email is effective on the day it is sent, unless sent after 4:30 p.m., in which case the document is deemed to have been sent on the following day.
For more details on the TLAB's digital requirements, refer to the TLAB website.
Forms, timelines, and disclosure
In an effort to streamline its procedures, the TLAB has adopted a regimented system of forms and deadlines. In comparison to the OMB process, the TLAB timeframes are generally less flexible and much more aggressive.
In addition, the TLAB requires parties to file and serve a copy of every document or relevant portions of public documents that they intend to rely on or produce in the hearing within 30 days after a Notice of Hearing is served. This is a significant new disclosure obligation that differs from previous practice before the OMB.
At the TLAB's business meeting held on May 3, 2017, the City of Toronto Legal Services and the Ontario Bar Association made submissions to the TLAB expressing concerns regarding the tight timelines, new document disclosure obligations, and other matters introduced in the draft Rules of Practice and Procedure. Despite these expressions of concern, the TLAB adopted the Rules of Practice and Procedure without substantial revision from the draft under consideration. The TLAB deferred consideration of the Ontario Bar Association's written submissions to its next meeting on June 14, 2017. Certain TLAB members noted that many of the concerns raised in the submissions could be addressed on an ad hoc basis by the TLAB at a later point in time.
It remains to be seen whether the TLAB's procedures are effective in securing timely outcomes, or whether these aggressive timelines impose a burden that is unduly onerous for parties and participants.
Some key forms and deadlines are summarized below:
Notice of Appeal (Form 1) must be filed with the Manager & Deputy Secretary Treasurer of the Committee of Adjustment for the City of Toronto within the time required under the Planning Act (within 20 days of the Committee's decision on a minor variance application, and within 20 days after the Committee gives notice of decision on consents for severance).
Notice of Hearing (Form 2) will be issued by the TLAB once a Case File has been opened, setting out the format, date, time and location of the hearing.
Applicant's Disclosure (Form 3) must be filed by the applicant within fifteen (15) days after the Notice of Hearing is served, disclosing any intended revisions or modifications to the application that was made to the Committee of Adjustment. The Rules do not expressly provide for any mechanism for further revisions or modifications to the application after this deadline.
Notice of Intention (Election) to be a Party or Participant (Form 4) must be filed within twenty (20) days after the Notice of Hearing is served.
Document Disclosure must be filed and served on all parties within thirty (30) days after the Notice of Hearing is served. Parties to a TLAB proceeding must provide a copy of every document or relevant portions of public documents they intend to rely on or produce in the hearing.
Witness Statements (Form 12), Participant's Statements (Form 13), and Expert Witness Statements (Form 14) must be filed and served on all parties within forty-five (45) days after the Notice of Hearing is served.
Notice of Motion (Form 7) must be filed and served on all parties at least fifteen (15) days before the motion is to be held, and at least forty-six (46) days before a hearing date (in light of the 30-day Quiet Zone described below).
Notice of Response to Motion (Form 8) must be filed and served on all parties at least seven (7) days before the motion is to be held.
Notice of Reply to Response to Motion (Form 9) must be filed and served on all parties at least four (4) days before the motion is to be held.
Notice of Motion (Form 7) for Costs or Review of Decision must be filed and served on all parties within thirty (30) days of the TLAB's decision.
30-day Quiet Zone
The TLAB Rules of Practice and Procedure institute a 30-day 'Quiet Zone' immediately before a scheduled hearing. During this time, no filings, motions, or formal actions (including TLAB-assisted mediation) are to be brought or taken by the parties, participants, or the TLAB, unless otherwise ordered by the TLAB.
According to the TLAB's Public Guide, the Quiet Zone period is intended for the parties to prepare for the hearing and to soberly consider the need to litigate the matters in issue. Parties are also encouraged to explore further settlement during this period, and in rare circumstances, the parties may request TLAB-assisted mediation. Hearing dates will remain fixed despite any settlement activity. Should a settlement be reached before or within the Quiet Zone, parties are asked immediately to advise TLAB staff of their intention to bring the matter forward as a settlement hearing.
Review or appeal of TLAB decision
Similar to decisions from the OMB, a party dissatisfied with the TLAB's decision has three avenues of further review or appeal:
- Request the TLAB to review its decision through the internal review mechanism outlined in Rule 31 of the Rules of Practice and Procedure (the narrow grounds for review are articulated in the Rules);
- Bring an application for judicial review to the Divisional Court; and
- Obtain leave for appeal to the Divisional Court on a question of law.