What’s Right for Me?
If you find yourself involved in a TLAB appeal, you will find there are two types of role to choose from: Party or Participant.
For most residents involved in a TLAB hearing, the choice is easy. You register as a Participant.
This means you have an opportunity to speak, under oath, during the hearing and to present evidence. Your evidence can be photos, PowerPoint presentations or you can just express your concerns about the development proposal.
As a Participant, you may be cross-examined by the lawyer representing the builder or developer.
A Party is a special kind of status at a TLAB hearing.
Parties are allowed to call witnesses. They can compel someone to testify by summons. They can participate in negotiations. They can cross-examine witnesses. Only Parties can give opening and closing remarks. And, in the event you wish to challenge a decision made by a TLAB member, only Parties can submit a Request for Review.
Normally, the builder will be named as a Party and the builder will be represented by a lawyer. Effectively, being a Party gives you the same kind of standing at a TLAB hearing as a lawyer.
Having said that, the best way to act as a Party is to do what the lawyers do.
Remember, if you are not registered with TLAB either as a Party or as a Participant, you will not have the opportunity to have your voice heard.
We believe that a key factor why residents lost so many appeals to the OMB is that they did not have Party status. They “didn’t have a seat at the table”.
This had two impacts.
Most importantly, by not having Party status, residents could not cross examine builders’ witnesses to uncover the fabricated “truths” they told. Builders could present very strong cases without having to be held accountable when facts got exaggerated or how they interpreted policies. Under these circumstances, the builders’ planning witnesses are allowed to submit what is called “Opinion Evidence” and they have to be registered as Expert Witnesses to be able to do so. We describe this further below.
Secondly, in cases where the proposed solution was mediation – in other words a negotiated agreement without having to resort to a full hearing – residents were excluded from the discussions. As a result, residents’ concerns were not taken into consideration.
In many instances, the City of Toronto has been a Party at OMB and TLAB hearings. Some residents might think that this means their interests are being protected by the City. However, the truth is that the City’s legal teams are there to ensure the outcome is in the best interests of the CITY – not the best interests of the residents. This misconception may be a reason why so few Long Branch residents assumed Party status at the OMB.
The LBNA was unable to assume the role of Party at TLAB until we were incorporated. This is a legal requirement for an organization to represent the interests of a group of unrelated people.
The first two Long Branch TLAB hearings – 38 Thirty Sixth and 9 Thirty Eighth – proceeded without the LBNA being directly involved. No residents were Parties for 38 Thirty Sixth, which we won for reasons we’ll describe in our next post. In the case of 9 Thirty Eighth, I elected to be a Party.
Given how 9 Thirty Eighth played out, had I not taken out Party status, the lot across the street from me would have been severed and two soldier houses would have been built. And three significant trees would be gone. Only by being a Party was I able to submit a Request for Review of the original decision.
Another Long Branch resident, David Godley, tried to submit a Request for Review on 9 Thirty Eighth, but his submission was rejected because he was a Participant/witness and not a Party.
There are some responsibilities that come with Party status.
The person or organization who is the Party basically quarterbacks the presentation of the case. Usually this means getting neighbours to register as Participants and to figure out what evidence needs to be presented as who will present it (and in some cases, the order of presentation). If a case goes to mediation, you will have to solicit and present the interests of the neighbours to realize an outcome that’s acceptable to them.
You have to dedicate the time to be present at all times during the hearing. This may mean using vacation time or sick days to be able to do so. The reality is that most of us have jobs and careers, so it’s a challenge to do so. But remember, it’s usually a one-off situation and it’s an important part of being active in your community.
You may have to file motions to change hearing dates or to call witnesses.
During the testimony of the builders’ witnesses, you should be taking careful notes of what is being said and do some fact-checking to prepare for cross-examination.
In the cases in which the LBNA has been a Party, several of the directors have been actively involved in appearing before TLAB tribunals on behalf of Long Branch residents. Judy Gibson, our co-chair, has done the lion’s share. None of us are trained lawyers, yet we managed to win 18 straight cases at TLAB.
Importantly, by conducting ourselves professionally and following the same rules and procedures as the lawyers, the LBNA, I believe, earned the respect of the TLAB chairs we appeared before. And the arguments we presented were respected and ultimately accepted.
There are two basic types of witnesses commonly used in TLAB hearings: Participant witnesses and Expert Witnesses.
We described above how Participants can play a role as witnesses.
The other primary type of witnesses are Expert Witnesses.
Expert witnesses are subject matter experts – that is, they have detailed knowledge and experience in some kind of field. In the case of TLAB hearings, they usually are Professional Planners and Arborists
Expert witnesses have to provide background information about their qualifications as experts in their fields – education, experience.. They also have to submit a form that states they will provide evidence that is non-partisan and objective and that they will provide opinion evidence only on matters that are related to their area of expertise.
Expert witnesses usually present factual evidence showing some degree of analysis. But, in their roles as Experts, they are entitled to offer Opinion Evidence – i.e., conclusions, observations that may not be 100% supported by the facts.
Only Expert Witnesses can submit opinion evidence for consideration by the tribunal. While Participants have and express opinions about a development project while under oath, those opinions are by far outweighed by those of the Expert Witnesses. And it is likely for this reason that, while Long Branch residents may have offered opinions at OMB hearings, those opinions were dismissed by the adjudicator.
In the coming weeks, we will be posting on other topics related to things we learned from TLAB. If you find this series of posts helpful, we could compile the posts into a white paper or e-book you could download for future reference. Let us know.