2706463 Ontario Inc v. Long Branch Neighbourhood Association, 2023 ONTLAB 112

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9

Date: 2023-07-05

22 150409 S53 03 TLAB 22 150410 S45 03 TLAB 22 150412 S45 03 TLAB

2706463 Ontario Inc v. Long Branch Neighbourhood Association, 2023 ONTLAB 112

REVIEW REQUEST ORDER

Issuance Date: July 5, 2023

PROCEEDING COMMENCED UNDER Section 53, subsection 53(19), Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")

Appellant(s): 2706463 ONTARIO INC

Applicant(s): EKP DESIGNS INC

Property Address: 24 Fairfield Ave

COA File No.: 20 232829 WET 03 CO (B0055/20EYK) 20 232831 WET 03 MV (A0515/20EYK) 20 232832 WET 03 MV (A0516/20EYK)

TLAB Case File No.: 22 150409 S53 03 TLAB 22 150410 S45 03 TLAB 22 150412 S45 03 TLAB

Hearing Date(s): October 5, 2022, December 8, 2022, January 5, 2023, February 24 & 27, 2023, March 10, 2023

Decision Delivered By: TLAB Chair D. Lombardi

REGISTERED PARTIES AND PARTICIPANTS:

People Type	First Initial. Last Name	Representative
Applicant	EKP DESIGNS INC.
Appellant	2706463 ONTARIO INC.	R. Cheeseman
Expert Witness	S. Qi
Expert Witness	D. A. White
Party (TLAB)	J. Gibson	Long Branch Neighbourhood Association (LBNA)
Expert Witness	H. Savinsky	LBNA
Witness	M. Davidson	LBNA
Participant	C. Mercado	LBNA
Participant	A. Choles	LBNA

REVIEW REQUEST NATURE AND RULE COMPLIANCE TO INITIATE

1On May 5, 2022, the Committee of Adjustment (COA) refused applications for consent to sever 24 Fairfield Avenue (subject property) into two lots as well as associated variances, seven (7) for each resulting lot, fourteen (14) in total, to permit the construction of two (2) residential dwellings on the resulting properties.

22706463 Ontario Inc., the owner of the subject property, appealed the COA’s decision to the Toronto Local Appeal Body (TLAB); the appeal matter before the TLAB consumed six (6) non-consecutive Hearing days¹.

3The Long Branch Neighbourhood Association (LBNA) appeared in opposition to the proposal on the grounds that in their opinion, if approved, the applications would result in two undersized lots and two single detached dwellings which would not fit the character of the neighbourhood.

4After hearing the appeal, the presiding TLAB Member (Member Yao) issued a Final Decision and Order (Final Decision) on April 26, 2023, dismissing the appeal.

5On May 26, 2023, Russell Cheeseman (Requestor), the Owner’s legal representative, filed a Request to Review (Request) the Final Decision with the TLAB as is permitted under the TLAB’s Rules and Practice and Procedure (Rules).

6The Review Request requests that the TLAB cancel the Final Decision issued by Member Yao and direct a ‘de novo’ Hearing before a different TLAB Member pursuant to Rule 31.16 of the TLAB’s Rules.

7An administrative screening was completed by TLAB staff and the Request was deemed to be compliant.

THE LEGISLATIVE AND POLICY FRAMEWORK

Rule 3.0 (After December 2, 2020)

31. REVIEW OF FINAL DECISION OR FINAL ORDER

A Party may Request a Review

31.1 A Party may request of the Chair a Review of a Final Decision or final order of the TLAB.

Chair May Designate Any Member

31.2 The Chair may in writing designate any Member to conduct the Review and make a decision in accordance with the Rules.

Review Request does not Operate as a Stay

31.3 A Review shall not operate as a stay, unless the Chair orders otherwise. A Party requesting that a Final Decision or final order be stayed shall do so at the same time the request for Review is made.

No Motions Except with Leave

31.4 No Motion may be brought with respect to a Review except with leave of the Chair. Deadline for, and Service of, Review Request

31.5 A Review request shall be provided to all Parties and the TLAB by Service within 30 Days of the Final Decision or final order, unless the Chair directs otherwise.

Contents of a Review Request

31.6 A Party’s request for Review shall be entitled “Review Request” and shall contain the following:

a) a table of contents, listing each document contained in the Review Request and describing each document by its nature and date;

b) an overview of the Review Request not to exceed 2 pages that identifies the grounds listed in Rule 31.17 that apply;

c) if the Review Request includes grounds based upon Rule 31.17 (c), a list of all alleged errors of fact or law;

d) a concise written argument contained in numbered paragraphs. The Review Request shall provide, avoiding repetition, the concise written arguments regarding each listed matter from Rule 31.17 in the same order and include the following:

i. the applicable section of the Planning Act or other legislative basis, if any, for the argument advanced;

ii. the wording of the applicable policy, By-law or authority, if any, in support of the argument advanced;

iii. the applicable transcript or other evidence and exhibit attachments, if any, in support of the argument advanced;

iv. a clear demonstration of how in the case of grounds asserted under Rule 31.17 c), d) and e), each would likely have resulted in a different Final Decision or final order;

v. copies of the referenced case law and authorities; and

vi. a statement as to the requested remedy.

