Party to s. 38(1) appeal has no independent right to put forward evidence unless necessary for case

Administrative law - Practice and procedure - Appeal

Plaintiff corporations (Craft) purchased air rights above rail corridor to build mixed-use development. There was no opportunity during City of Toronto's (City) consultation process for any interested party to call expert witnesses or to cross-examine City's experts. City adopted Official Plan Amendment 395 to allow for “Rail Deck Park” to which two appeals were filed. Local Planning Appeal Tribunal (LPAT) by Local Planning Appeal Act (Act), created new appeal system pursuant to s. 38(1) of Act for cases relating to range of municipal planning, zoning bylaws, sub-division plans, consents and minor variances and other issues. Pursuant to s. 38(1) of Act, only issue to be decided on these “First Appeals” was whether City’s decision was consistent with provincial policy and conformed to provincial plan and applicable official plan. LPAT ordered five individuals to attend as witnesses and Craft sought to cross examine those witnesses but parties disputed whether LPAT had jurisdiction to direct witnesses to attend oral hearing and extent, if any, to which parties could cross-examine witnesses before or at such hearing. Only remedies available to LPAT were to dismiss appeal or remit matter to City to render new decision. LPAT issued written decision by which it sought statutory stated case to have panel of Divisional Court answer three questions including whether principles of natural justice and procedural fairness allow parties on hearing pursuant to ss. 38(1) and (2) of Act, opportunity to ask questions of witness called and examined by tribunal and if yes, were questions limited to matters arising from questions asked by tribunal and where tribunal directs production of affidavits pursuant to ss. 33(2)(c), does limitation in s. 42(3)(b) of Act prevent cross-examination of affiant before hearing and introduction of cross-examination transcript in hearing and if not, can evidence obtained in cross-examination be referred to in submissions in hearing. Section 33(2) of Act empowered LPAT to require party or non-party who made submission to produce evidence for examination by LPAT and to require party to produce witness for examination. LPAT may also require attendance at hearing of any person whose affidavit or declaration formed part of record and tribunal may examine any such person and may require that any party produce relevant documentation and answer questions related to documentation. Act contemplates active intervention of LPAT that departs from traditional quasi-judicial function and significantly reduced and changed involvement of participants in any proceeding. Procedural rights of party to appeal governed by principles of natural justice but Act confers investigative role on LPAT. Notwithstanding investigative role, LPAT exercises statutory power of decision that engages Statutory Powers Procedure Act and rights to procedural fairness can be expressly overridden or limited by Legislature. LPAT's unique role requires that it can inform itself of issues raised. Section 42(3)(b) of Act, which only applies to adducing evidence at oral hearing, does not address procedure by which record is developed prior to any oral hearing of s. 38(1) appeal for consideration LPAT at such hearing. Party to s. 38(1) appeal has no independent right to put forward evidence unless such evidence is necessary to make its case, which determination is to be made in first instance by LPAT. LPAT has independent right to examine witnesses of parties, including their expert witnesses.

Craft v. City of Toronto (2019), 2019 CarswellOnt 9439, 2019 ONSC 3636, Linhares de Sousa J., Wilton-Siegel J., and Thorburn J. (Ont. Div. Ct.).

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