Toronto Local Appeal Body

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

Date:

2023-10-17

21 209053 S45 19 TLAB

Messow v. Lin, 2023 ONTLAB 144

REVIEW REQUEST ORDER

Issuance Date:

October 17, 2023

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

Appellant(s):

M. MESSOW

Applicant(s):

MEMAR ARCHITECTS INC

Property Address:

290 WAVERLEY RD

COA File No.:

21 112209 STE 19 MV (A0133/21TEY)

TLAB Case File No.:

21 209053 S45 19 TLAB

Hearing Date(s):

March 21, 2022, May 10, 2022, July 8, 2022 September 23, 2022, November 4, 2022 November 15, 2022, February 16, 2022, March 7, 2022

Decision Delivered By:

TLAB Chair D. Lombardi

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Owner/ Party

X. Lin

Z. Fleisher D. Bronskill

Applicant

MEMAR ARCHITECTS INC

Appellant

M. Messow

I. Flett

Expert Witness

M. Manett

Expert Witness

A. Dales

REVIEW REQUEST NATURE AND RULE COMPLIANCE TO INITIATE

1On August 18, 2021, the City of Toronto (City) Committee of Adjustment (COA) approved eight (8) variances to permit the alteration of the existing two-storey detached dwelling by constructing a rear two-storey addition, a third storey addition, and a detached garage in the rear of the property (Application) at 290 Waverley Road (subject property).

2Mark Messow (Appellant), the owner of the neighbouring property at 288 Waverley Road appealed the COA’s decision to the Toronto Local Appeal Body (TLAB) and the TLAB scheduled a Hearing for January 18, 2022, to hear the Appeal.

3However, due to a myriad of scheduling delays and a lack of availability of counsel and witnesses at various times, it was rescheduled numerous times, including by adjournment, before a Hearing date of September 23, 2022, was eventually set.

4At the Hearing on September 23^rd, the Applicant was represented by David Bronskill (Goodmans LLP), the Owner’s legal representative, and land use planner Andrew Dales. The Appellant was represented by counsel Ian Flett (Gillespie Law), and land use planner Michael Manett.

5However, the Parties jointly requested that the TLAB adjourn the Hearing so that they could pursue settlement discussions privately. Those discussions ultimately proved to be unsuccessful, and upon notification of such, the TLAB scheduled a subsequent Hearing date for November 4, 2022.

6In fact, TLAB Member Gopikrishna (the presiding Member) directed staff to schedule three (3) additional Hearing dates to hear this matter following the adjourned September 23^rd Hearing - November 4, 2022, February 16, 2023, and March 7, 2023.

7Following the September 23^rd Hearing, Member Gopikrishna issued an Interim Decision and Order, dated October 6, 2022, providing instructions for submissions from the Parties and directing them to submit “ additional numerical information regarding the characteristics listed in Policy 4.1.5 of the Official Plan in order to determine the “prevailing Type”…”¹ (I note for the record that the Requestor in the Review Request lists an incorrect year of 2023 for the issuance of the Member’s Interim Decision and Order).

8Furthermore, following the subsequent Hearings held on November 4, 2022, and February 16, 2023, respectively, the presiding Member issued two (2) additional Interim Decisions and Orders to provide the Parties with procedural directions and to confirm future Hearing dates.

9In total, it appears that the subject Appeal Matter consumed nine (9) scheduled Hearing days spanning fifteen (15) months between January 2022 and March 2023, with the final Hearing Day for oral arguments having been completed on March 7, 2023.

10After hearing the Appeal, Member Gopikrishna issued a Final Decision and Order (Final Decision) on July 31, 2023, allowing the appeal and refusing the variances requested.

11On August 30, 2023, David Bronskill and Zachary Fleisher (Goodmans LLP) (Requestors) filed a Request for Review (Request) of the Final Decision with the TLAB as is permitted under the TLAB’s Rules of Practice and Procedure (Rules).