Review Request not to Exceed 20 Pages

31.7 Excluding the table of contents, case law and transcripts, by-laws, exhibits and other supporting Documents, the Review Request shall not exceed 20 pages, double spaced, and written in 12-point font.

Transcripts

31.8 If any Party wishes to refer to any oral evidence presented at the Hearing and if that oral evidence is contested and a recording thereof is available, the relevant portion of the proceeding shall be transcribed and certified by a qualified court reporter and provided to all Parties and the TLAB by Service forthwith and at that Party’s sole expense.

Administrative Screening

31.9 The TLAB shall, upon the filing of a request for Review, review it for compliance and advise the Parties if:

a) it does not relate to a Final Decision or final order; or

b) it was not received within 30 Days after the Final Decision or final order was made, unless the Chair directs otherwise; or

c) it failed to provide the requisite fee.

Response to Review Request

31.10 Despite Rule 31.9, if a Party needs to respond to the Review Request the Responding Party shall by Service on all Parties and the TLAB provide a Response to Review Request no later than 20 Days from the Date of Service pursuant to Rule 31.5, unless the Chair directs otherwise.

Contents of a Response to Review Request

31.11 A Responding Party’s response to Review Request shall be entitled “Response to Review Request” and shall contain the following:

a) a table of contents, listing each document contained in the Response to Review Request and describing each document by its nature and date;

b) an overview of the Response to Review Request not to exceed 2 pages that contains specific reference to the Review Request’s overview;

c) a concise written argument contained in numbered paragraphs, giving a response to each argument in the Review Request, and include the following :

i. the applicable transcript or other evidence and exhibit attachments, if any, in support;

ii. any other applicable legislation, policy documents, By-laws or other material that is not provided for in the Review Request; and

iii. any other applicable authorities and copies thereof; and

iv. a statement as to the remedy requested.

Response to Review Request not to Exceed 20 Pages

31.12 Excluding the table of contents, case law and authorities, transcripts, by-laws, exhibits and other supporting Documents, a Response to Review Request shall not exceed 20 pages, double spaced, and written in 12-point font.

Responding Party Not to Raise New Issues

31.13 A Responding Party shall not raise any issues beyond those issues raised in the Review Request.

Reply to Response to Review Request

31.14 If the Requesting Party needs to reply to a Response to Review Request, that Party shall provide by Service on the Parties and the TLAB a Reply to Response to Review Request not to exceed 5 pages, double spaced, and written in 12-point font and no later than 5 Days from the Date of Service pursuant to Rule 31.10, unless the Chair directs otherwise.

Contents of a Reply to Response to Review Request

31.15 A Reply to Response to Review Request shall contain the following:

a) a reply to facts, matters and Documents raised in the Response to Review Request;

b) list and attach the Documents used in the Reply to the Response to Review Request relating to those matters addressed in the Reply, including any case law or authorities raised in support.

Chair Authority

31.16 Following the timeline for the Service on all Parties and the TLAB of any Review Request, Response to Review Request and Reply to Response to Review

Request, the Chair may do the following:

a) seek further written submissions from the Parties;

b) confirm the Final Decision or final order and dismiss the Review Request, with reasons;

c) cancel the Final Decision or final order, with reasons, and, where appropriate, direct a de novo Oral Hearing before a different TLAB Member.

Grounds for Review

31.17 In considering whether to grant any remedy the Chair shall consider whether the reasons and evidence provided by the Requesting Party are compelling and demonstrate the TLAB:

a) acted outside of its jurisdiction;

b) violated the rules of natural justice or procedural fairness;

c) made an error of law or fact which would likely have resulted in a different Final Decision or final order;

d) was deprived of new evidence which was not available at the time of the Hearing but which would likely have resulted in a different Final Decision or final order; or

e) heard false or misleading evidence from a Person, which was only discovered after the Hearing, but which likely resulted in the Final Decision or final order which is the subject of the Review.

No Further Review Permitted

31.18 A Review decision may not be further reviewed by the TLAB.

CONSIDERATIONS AND COMMENTARY

8Rule 31 of the TLAB’s Rules has been set out with specific requirements regarding the form and content of the submitted materials in support of a Request for Review, and has been structured to facilitate findings with respect to Rule 31.17 ‘Grounds for Review’.

9These grounds are the only basis upon which an Appeal Decision may be set aside, and a new Hearing ordered.

