Stop the 938 Appeal

Long Branch Residents Believe Preservation of Neighbourhood  Character is Important

Some of you have already experienced your own legal battles with development and are wondering, what makes this case so special? Once you understand the facts, hopefully you will realize how important stopping this Leave to Appeal to Divisional Court is for all of Long Branch as well as all residents in neighbourhoods that are facing lot splitting. It’s a real "David and Goliath" story.

What is the Ask?

To fight this Leave to Appeal a motion written by the lawyer will cost $20,000.  Should this motion be successful and the Leave to Appeal to Divisional Court denied, it would serve as a precedent which would be shared by all Long Branch residents as well as residents in all the other Toronto Neighbourhoods  affected by lot splitting that results in new homes that don't respect the character of the neighbourhood, remove mature trees and rob their neighbours of sunlight, views and leave them in absolute shade.

Please read on for the full story.

What is 938?

938 is actually 9 Thirty Eighth Street. It’s a builder owned property in the south west corner of Long Branch. The property is on a street of 50 foot lots, is well treed with long time residents on both sides. The owner builder applied to sever the property, cut down mature trees and build two homes. The residents, the planning and urban forestry departments opposed the application, but it was approved at the COA. This decision was appealed to the Toronto Local Appeal Board (TLAB). One resident stepped forward and acted as a Party in this case.  

It is important to be clear, the residents supported building one new home, as long as the lot was not severed and the trees were protected.

As is typical, the owner builder hired a municipal lawyer and an expert planner - the "Goliaths".   

The details of the TLAB appeal can be read online, however it’s the decision on this case that is important. The severance was approved. For those with experience at the OMB, this would be a familiar outcome. A typical OMB decision under a TLAB name.

This is where the story gets interesting.

The resident who was a Party (one of our "Davids") found that according to the TLAB rules they were allowed to ask for a review of the decision by the Chair of TLAB. Which they did. The request was accepted and the case review was conducted by Ian Lord, the Chair of TLAB.

After the review, Chair Lord decided that the TLAB panel member was in error and overturned the decision. The result? The approval to sever was rescinded and the severance was refused via a 52 page decision. Our "Davids" won after all!

This decision was more than the residents could hope for. There was now two TLAB decisions against lot severing in Long Branch.  Our story should have ended here.   Unfortunately it doesn't.

The builder owner wasn’t going to have any of it. His response was to throw down a "Goliath" card and to serve the resident (one of our "Davids")  with a Motion for Leave to Appeal this decision to Divisional Court knowing full well the resident would have to hire a lawyer to respond.

What is a Motion for Leave to Appeal? A leave to appeal is a request from the applicant to HEAR this case at Divisional Court. They must provide a legal argument describing errors in points of law compelling enough to have the case accepted. This option was also available at the OMB however as the builders almost always won their cases, a Leave to Appeal didn’t happen that often. 

The resident (our "David") had two choices, not participate and let the new decision fall or hire a lawyer to fight. He chose to fight.

Fighting and winning has two benefits.

·        It will establish two cases instead of one against severances in Long Branch,

·        If the new TLAB decision prevails, serving Leave to Appeal to Divisional Court will cease to be a tactic for builders to exhaust residents financially and emotionally.

This pattern of builders challenging TLAB decisions they do not like has already started. Another leave to appeal to Divisional Court has since also been served to a resident in Mimico who won her appeal on her own against a lot severance.  She has also retained a lawyer to fight.

So here is a quick review of what has happened.

·        The COA went against planning and urban forestry recommendations and approved a severance at 9 Thirty Eighth Street.

·        The Appeal went to TLAB and was lost

-        The resident who was a Party asked for a review of the TLAB decision.

·        The TLAB Chair conducted a review, and overturned the decision. To be clear, the resident did not ask for this result. Although is thrilled about it.

·        The resident (our "David") was forced to hire a lawyer to preserve the TLAB decision to not sever the lot.

Why is this case so special?

·        The TLAB ruling against the severance will stand if the motion filed by our "David's" lawyer is successful.

·        The TLAB ruling against the severance was written by the TLAB Chair,  a highly respected lawyer in Municipal and Planning Law, who also holds a MSc. Pl., Planning. Therefore an error in law is not impossible, but not likely.

·        If successful, the decision will serve as precedent against severances in Long Branch AND serve as precedent against future motions for Leave to Appeal to Divisional Court not only in Long Branch but in other Neighbourhoods in Toronto.

·        The odds of winning are in our favour.

Lot splitting has been out of control in Long Branch. Long time residents who once enjoyed the cottage like feel of the area are now under siege with builders dividing lots, removing mature trees and building giant homes well above what is allowed under the bylaws, systematically removing the Character of this neighbourhood.

The fight in the form of an expensive appeal was brought to this resident, and he rose to the challenge to draw the line in the sand for all of Long Branch as a message to all builders. Lot splitting, removal of our tree canopy and stripping our Neighbourhood Character is not happening without a fight.

Please donate whatever you are able to help our "Davids" stop this Appeal.    Thank-you for your support.