12The Review Request alleges that the decision-maker violated the rules of natural justice and procedural fairness and contained several significant errors of law and fact such that the TLAB would likely have reached a different decision had such errors not been made.

13The Request asks that the TLAB cancel the Final decision issued by Member Gopikrishna and order a ‘de novo’ Hearing before a different TLAB Member pursuant to Rule 31.16 (c) of the TLAB’s Rules.

14An administrative screening was conducted 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.

CONSIDERATION AND COMMENTARY

15Rule 31 of the TLAB’s Rules sets out 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’.

16These grounds are the only basis upon which an Appeal Decision may be set aside, and a new Hearing ordered.

17Before 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 by the reviewer 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 the decision affecting a Party.

• Fundamental to assessing the assertions made in the Request is the need to give the decision a fair and liberal interpretation and construction consistent with its role but tested against the defined, eligible grounds for reconsideration.

• 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) of 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 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, considering relevant considerations and applying the law and policy germane to the TLAB’s mandate, including its own deliberations.

18I 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.

19It is with these considerations in mind that I’ve read and reread the Member’s Final Decision and Order and the Request itself.

20I have reviewed the submissions filed in this matter as to the main TLAB hearing events which included some nine (9) Hearing days of various lengths, Member Gopikrishna’s July 31, 2023, Final Decision, as well as the three (3) subsequent Interim Decisions and Orders issued by that Member.

21I have also reviewed the Review Request submissions filed by legal counsel with the TLAB on behalf of the Owner.

22That filing consists of some two hundred and seventy-seven (277) pages, including a requisite ‘Overview of the Review Request’, Written Argument and Reasons for the Review Request, as well as the following case law in the form of seven (7) decisions in total, four (4) from Divisional Court and three (3) from the TLAB:

• Vincent v. DeGasperis (2005), O.J. No. 28900 (Div. Ct.) – DeGasperis;

• Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670 – Clifford;

• Simon v. Bowie, 2010 ONSC 5989 (Div. Ct.) – Simon;

• Plotkine v. Seidenfeld, 2014 ONSC 4157 (Div. Ct.) – Plotkine;

• TLAB Decision re: 251 Old Forest Hill Road (August 16, 2022) – 251 Old Forest Hill;

• TLAB Decision re: 34 Morningside Avenue (September 19, 2002) – 34 Morningside; and

• TLAB Review Decision re: 21 Valley View (November 9, 2022) – 21 Valley View.

Review Request Grounds

23It 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.

24A Review is not, as above stated, a re-hearing of the matter to consider whether the review might have come to a different conclusion. It is also not an invitation to simply challenge a decision with which one disagrees.

25On the contrary, it is a canvass as to whether any of the statutory grounds afforded a review under the Statutory Powers Procedure Act (SPPA) are established and the TLAB Rules clearly envisage that there must be a demonstrable error in the categories identified that warrants relief of the variety and to the standards provided for in Rule 31.

26Having regard specifically to Rule 31.17, above, the Requestor cites as a basis for consideration paragraphs 31.17 b) and c).

27In this regard, the full consideration must be stated and applied which is as follows: namely, whether the presiding Member:

“31.17 b) violated the rules of natural justice and procedural fairness.”

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

28This standard implies that the reviewer must not only be apprised by the Review Request of a violation of the rules of natural justice and procedural fairness and 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.

29Rule 31.16 of the TLAB’s Rules outlines, by authority, the remedies available to the Reviewer following the completion of a Review Request:

“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.”²

30In the ‘Review Request Overview’, the Requestors set out the basis for the Request pursuant to Rule 31.17 (a) and (c), and the rationale as to why the Owner of the subject property, Xin Lin, asks that the Member’s Final Decision of July 31^st be reviewed.