10Before commencing a Review of the grounds asserted in the Request, a reminder of the purpose and parameters of Rule 31 is helpful. These comments are general propositions to be kept in mind in consideration of any Review.

• A Review Request is not afforded as an opportunity to re-litigate or reargue a point that was made but not favourably received in the Decision.
• In writing a decision, a TLAB Member must consider opinion and evidence, and decide what weight to ascribe to each, in coming to his or her conclusions.
• The Decision must provide its basis for coming to the conclusion it did, but it does not require an acknowledgement and repudiation (or concurrence with) every argument made, and not received as desired, by the requesting party.
• The Grounds for Review mandated under TLAB Rule 31 set a consequential standard for findings, that the reasons and evidence are compelling, and specifically Rule 31.17 c) that an error of law or fact has been made which would likely have resulted in a different decision or order.
• The task of the Reviewer is not to assess the “correctness” of the Decision, nor to take into consideration what another Adjudicator may or may not have decided having been presented with the same evidence in this case. The task of the Reviewer is to establish whether there are arguable, definable errors, and, as well, whether they are of a nature (i.e., are of such significance) that could meet the threshold established in Rule 31.17.
• The basis for a decision must be understood and, preferably, written in plain English. A Decision must reflect a suitable basis for its conclusions, taking into account relevant considerations and applying the law and policy germane to the TLAB’s mandate, including its own deliberations.

11I note that it is incumbent on the presiding Member who heard the matter to listen to the evidence and make decisions based on the application of law, policy, evidence, and the public interest. Nevertheless, a Member’s decision is based on that Member’s discretionary perception of the evidence and relevant considerations.

12It is with these considerations in mind that I’ve read and reread the Member’s Final Decision and Order and the Request itself.

13I have reviewed the submissions filed in this matter as to the main TLAB hearing events which consumed six (6) full Hearing days, Member Yao’s April 26, 2023, Final Decision, as well as his previous Motion Decision in this Appeal matter dated February 21, 2023, the authorities referenced, and the DAR recordings of the Hearing.

14I have also reviewed the Review Request submissions filed with the TLAB on behalf of the Owner by Mr. Cheeseman, which consists of some ninety-nine (99) pages and nine (9) Tabs, including an Overview of the Review Request.

15Finally, I also reviewed the LBNA’s Response to Review Request (Response), filed with the TLAB on June 15, 2023, under Rules 31.10 – 31.12 of the TLAB’s Rules. The submission is an extensive document consisting of some 161 pages, and includes an Overview of the Response as well as case law in the form of three (3) previous TLAB decisions: 65 Fortieth St.; 15 Stanley Ave.; and 65 Fortieth St. (Review Request Decision).

Review Request Grounds

16It is important that the reviewer applies the language of the Rule and not enter into a set of considerations that depart from the responsibilities of a Review.

17A Review is not, as above stated, a re-hearing of the matter to consider whether the review might have come to a different conclusion. Rather, it is a canvass as to whether any of the statutory grounds afforded a review under the Statutory Powers Procedure Act (SPPA) are established.

18Having regard to Rule 31.17, above, the Requestor cites as a basis for consideration paragraph 31.17 c).

19In this regard, the full consideration must be stated and applied which is as follows: namely, whether the Member:

“31.17 c) made an error of law or fact which would likely have resulted in a different Final decision or Order.” (emphasis added)

20This standard implies that the reviewer must not only be apprised by the Review Request of a clear error of law or factual matter of significance but also be satisfied that if an error occurred, it would likely have led to a different decision.

21In his Overview in the Review Request, Mr. Cheeseman sets out the basis for the Request and the rationale as to why the Owner of the subject property asks that the Member’s Final Decision and Order of April 26, 2023, be reviewed:

• The Appellant and Owner of the subject property applied to the City of Toronto (City) for a consent and relief from certain provisions of the City’s harmonized Zoning By-law569-2013, to sever the property into two lots as well as seven (7) variances for each resulting lot, to permit the construction of a single residential dwelling on each lot.
• The variances requested are identical for each newly created lot.
• The COA refused the applications and the Owner appealed those decisions to the TLAB.
• Following six (6) Hearing days, Member Yao issued a Decision on April 26, 2023. In that Decision, the Member held that the consent and requested variances should be refused on the grounds that:
  • the consent did not meet the test under s. 53(12) of the Planning Act (Act), R.S.O. 1990. C. P. 13, as amended; and,
  • that the variances requested were not minor, contrary to s. 45(1) of the Act.

