In August 2018, I was working in my front yard when someone approached me and asked me if I was Ron Jamieson. He then served me with legal papers indicating that the owner of 9 Thirty Eighth intended to appeal the TLAB Review Decision to Divisional Court. The City of Toronto was also named as a respondent.
The lawyers acting for the owner made a number of claims against me for the manner in which I submitted my Request for Review. Not being a lawyer, I had submitted my Request in the form of a notarized letter, not the formal Affidavit used by lawyers. They claimed I had submitted my Request one day late and that I had continued to file evidence after that.
They also claimed Errors in Law on the part of the TLAB Chair, Ian Lord, in conducting his review. They claimed Mr. Lord had conducted a re-hearing of the case on his own, without inviting input from any of the parties involved.
Finding a Lawyer
At this point, I had to make a decision – to cave in and not oppose this or to continue the fight. I chose the latter, but realized I would need a trained lawyer to represent me because I was not familiar with the processes used in Divisional Court and the lawyers for the builder were arguing points of law that I was not knowledgeable enough to even remotely consider representing myself.
Finding a lawyer was not easy. The required area of expertise was municipal and administrative law, not planning or real estate law and I found the number of lawyers who practice in these areas is small. As I contacted lawyers in these fields, some indicated they had no experience at Divisional Court, so did not feel comfortable taking on my case. Others indicated they tended to represent only builders and did not want to risk alienating their client base.
I probably spoke with more than two dozen lawyers before being referred to one who agreed to meet with me for a free one-hour consultation. He outlined the main issues and risks involved and proposed a retainer agreement. I accepted his retainer agreement.
The Appeal Process
My lawyer described the process of an Appeal to Divisional Court. First, there would be what is called a Motion Hearing at which a judge would hear arguments from both Parties and determine if there was merit in proceeding to the next step, which would be another hearing, but before a panel of three judges, who would make the final decision. If the judge in the motion hearing did not feel there was merit in the builder’s case, that would be the end of the matter.
My lawyer then contacted the builder’s lawyer to confirm he was representing me and requested copies of their filings with Divisional Court. These were sent to him via email and hard copies via courier. I asked if I could get a copy to review and my lawyer sent me the hard copies he had received since he had electronic copies of all the files he had received by email. What I got was a 6-inch-thick stack of documents in 4 volumes.
I went through one of the volumes – the Motion Record, which is basically a compilation of all the documents submitted to TLAB by the builder’s legal team. While the Motion Record contained evidence submitted by the builder’s legal team and the City, it contained none of the evidence presented by the residents. I don’t know if this was because none of the presentation material used by the residents was accepted as Exhibits or because I didn’t know I should have asked for them to be submitted and accepted as exhibits. In any event, the lack of hard evidence presented to the hearing by the residents could be construed as a serious oversight by not providing the Courts all of the evidence considered by Ms. Burton or the TLAB chair in making their decisions.
Going through the Motion Record, I came across a letter to the TLAB dated June 26, 2018 in which the lawyer for the builder asked for my Request for Review be denied. However, in writing his letter to TLAB, the lawyer for the builder did not copy me or the City’s legal team.
I found this letter especially disturbing. I was completely unaware that the builder’s lawyer had formally submitted objections to my Review Request. By failing to copy me on his letter, I was deprived of the opportunity to rebut and defend my actions.
And yet, in their Notice of Leave to Appeal, the document that outlines their statement of claim, they argued that they expected “an opportunity to provide a fulsome response” to my request. Had I received a copy of their letter, I certainly would have elaborated on my Review Request, and the City might also have wanted to submit their views had they been notified.
The Motion Hearing
In a January 31, 2019 Motion Hearing before a judge in Divisional Court at Osgoode Hall, the Judge, Justice Corbett, dismissed all but two of the builder’s claims. He felt there were arguments to be made about whether the manner in which the Review by TLAB was conducted – Procedural fairness is the legal term – and the Standard of Review Mr. Lord applied. This effectively allowed the appeal to move to the next stage, a hearing before a panel of 3 judges.
Subsequent to Justice Corbett’s decision, TLAB applied for and was granted what is called Intervenor status. Because the case centred on a decision made by the TLAB, obtaining Intervenor status allowed TLAB to present arguments at the final hearing so that they could effectively tell their side of the story.
The Appeal Hearing
The full hearing was scheduled for March 19, 2020, but postponed because of the outbreak of COVID-19. Instead, the full hearing took place via videoconference on February 28, 2022.
At this hearing, counsel for the owner reiterated what they had presented at the Motion Hearing; the validity of my Request for Review and Mr. Lord’s alleged re-hearing.
Counsel for the City presented arguments about the process Mr. Lord used to conduct his review, which was a detailed decision and analysis on his part. They also submitted that, while my Request for Review did not follow the format a lawyer would use, it met all the requirements of a Review submission and had been notarized by a lawyer.
Lawyers representing TLAB at the hearing also presented the same arguments and that Mr. Lord was following the process prescribed in TLAB’s rules to determine whether there were any irregularities in the process Ms. Burton followed. Mr. Lord had to listen to the entire recording of the hearing to determine if Ms. Burton had made any procedural errors. This was an appropriate method for a careful review of the hearing, not a re-hearing as alleged by the Builder’s lawyers.
Counsel for Mr. Jamieson defended the Review Request as following TLAB’s rules and that Mr. Jamieson duly notified all other Parties when he submitted his request.
Counsel also informed the Court that the lawyer for the builder had submitted a letter dated June 26, 2018 to the TLAB arguing against my Review Request. The lawyer’s letter was not shared with either of the other Parties – The City or me. My lawyer argued that this letter constituted a Motion and TLAB Rules required that a Party submitting a Motion must inform all other parties.
The Zoom hearing lasted a little over 4 hours.
On April 4, 2022, the Divisional Court released a 10-page written decision, ruling that the Chair of TLAB had acted appropriately and within the authority granted to him by the City of Toronto. His Review was thorough and did not treat any of the Parties unfairly.
When people learned about the decision, they usually said to me, “You must be very happy about this”. However, what I actually felt was more like relief. Relief that this was over. Relief that I didn’t have to worry any more about the outcome.
Over the past 4-6 weeks, there was a flurry of activity across the street at #9. A dumpster was there and people were going in and out of the house. The lawn was mowed. (When the owner had rented out to tenants, he hadn’t bothered to provide a lawn mower and told one of the tenants to cut the lawn with a pair of scissors. I took a photo and sent that to his lawyer.) The roof on the garage was repaired.
Two weeks ago, a sign went up in the front yard, indicating the property was up for sale.
Don’t feel sorry for the builder. He’s asking $1.8M and only paid $720K for it in 2014, so he’s made a lot of money while doing nothing to add value to the property.
We’re hoping that the next owner will see that it’s going to be a lot easier to build a single house on this lot than to try to sever and build two.