31The Request asserts that the Final decision:

a) Violated the rules of natural justice and procedural fairness by failing to provide adequate reasons; and

b) Contains several significant errors of law and fact that the TLAB would likely have reached a different decision had such errors been made, including:

i. Failing to apply all four tests in subsection 45(1) of the Planning Act;

ii. Failing to provide adequate and transparent reasons;

iii. Incorrect interpretation of policy 4.1.5 of the Official Plan;

iv. Making factual findings in the absence of evidence;

v. Applying incorrect legal tests to the TLAB appeal; and

vi. Finding that the proposed development does not respect and reinforce the neighbourhood character.

Violated the Rules of Natural Justice and Procedural Fairness

32At paragraph [20] of the Review Request, the Requestors assert that what is of paramount importance, and what is “fatal to the Decision,”³ is the Presiding Member’s failure to provide adequate reasons by deliberately not considering each of the four tests as required under subsection 45(1) of the Planning Act and applicable case law.

33The Requestors also assert that the Hearing involved extensive expert testimony from both the Applicant and the Appellant but that the Final Decision:

“…simply restates the evidence of both witnesses and only analyzes the evidence in the context of whether the test of maintaining the general intent and purpose of the Official Plan is met, and concludes that the evidence was insufficient to arrive at a determination regarding the “prevailing type” of development.”⁴

34As a result, the Request submits that the Presiding Member deliberately chose to not assess the variances through the lens of the other three tests and that “…the “path” taken by the TLAB with respect to the other three tests is not apparent.”⁵

35Furthermore, the Requestors argue that it is impossible to understand how the TLAB considered the evidence presented before presumably assigning it, “little weight (Requestors’ term).”

36The Requestors highlight the relevant case law cited above, and included in Tab 6 of the Request, to support their arguments. In doing so, they specifically refer to the Ontario Court of Appeal decision in Clifford v. Ontario, which they submit underlines the “importance of expressing clear and transparent reasons” in a decision to explain the outcome.

37The Request also references subsequent Divisional Court decisions, in which the Requestors submit that the Court clarified that the law requires an adjudicator on a minor variance application to substantively apply the four tests.

38While the Requestors do acknowledge that the TLAB is not necessarily required to address each element of the test separately and formulaically in respect of each variance, they contend that “…it (the tribunal) is required to give careful reasons explaining why it preferred the evidence of one witness over another.”⁶

39In making this argument, the Requestors cite the Divisional Court Decision in Plotkine v. Seidenfeld, in which they submit that the Court held that “the content and substance of any decision needs to be measured against the nature and depth of the hearing or proceeding to which it responds.”⁷

40The Requestors maintain that the Applicant was the only Party to proffer any detailed written or ‘de novo’ evidence concerning all four of the statutory tests.

41As a result, in the absence of demonstrating how its substantive conclusions were reached with respect to the issues and variances being considered, Parties are left to speculate as to the reasons why certain variances were refused.

42The Requestors submit that such “shortcomings” (their term) of the Final Decision, and by correlation the decision-maker, “…amount to a fundamental flaw and an abdication of the TLAB’s obligation to consider and determine the matters before it.”⁸

43In making these contentions under the ‘Violation of Natural Justice and Procedural Fairness’ section in the Review Request, the Requestors also introduce arguments related to the Presiding Member’s “rejection of the opinion evidence of the Applicant’s expert planning witness, Mr. Dales.”

44Given that this topic seems to overlap with the next section of the Review Request, ‘Errors of Law and Fact’, in which the Requestors present arguments that the Final Decision contains several significant errors of law and fact, I will defer addressing this particular matter in detail until later in this Review Request decision.

45An application for variance relief is a request to change the applicable standards (usually a regulation) in a zoning by-law, to something felt more suitable in the given fact circumstances. The statute, the Planning Act, requires certain matters to be addressed before that relief can be granted.

46A variance application has been described as a ‘privilege’, not a right. In fact, there is a right to make such an application; however, there is no entitlement that such be granted.