Error of Law or Fact

22In the Review Request, Mr. Cheeseman asserts the following:

“In relying upon the non-expert evidence of a lay witness to address expert evidential matters, defining the neighbourhood area in a way that does not accord with the guidelines set out in the Official Plan (OP), and adopting a definition of Floor Space Index (FSI) that does not accord with the standard as set out by an urban planning profession (sic), the Member made errors of fact and law in his Decision.”²

23In asserting the above, the Requestor identifies the following three separate issues that must be addressed individually: relying on non-expert, layperson evidence; delineating a geographic neighbourhood; and, defining FSI.

24For this Review Request Decision, I will not address the three matters raised by Mr. Cheeseman in the order they are listed above. Instead, I will discuss the error asserted regarding the presiding Member’s reliance on non-expert layperson evidence after I’ve discussed the other two issues.

A. Defining a Geographic Neighbourhood

25The first alleged error of law raised by Mr. Cheeseman relates to the definition of a “neighbourhood” and the adoption by the Member of a definition of ‘neighbourhood’ as determined by Christine Mercado, the President of the LBNA, and a witness who gave testimony in the appeal.

26Mr. Cheeseman asserts that the definition put forward by Ms. Mercado delineates “the neighbourhood area in a way that does not accord with the guidelines set out in the Official Plan”³

27He contends this definition is focussed “…solely on ‘zoning’ as being key to the determination of the delineated neighbourhood under the OP, but failed to recognize that “zoning” is only part of this criteria under s. 4.1.5 of same.”⁴

28Furthermore, he submits that Ms. Mercato’s neighbourhood was limited to that within the Long Branch neighbourhood, whereas the Owner’s expert planning witness, Mr. Qi considered both Long Branch and New Toronto to be in the same Neighbourhood.

29Additionally, he suggests that Ms. Mercado’s “unshakeable position” was that proposals within the historic neighbourhoods had such intrinsic differences to those of other neighbourhoods, they could not be compared.

30He maintains that the s. 4.1.5 requires that a ‘geographic neighbourhood’ should be delineated by not only zoning but also by “the prevailing dwelling type and scale, the lot size and configuration, the street pattern, pedestrian connectivity, and the natural and human-made dividing features.”⁵

31In delineating her geographic neighbourhood boundaries “primarily by zoning,” he asserts that Ms. Mercado excluded properties such as the seven-storey apartment building across the street from the subject property, as well as a number of properties on the other side of Fairfield Avenue, contrary to the policies in the OP.

32Secondarily, he asserts that Ms. Mercado utilized an additional delineator to define the boundaries of her neighbourhood study area, which she described as “pedestrian connectivity.”

33Mr. Cheeseman submits that she describes ‘pedestrian connectivity’:

“…as being the standard way in which an individual would enter and exit the neighbourhood and did not include any part of the area in which the zoning differed from that of the subject property, areas which she determined to be difficult to reach on foot or by car, or areas that a person commuting for work or recreation in the area would likely visit on an everyday basis.”⁶

34He asserts that this limitation of the geographic neighbourhood and its definition is not contained within the policies of s. 4.1.5 of the OP, and that given that the subject property is in proximity to the border of a different City neighbourhood, a geographic neighbourhood as defined under the OP “would and should include those properties that may be in a different City neighbourhood or that have been zoned differently than that of the case at bar.”

B. The Definition of Floor Space Index (FSI)

35Mr. Cheeseman also argued that the Member preferred Ms. Mercado’s FSI assessment over that of Mr. Qi, the Owner’s expert witness.

36Mr. Cheeseman submits that Ms. Mercato’s FSI assessment was an “original formula (his term)” based on certain data produced by the City, MPAC, and building permits, which included her ‘own observation’ of various and certain properties. However, he asserts that this assessment excluded, for “unspecified grounds,”⁷ nearby apartment buildings, semi-detached dwellings, townhouses and multiplexes.

37This, he concluded, led to a determination by Ms. Mercado of what is ‘not prevailing’ in the neighbourhood using a formula for assessing FSIs and neighbourhood character formed on her observations, which he submits “…is not something that the planning profession considers credible, as FSI is not something that can be simply perceived from the street.”⁸

38Furthermore, he asserts that in considering this neighbourhood character assessment, the Member accepted her determination that the Applicant’s expert planning witness’ proposed FSI was not prevailing, even though many of the properties she excluded were in Mr. Qi’s neighbourhood and could be found in the immediate vicinity of the subject property.

C. Non-expert, Layperson Evidence

39Finally, in addressing the totality of Ms. Mercado’s testimony, Mr. Cheeseman asserted that the Member made an error in law by permitting a “non-witness”⁹, to provide what he termed “essentially expert planning evidence” and then preferred her evidence to that of Mr. Qi, who the TLAB qualified as an independent expert witness.

40Mr. Cheeseman submitted that in providing her evidence, Ms. Mercado presented an analysis of the wording of the Official Plan and FSI which he contends was outside of the scope of evidence that would ordinarily be provided by a lay witness.

