The Toronto Local Appeal Body (the “TLAB”) sets fixed and definite hearing dates without canvassing the availability of parties, their counsel and their witnesses. This can be a problem for parties because it can result in scheduling conflicts. It can also negatively impact whether a party can retain counsel of their choice.
The solution in most instances is for a party to bring a motion requesting an adjournment of the fixed and definite hearing date, which may include in some instances a request to adjourn certain filing dates. This type of motion can be heard in a written hearing. A review of the case law suggests that the TLAB is likely to grant such relief, especially if the motion is on consent.
The Fixed Hearing Date Rule
The requirement for fixed and definite hearing dates is contained at Rule 2.1 of Toronto Local Appeal Body Rules of Practice and Procedure (the “TLAB Rules”) and it states:
2.1 The Local Appeal Body is committed to fixed and definite Hearing dates. The Rules shall be interpreted in a manner which facilitates that objective. (emphasis added)
This rule appears to require strict adherence to fixed and definite hearing dates, but read in the context of other TLAB Rules, this requirement is somewhat moderated. For example, consider Rule 2.2 and Rule 2.10 of the TLAB Rules which state:
2.2 The Rules shall be liberally interpreted to secure the just, most expeditious and cost-effective determination of every Proceeding on its merit.
2.10 The Local Appeal Body 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.
The TLAB Rules also address request for adjournments, and in particular Rule 23.1 states:
23.1 Proceedings will take place on the date set by the Local Appeal Body and provided in the Notice of Hearing, unless the Local Appeal Body orders otherwise.
23.3 In deciding whether or not to grant a motion for an adjournment the Local Appeal Body may, among other things, consider:
(a) the reason for an adjournment;
(b) the interests of the Parties in having a full and fair Proceeding;
(c) the integrity of the Local Appeal Body’s process;
(d) the timeliness of an adjournment;
(e) the position of the other Parties on the request;
(f) whether an adjournment will cause or contribute to any existing or potential harm or prejudice to others, including possible expenses to other Parties;
(g) the effect an adjournment may have on Parties, Participants or other Persons; and
(h) the effect an adjournment may have on the ability of the Local Appeal Body to conduct a hearing.
TLAB Practice Direction No. 2
On 11 October 2017, the TLAB adopted Practice Direction No. 2: Default Format of Specific Motion Hearings. This practice direction provides as follows:
Unless otherwise directed by TLAB, where a party requests a date to file a Motion for a Written or Electronic Hearing (telephone or video conference) or the adjournment of a Hearing Date, or both, TLAB will treat and require the request to be conducted as a written Motion. The Party will be provided with a date for a Written Hearing motion for service. In the case of a Hearing Date adjournment request, the TLAB shall supply alternative hearing dates and the parties shall indicate their availability for those dates, in the event that the Motion may be granted. The default form of hearing for these two specific Motion requests will not be Oral, as specified in Rule 17.3. The timeline for Motion responses outlined in the Rules for Motion will apply. (emphasis added)
This practice direction has simplified the procedure for bringing a motion to seek an adjournment of a fixed hearing date because of a scheduling conflict. This procedure is further simplified by the use of the TLAB’s standard forms for a Motion (Form 7: Notice of Motion and Form 10: Affidavit).
Case Law
In practice, it appears in most instances, the TLAB is granting motions for adjournment arising from scheduling conflicts. Consider the following cases:
Hatziantoniou, Re, 2017 CarswellOnt 12344 (8 August 2017); Escala Designs Inc., Re, 2017 CarswellOnt 19503 (4 December 2017) - cases where the TLAB considered a written motion requesting an adjournment because of a scheduling conflict with counsel or an expert witness and the motion for adjournment was granted.
ATA Architects Inc., Re, 2017 CarswellOnt 12343 (9 August 2017) - a case where the TLAB considered a written motion requesting an adjournment from the City because assigned counsel and the expert witness were not available on the scheduled hearing date, having been assigned instead to an Ontario Municipal Board proceeding. The TLAB considered that where legal firms are fairly large, with many counsel who can step in to substitute for the responsible solicitor, tribunals usually require that another solicitor appear on the date scheduled for the hearing of the appeal. However, the TLAB accepted that in this instance the unavailability of the City’s representative prejudices the City’s case because the assigned lawyer and planner had existing familiarity with the matter. The TLAB granted the motion for adjournment.
Naghavi, Re, 2017 CarswellOnt 20087 (7 December 2017) - the TLAB considered whether an adjournment should be granted as a result of a notice of motion occurring well within the ‘Quiet Zone’, the period established in the TLAB Rules for no proceedings and for sober consideration of settlement issues, possible mediation and final case preparation. The TLAB granted the motion for adjournment. The motion was brought by the City on consent of the applicant party because the City’s planning witness was issued a summons to attend another TLAB hearing on the date of the subject hearing. An oral hearing on the motion was held. The adjournment was granted.
Johnston Litavski Ltd., Re, 2017 CarswellOnt 20909 (18 December 2017) - a motion brought by the applicant/appellant seeking an adjournment of the hearing because counsel had a scheduling conflict on the date of the hearing. The notice of motion was filed shortly after the issuance of the Notice of Hearing. One of the parties (unrepresented) would be out of the country for employment purposes following the original scheduled hearing date and therefore opposed the motion. This party was supported in argument by other unrepresented parties. The TLAB refused to grant the adjournment and provided the following reasons at paragraph 14 of its decision:
Considering the availability of parties when scheduling a hearing is arguably an issue of procedural fairness and natural justice, and involves an issue of the balance of convenience to the parties and the tribunal. Even though in this instance it is the availability of the solicitor for the party responsible for the appeal, other persons have the right to participate in TLAB appeals where possible, especially those with a demonstrable interest. Because it is many months yet until the date selected for the hearing, it does not seem unreasonable to this panel of the TLAB to require that the appellant, if it becomes necessary, select an alternative counsel. As well, there is the consideration that TLAB's mandate requires that hearing dates be expedited and advanced, so that administrative justice can be swiftly delivered.
Jiansheng Chen re, TLAB Case No. 17 258710 S53 32 TLAB (14 February 2018) - a motion brought on consent of all parties seeking an adjournment of the hearing because of a scheduling conflict for one of the expert witnesses. In addition, a request to requisite new exchange dates was made in order to facilitate potential without prejudice settlement discussions. The motion was heard by written hearing. The TLAB granted the relief requested.
Given the TLAB’s decisions to date on adjournment requests for scheduling conflicts, counsel or an expert witness should not necessarily turn away a matter because of a scheduling conflict on the fixed and definite hearing date. Instead, Rule 23.3 regarding an adjournment at the TLAB should be carefully considered by counsel, including whether an adjournment will cause or contribute to any existing or potential harm or prejudice to any parties and/or participants. While the cost of bringing such a motion for adjournment is always a consideration for a party, it is notable that the TLAB’s implementation of written hearings for adjournment requests has made it more cost effective for parties to seek an adjournment of a fixed and definite hearing date.
ABOUT THE AUTHOR
Raj Kehar is an Associate at Wood Bull LLP. Raj's practice involves all aspects of land use planning and development law. He currently represents both public and private sector clients. Raj sits on the Executive of the Ontario Bar Association's Municipal Law Section.