47Hearings before the TLAB are also ‘de novo’, meaning the entire application must be considered ‘anew’ and the burden of proof is on the Applicant, even when they are not the Appellants, which the Requestors explicitly acknowledge in paragraph 23 in the Request.

48The public interest evokes a consideration of the merits and demerits of the request. The Requestors cite DeGasperis, among others, as case law for guidance in arguing that the decision-maker violated natural justice and procedural fairness by not granting the requested variances.

49In that case, the statute requires that the support base for the departure from the zoning by-law be reflected through reasons that address the statutory tests and policy. The public interest is expressed in the Official Plan and the zoning by-law and departures therefrom to be approved must be expressed with regard to their tenets on the four tests, policy and principles of good community planning.

50DeGasperis is a circumstance where the required engagement was not done, where factors that reasonably bear on the decision were not articulated, where impact was almost an exclusive focus and where there was an omission of any analysis of the general intent and purpose of the Official Plan or zoning by-law.

51While the law is clear, including in DeGasperis, that the decision-maker must address the requisite policy and tests in a decision that grants a variance, since in order to gain the approval, all four tests must be met, this obligation is not prescribed for a decision that refuses a variance as the failure of any one of the tests precipitates the refusal.

52It is tautology in the jurisprudence of the Ontario Land Tribunal (formerly the LPAT and the OMB) and the TLAB that if a variance fails any one of the four tests, the variance fails and the application, including that variance, may fail with it.

53In the case at hand, the presiding Member found that the “key variance” had failed, as he expressed in the following excerpts from the July 31, 2023, Final Decision:

“…I find that the Applicants (sic) have not established the prevailing type with respect to any of the variables listed in Section 4.1.5, which makes it impossible to determine how, or if requested variances respect and reinforce the Prevailing type of development.”⁹

“With specific reference to the FSI variance, I specifically find that it does not satisfy Section 4.1.5 of the OP, and therefore should be refused.”¹⁰

“Given my findings in Paragraph [79] of this Decision regarding the interaction between all the other requested variances, and the FSI variance, I find that the refusal of the FSI variance results in the refusal of all other variances.”¹¹

54A variance must satisfactorily and independently pass all applicable policy and the four statutory tests to be granted; the failure to pass any one element is sufficient to refuse the variance where the considerations going into that refusal are relevant and not perverse.

55The position of the Requestor is that the facts, above, invoke the ambit of the terminology in DeGasperis that the analysis in the totality of the Decision and its considerations is “to the extent necessary,” so as not to require the Member to comprehensively assess the merits of each variance, namely the residential variances.

56I find that Member Gopikrishna did so, and concluded against the Applicant’s request on the basis that any one test deficiency was sufficient, where it was properly grounded and reasonable. I will expand on this aspect in greater detail in the next section of this Review Request Decision.

57Therefore, I disagree with the Requestors on the grounds purported in the Review that the presiding Member failed to provide adequate reasons by deliberately not considering each of the four tests under subsection 45(10 of the Planning Act was “fatal” to the Decision.

58As noted above in this decision, there are four independent tests which must be satisfied by the requested variances, individually and collectively, under subsection 45(1).

59The presiding Member found that “the requested variances don’t maintain the intent and purpose of the Official Plan, and are therefore refused.”¹²

60The requested variances must satisfy all the applicable policies in the Official Plan for the Application to be successful. In other words, the inability to satisfy the general intent and purpose of even one of the applicable policies is fatal to the ability of the variance to satisfy the test respecting the Official Plan, and consequently Section 45(1) in its entirety.

61In this regard, I highlight the following excerpt from a decision written by the TLAB Vice-Chair Bassios for 8 Edgehill Rd.:

“It is established jurisprudence that to be approved an application for variances must meet all four tests as outlined in the Planning Act s. 45(1). As I have found that the proposal does not meet the general intent and purpose of the Official Plan, I have concluded that the proposal therefore does not meet the overall intent and purpose of the implementing Zoning By-law(s). I shall not proceed with a detailed analysis of the proposal in relation to the general intent and purpose of the Zoning By-law, or the final two tests set out under s. 45(1) as the proposal is rendered unviable by my finding on the first test.”