41He confirms that he initially objected, to the presiding Member, to Ms. Mercado’s evidence prior to the actual Hearing day, when it appeared that she would be relying on opinion evidence and then filed a Motion regarding the submission of that evidence.

42In doing so, he requested an Order requiring the witness Ms. Mercado and any other lay witnesses present to provide only factual evidence unless it could be established that said evidence would be permitted as set out under the [R v Graat] test set for a lay witness to provide opinion evidence.

43The presiding Member addressed this request in a Motion Decision dated February 22, 2023. In that decision, Member Yao dismissed the Motion arguing that:

“…allowing Ms. Mercado to proceed without prior determination of Mr. Cheeseman’s concerns about Graat is substantially the same process as followed by the Graat trial judge and therefore implicitly approved by the Supreme Court. In addition, I have latitude under the Statutory Powers Procedure Act and I choose to exercise that discretion here.”¹⁰

44In what I can only characterize as a further separate and somewhat peripheral matter which I address briefly below, Mr. Cheeseman contends that the Member made an error in fact by describing Mr. Hark Savinsky as an expert in Arboriculture, both in the heading of Member Yao’s Decision of April 26th and in paragraph 9 (on page 2) in that Decision.

45In this regard, I note that the Member identifies Mr. Savinsky in the Decision as the LBNA’s arborist and LBNA’s Arboriculture witness in the Decision and qualifies him to give opinion evidence in the Hearing in the area of forestry and Aboriculture (para. 9).

46The Member’s qualification of Mr. Savinsky is established on the basis of his Expert Witness Statement (EWS), initially filed on August 29, 2022, and again on February 23, 2023, it was further updated and refiled on March 10, 2023.

47Mr. Savinsky’s August 29th EWS includes his Curriculum Vitae (CV) and Acknowledgement of Exeprt’s Duty (Form 6), in which he states that his area of expertise is in both “Forestry and Arboriculture”.

48His EWS confirms that he is a Registered Professional Foster, has a Master’s in Science in Forestry degree from the University of Toronto, and, among other employment experiences, has been an instructor in Arboriculture at Fairview College in Alberta.

49In this regard, I find that Mr. Cheeseman is attempting to “split hairs” in his assertion that the Member made an error in fact in describing Mr. Savinsky as an expert in Arboriculture and only qualified him as an expert in forestry because he “…has training in and practiced forestry for 28 years.”

50It is evident from Mr. Savinsky’s EWS that he has experience as an instructor in Arboriculture, and I find that Member Yao was within his rights as the presiding Member to consider the qualifications of the expert witness put forward by LBNA and qualify Mr. Savinsky in the specific field and in the manner that he did.

51It is also unmistakable from the DAR recording cited below, that the Member qualified Mr. Savinsky to provide expert opinion evidence in Forestry and Arboriculture prior to commencing his testimony (February 27, 2023, DAR recording Hearing timestamp 3.39.00 – 3:43:55).

52Therefore, I dismiss Mr. Cheeseman’s assertion that the Mmeber made an error in fact in this regard.

ANALYSIS, FINDINGS, REASONS

53The Review Request submitted by the Applicant asserts that there is a convincing and compelling case that the Decision contains errors of law and fact such that the TLAB would likely have reached a different decision had such errors not been made.

54For the purpose of this analysis, I will undertake the review request utilizing the grounds under Rule 31.16 c) put forward in the Request. The Applicant submits that the Decision should be overturned and a fresh hearing be held before a different Panel Member to make a full determination in the matter.

55I have already made a determination, above, as to the question regarding an error in qualifying Mr. Savinsky to provide professional opinion evidence in the area of Arboriculture; I find no evidence that Member Yao made an error in this regard.

56I now turn to the first matter that Mr. Cheeseman identified, above, asserting that the Member made an error of law in accepting and preferring Ms. Mercado’s geographic neighbourhood and evidence regarding FSIs and neighbourhood character over that of Mr. Qi’s.

Did the Decision-maker make an Error of law or Fact in Preferring Ms. Mercatos’ Geographic Neighbourhood?

57In paragraph 10 of the Decision, the Member notes that in assessing neighbourhood character and whether new development will ‘fit’ into the character of the neighbourhood, the Official Plan directs that a neighbourhood study area be delineated.

58In doing so, he also clarifies that the first step is to define the boundaries of the neighbourhood but also that, “There is latitude given to both the person seeking to make draw (sic) the appropriate boundaries, as well as discretion to the decision maker as to whether to accept them.”¹¹

59He then goes on to provide an exhaustive and comprehensive analysis in the next 4 pages and eight (8) paragraphs (Nos. 11 through 19) of his Decision as to why he preferred Ms. Mercado’s geographic neighbourhood to that of Mr. Qi, the Applicant’s expert planning witness.

60In his analysis, Member Yao properly notes that the Official Plan directs that in order to establish area character, the “geographic neighbourhood” must be delineated.

61However, he also properly acknowledges that the Official Plan does not direct how this is to be delineated and recognizes that it also allows considerable flexibility in doing so.

62While the setting of boundaries for the relevant neighbourhood is an important step for ascertaining Official Plan conformity, the Plan also directs that the severance and variances requested be compared to an “immediate” and “broader” neighbourhood, and the proposed lot frontages and lot areas should comply with characteristics in both.

63While the geographic neighbourhood defined both by Ms. Mercado and Mr. Qi differed markedly in size and planned context, what was centrally at issue in the Member’s mind was whether the proposed development is materially consistent with the prevailing physical character of properties in both the broader and immediate contexts.

64The Official Plan directs that prevailing physical character is to be determined by the most frequently occurring form of development in the neighbourhood (my emphasis).

65Ms. Mercado’s position, which she maintained throughout the Hearing including during cross-examination by the Applicant’s solicitor, was that the existing built form context consisted typically of single detached houses, with a prevailing FSI of 0.35 times the area of the lot and below, and a prevailing lot frontage above 15.24 m, which the planned context reinforces.

66As a result, she submitted that the geographic neighbourhood delineated by Mr. Qi was “…too big and his data set too small,”¹² as well as arguing that the Applicant’s proposal signified a change in character which she considered as not permitted under the Official Plan.

67The Member accepted LBNA’s criticism of Mr. Qi’s neighbourhood as being too broad, extending eleven or twelve blocks from east to west (827 homes), and some parts of Mr. Qi’s broader area were “…simply too far away for a person of ordinary walking ability.”¹³

68In his Decision, Member Yao explicitly explains why he prefers LBNA’s neighbourhood which he describes in paragraph 13 of the Decision as “a smaller study area…which represents a better-sized basis of comparison.”¹⁴

69In using this comparison, Ms. Mercado justified the delineation of her neighbourhood study area based on all the criteria in OP 4.1.5, including prevailing building type and scale (FSI), street pattern and connectivity, etc.

70She also applied the ‘5-minute’ walk principle to assist in determining her study area boundaries and justified using this principle by asserting that it “…is an analogy that has been used by professional planners in TLAB cases in Long Branch, and in this case, by the Appellant’s Counsel during cross-examination.”¹⁵

71I find, as did the presiding Member, that her analogy and its use are appropriate. The notion of a ‘walkable area’ or “5-minute walk” is conventionally associated with how a resident experiences the varied physical context during an evening stroll or a social encounter.

72It is also considered, along with other parameters, a well-accepted and commonly used methodology employed by the planning profession to define a geographic neighbourhood study area.

73Furthermore, in her testimony during the Hearing, Ms. Mercado acknowledged all the properties that exist on the entire length of Fairfield Avenue including the Apartment Building (Exhibit 6) across the street from the subject property. She did so even though these were not in the LBNA study area but were included in Mr. Qi’s study area.

74This is reflected in the Decision at Paragraph 14, where in referring to LBNA’s smaller study area, the Member writes the following:

“However, this is not completely dispositive, because Mr. Qi argued in the alternative; even if we reject this broader area, he also discussed instances of comparable development in smaller, closer areas. I have considered this evidence (sic) will return to it below.”¹⁶

75This directly contradicts the assertion made by Mr. Cheeseman in his Review Request, in paragraph 16, where he submits that Ms. Mercado’s analysis of the neighbourhood “…excluded properties such as the seven-storey apartment building across the street from the proposal, as well as a number of properties on the other side of the street down Fairfield…”

76While Mr. Qi’s study area included the consideration of the New Toronto and Long Branch communities as being in the same neighbourhood, Ms. Mercado’s did not. As such, the Member preferred Ms. Mercado’s study area as representing the most complete data set to establish what is prevailing in the neighbourhood.

77Despite the differences in the study areas between Mr. Qi and Ms. Mercado, their lot study of the immediate context was similar and they agreed that according to OP Policy 4.1.5, the immediate context is most important.

78In this regard, the Member preferred Ms. Mercado’s evidence because she established the prevailing lot frontage in the immediate context, whereas Mr. Qi established the opposite, but only if the severance was approved.

79With respect to the issue of FSIs, Mr. Cheeseman asserts that the Member preferred Ms. Mercado’s FSI assessment over that of Mr. Qi’s, “… because the latter was based upon the decisions issued by the Committee of Adjustment, which were by nature limited to a certain number of properties in the study area.”

80Mr. Cheeseman submits that Ms. Mercado’s FSI assessment was based “on her observations of various properties” and that the Member considered it to be a “strong assessment” (Mr. Cheeseman’s term) which he accepted “uncritically (again, Mr. Cheeseman’s term).”