62Member Gopikrishna concluded that the FSI variance did not satisfy Section 4.1.5 of the OP and should be refused. He also determined that given his findings in Paragraph [79] of the Final Decision regarding the interrelationship between all the other requested variances and the FSI variance, the refusal of the FSI variance resulted in the refusal of all the other variances.

63He then, I find, concluded, correctly, that there was no requirement to make findings respecting the other tests “…and on the relationship between the proposal, and other tests.”¹³

64Therefore, I find no violation of the rules of natural justice and procedural failure.

Errors of Law and Fact

65In the ‘Overview of the Review Request’, the Requestors submit that the Final Decision contained significant errors of law and fact such that the TLAB would likely have reached a different decision had such errors not been made. They list six (6) specific errors, which I’ve already cited above in this Review Request Decision.

66Concerning the first two listed: i. failing to apply all four tests in subsection 45(10 of the Planning Act; and ii. failing to provide adequate and transparent reasons, my analysis above is sufficient to have addressed these and I do not intend to reexamine each in this section.

67For this Review Request, the remaining four purported errors of law and fact can be distilled and grouped into the following two generalized subcategories as submitted in paragraph [3] in the Request, under the heading ‘Overview of Review Request’:

i. Applying a narrow numerical approach to the interpretation of Policy 4.15 of the Official Plan.

“The Decision takes an inappropriate and overly numerical approach to determining whether the proposal maintains the general intent and purpose of the Official Plan”¹⁴

ii. Applying incorrect legal tests in finding that the proposed development does not respect and reinforce the neighbourhood character.

“The Decision failed to consider the evidence before it, arrived at conclusions that were not borne out of the evidence, and read into the Official Plan quantitative tests of “prevailing” that is impossible to meet with the available data.”¹⁵

Applying a Narrow Approach to the Interpretation of Policy 4.1.5 of the OP

68The Requestors assert that the evidence of Mr. Dales, the Applicant’s expert planner, was that the comprehensive data sets lacked the reliability to support the presiding Member from arriving at a “prevailing type” on the basis of numerical data.

69The data sets referenced by the Requestors relate to the property data from the City’s Land and Structure Data (LS Data) containing metrics on lot frontage, depth, gross floor area, and number of storeys filed by Mr. Dales in “…an attempt to obey the presiding Member’s direction.”¹⁶

70On November 18, 2022, the Applicant’s solicitor filed Supplementary Evidence of Mr. Dales (Tab 5 in the Review Request) that provided additional photographic evidence to the numerical data to assist in determining the prevailing building type in the geographic neighbourhood.

71However, the Requestors submit that this Supplemental Evidence also included Mr. Dales’ advisory regarding the numerous inaccuracies in the LS Data.

72Despite this evidence, the presiding Member concluded in the Final Decision that “…a ‘flawed’ statistical distribution…does not preclude one from reaching supportable, and reliable decision about the ‘prevailing’ type.”¹⁷

73Furthermore, the Requestors submit that “…the TLAB erred in specifically applying only a numeric approach in its consideration of the “prevailing type.,”¹⁸ an approach which they assert is “incorrect” (their term), since the exercises “…is land use planning, not accounting.”

74The Requestors assert that the numerical exercise the Member undertook to determine the ‘prevailing type’ was “incorrect,” arguing that “…this is land use planning, not accounting,” and cite case law in the form of Re McNamara Corp. and Colekin Investments, and DeGasperis, to underscore this position.

75I disagree that the presiding Member’s analysis was principally quantitative and an accounting exercise.