81I do not find this to be the case. I also find no evidence that the Member accepted Ms. Mercado’s assessment “uncritically” as asserted by the Requestor. In fact, the Member specifically addressed this issue at paragraph 21 of the Decision, where he wrote the following:

“Ms. Mercado estimated FSI’s (sic) from a number of sources, including MPAC, building permit data and Committee of Adjustment decisions. I accept her approach, and I find her observations on character are corroborated by the photomontage.”

82In the end, the Member preferred Ms. Mercado’s evidence based on the failure of the Applicant to prove that the Applications satisfied the tests set out in the Planning Act.

83I find no error arising from the fact of the acceptance of one opinion made over another in proper circumstances, even as between lay and expert opinion evidence.

84I am also not convinced that the Member was under any obligation to advise of the intention to place reliance on Ms. Mercado’s opinion; the issue of sufficiency of reasons is addressed above as to the proviso or caveat that a support base is important.

85On the issue of Mr. Cheeseman’s assertion that the Member made an error in law in permitting a non-expert witness, Ms. Mercado, to provide what the Requestor characterizes as “expert planning evidence”¹⁷ and then preferring that evidence to that of Mr. Qi, I find the Member made no such error.

86Although expert testimony at TLAB Hearings is an expectation, it is not a necessity. The fundamental purpose of recognizing and admitting the testimony of expert witnesses is to assist the Tribunal in its function of deliberating on the issue(s) before it. In providing that assistance, the expert is expected to be of assistance to the Tribunal as to matters within the area of competence and expertise expressed.

87Experts have certain duties when appearing before the TLAB. An expert is tendered by a Party to assist a Member in understanding technical or difficult matters outside one’s expected breadth and depth of knowledge or experience.

88However, it must be noted that the TLAB Member hearing from an expert witness, qualified and affirmed, has the discretion to decide how much weight he or she is going to accord that evidence.

89Experts before the Tribunal are not necessarily accorded “extra” weight simply because they are experts, nor is an expert’s evidence simply to be discounted, either. Each Member must turn his or her mind to this issue, with respect to every witness – lay or expert.

90It is to be noted that the TLAB has provided in its Rules a wide latitude for the role of lay citizen witnesses to be heard.

91I find that the Member was consistent on the definition of the weight preference to be given to an expert on matters within their discipline and field of expertise, by study or experience, and I also accept that neither Ms. Mercado nor LBNA put her forward as qualified to give expert testimony on land use planning matters.

92However, a citizen is not precluded from having opinions including on matters of land use planning. It is for the Member, the gatekeeper of qualifications, credibility assessment, and the weighing of opinions to sort distinctions in the evidence.

93The matter of the weight given to the opinion evidence is also a matter of discretion to be afforded to the Member. That discretion is not, however, unrestricted. Discretion must be exercised with due regard to the evidence, be described, and cannot be perverse; it is not unbridled or unfettered as that is anathema to the civil system of justice premised on reason, factual circumstances and the Rule of Law.

94In the case at hand, I find that the Member fulfilled his duties and exercised the discretion at his disposal with due regard for the evidence before him, providing a concise explanation in his Decision, beginning at paragraph 44, under the heading “Ms. Mercado’s non expert witness status.”

95I note that in doing so, Member Yao makes an interesting statement regarding the distinction between admissibility and relevance of evidence at the very end of that Decision.

96In paragraph 49, Member Yao states that “Admissibility, as I stated previously, is a different issue than relevance.”¹⁸ This distinction is actually relevant and germane to the consideration of whether the Member made an error in law regarding Ms. Mercado’s evidence, as asserted by Mr. Cheeseman.

97Mr. Cheeseman contends that Ms. Mercado presented evidence by way of her analysis of the wording of the Official Plan and FSI, which he submits was outside the scope of evidence that would ordinarily be provided by a lay witness.

98In the Review Request, Mr. Cheeseman writes that “…this evidence was submitted with the proviso that it was submitted by a lay witness, based on observation, not the formation of an expert opinion.”¹⁹

99Member Yao confirmed in his Decision that neither Ms. Mercado, president of the Long Branch Neighbourhood Association, nor Mr. Davidson, a long-time resident, both of whom testified in opposition to the Applications sought “…to be qualified as “opinion” or “expert” witnesses.”

100He also confirmed that Ms. Mercado’s “observations are relevant and probative,” noting that her ‘observations’ “…consisted of counting and enumerating, e.g., number of lots, number of Committee of Adjustment decisions, her personal experience (she has planted a tree).”

101Member Yao concluded concluding that there was no conflict on certain facts between Ms. Mercado and Mr. Qi, simply an absence of proponent evidence on those points.

102Finally, Member Yao confirmed that while the evidence was not contradictory, he accepted Ms. Mercado’s testimony at all points where it conflicted with Mr. Qi’s, which is his right to do.

103I note that a TLAB Member is appointed by City Council and is expected to administer a process which is accessible to ordinary citizens. A person like Ms. Mercado, who knows the neighbourhood and whose “observations” the Decision-maker found “relevant and probative,” had information to assist the Member in the hearing matter.

104Nevertheless, neither a qualified expert nor a non-expert witness can usurp the ultimate question that Council asks the TLAB to answer and it is through that lens that Member Yao received the evidence of Ms. Mercado.

105In administrative law, the weighing of evidence is remitted to the trier of facts. It is that individual who is charged with the broad responsibility to advance the public interest by hearing opinion evidence and applying law and policy and own experience to matters for dispute resolution. To accomplish that, the Member must be alert to issues, fairly listen to all ‘sides’ and address issues within the statutory framework within which the appeal is advanced.

106Member Yao was entitled, on the standard of reasonableness, to draw inferences and conclusions from the evidence provided there is some relevant evidence tendered to support the conclusion and the conclusion itself is not perverse.

107Having heard the evidence pro and con and having made his own observations, Member Yao was entitled to formulate his own opinion on acceptability or disagreement with the professional witness, which he did. Without something further in law or principle, that exercise is part of the job function of the TLAB Member and Member Yao exercised that responsibility fully as outlined in his Decision.

108As a matter of principle, it is open for the Decision-maker to accept lay citizen evidence over that of a qualified practicing professional in circumstances where the justification of that decision is clearly articulated or is the result of the correction of a factual error or is otherwise justified in law.

109I agree with Ms. Mercado, as articulated in her Response, that there is no obligation for the Decision-maker to accept the expert witness’ opinion over layperson evidence that challenges that opinion. She supported this position by way of precedent established by way of case law in other hearing matters before the TLAB (See the Review Request Decision issued by Mmeber Talukder in 65 Fortieth St.).

110In the case at hand, the Member heard all the evidence but was swayed by and preferred Ms. Mercado’s, which is ultimately the Member’s call.

CONCLUSION

111I have reviewed the Decision as a whole and considered it in the context of decision-making by the TLAB, and I find the Decision of the presiding Member to be detailed and thorough. The Decision sets out a substantial basis for its conclusions, considering law, policy and evidence and provides a consistent underpinning of the reasons for the determinations made.

112I find that the presiding Member considered the opinion evidence from both the Applicant’s expert land use planner and Ms. Mercado, and reached a reasonable outcome, and I find no flaw in the reasoning or the Decision delivered.

113I have also considered the Review Request which, to succeed, must provide compelling reasons and evidence that the TLAB committed an error of the specific nature set out in Rule 31.17 of the TLAB’s Rules.

114I find that the Requestor has provided no compelling reasons that demonstrate that the Decision-maker made errors of law or fact with respect to relying on the non-expert evidence of a lay witness to address expert evidential matters, defining the neighbourhood area in a way that does not accord with the guidelines set out in the Official Plan, and adopting a definition of FSI that does not accord with the standards as set out by an urban planning profession.

115Furthermore, I find no error of law or fact which would likely have resulted in a different decision.

DECISION AND ORDER

116The Review Request is refused, and the Final Decision and Order of Mmeber Yao dated April 26, 2023, is confirmed.

D. Lombardi Panel Member

Footnotes

1. 1Oct. 5, 2022, Dec. 8, 2022, Jan. 5, 2023, Feb. 24 & 27, 2023, and Mar. 10, 2023.
2. 2Mr. Cheeseman’s Review Request for 24 Fairfield Ave., para. 15, p. 8.
3. 3Mr. Cheeseman’s Review Request, para. 15, p. 8.
4. 4Ibid., para. 16, p. 9
5. 5Ibid.
6. 6Mr. Cheeseman’s Review Request, para. 16, p. 9..
7. 7Ibid., para 18, p. 11.
8. 8Ibid., para. 17, p. 10.
9. 9Mr. Cheeseman’s Review Request, para. 20, p. 11.
10. 10Member Yao’s Motion Decision, dated February 22, 2023, Para. 31, P. 9.
11. 11Member Yao’s Final decision dated April 26, 2023, para. 10.
12. 12LBNA’s Response to Review Request, para. 18, p. 8.
13. 13Member Yao’s Decision dated April 26, 2023, para. 13.
14. 14Ibid.
15. 15LBNA’s Response to Review Request, para. 5, p. 3.
16. 16Member Yao’s Decision dated April 26, 2023, para. 14.
17. 17Mr. Cheeseman’s Review Request, para. 20, p. 11.
18. 18Mmeber Yao’s Decision dated April 26, 2023, para. 49.
19. 19Mr. Cheeseman’s Review Request, para.20, p. 11.