76On the contrary, I find that the presiding Member allocated considerable effort in his Final Decision, commencing in the ‘ISSUES AND ANALYSIS’ section, to determining, both from a qualitative and quantitative perspective, whether the proposal maintains the general intent and purpose of the Official Plan

77This effort is best summarized in the following excerpt at paragraph [89] in the Final Decision and, specifically, in the section highlighted, below:

“The underlined expressions “performance standards” and “site standards” make it clear that the role of the Zoning By-law is to establish site specific numerical measures, which help ensure that the proposal is compatible with the existing character of the neighbourhood. I find that the concept of “prevailing”, which is defined in Policy 4.1.5 of the OP, as recited below, refers to a concept, as opposed to a performance standard. It is facile, and more importantly erroneous, to describe the concept of “prevailing” as the equivalent of a numerical standard, just because the concept of “prevailing” relies on a counting exercise to establish the most commonly occurring form of development. The only commonality between the concept of “prevailing”, as found in the OP, and numerical standards in the By-law is the reliance on numbers, which are different in every other aspect - the fluidity in how the prevailing type can change based on the GN or IC selected by a Party, is a stark contrast, to the rigidity of numerical standards in By-laws, which are Zoning dependent, and don’t change should a different GN or IC be chosen.”

78The presiding Member continues his deliberation as to whether the requested variances maintain the general intent and purpose of the Official Plan at paragraphs [92] through [100], in which he considers what he terms the “main policies of the OP” that apply to any proposal and specifically identifies them as Policies 2.3.1, 3.1.2, and 4.1.5.

79He also correctly states that it is important that the proposal before the TLAB satisfies all the applicable policies and that “…all applicable policies have to be fulfilled in order for the variances to be approved.”¹⁹

80At paragraph [93], Member Gopikrishna further addresses the issue of “prevailing type” and how that was determined with respect to Policy 4.1.5 and the evidence presented by both expert witnesses within their respective geographic Neighbourhood Study Areas.

81Not satisfied with the initial submissions made in this regard, Member Gopikrishna directs the Applicant to make a further submission to the TLAB and provide more information to assist in determining neighbourhood character and “…for the purposes of establishing the “prevailing type(s) or a type that exists in “substantial numbers”.”²⁰

82The Requestors assert that Mr. Dales provided “extensive” (their term) expert evidence on the character of the neighbourhood as summarized in the Final Decision, but “…the Decision either misstates or doesn’t consider the evidence.”²¹

83Again, I disagree and find this allegation to not be the case. The Requestors assert that the presiding Member misstates the evidence and does not take into account the presence of a more intensive building type in the immediate context which they submit is an error of fact that would have likely resulted in a different decision given the language of Policy 4.1.5.

84In fact, Member Gopikrishna considered all of the evidence and came to a different conclusion than did the Applicant and their expert planner, which is the Member’s prerogative. He did so based on the evidence before him at the Hearing.

85The presiding Member wrote the following in the Final Decision regarding the evidence provided by the Applicant:

“In the Supplemental Information provided on October 31, 2022, the Applicants (sic) included numerical information about some of the variables referred to in Policy 4.1.5, but did not present any evidence on these variables. I reiterate that no attempt was made to establish the “Prevailing Type” on the basis of any of these variables.”²²

86Additionally, the Member offers an “obiter remark” in the Final Decision, at paragraph [104], concluding “that it is certainly lost on me…and best known to the Party…” why the Applicant chose to rely on the FSI variable, in the data provided by the expert planner, to arrive at a conclusion about the “prevailing type” after Mr. Dales pronounced this to be “…the most useless variable.” ²³

87The presiding Member then concludes that the evidence provided by the Applicant did not establish the prevailing type of built form, “namely two storeyed (sic), detached buildings” in the Immediate Context, and “…more importantly, did not discuss how their proposal, respects and reinforces the Prevailing type.”²⁴

88However, Member Gopikrishna does address the issue of the consideration of “flawed data” in the Final Decision, an issue raised by the Requestors in paragraph 39 (page 10) in the Review Request.

89The presiding Member acknowledges (as he also notes Mr. Dales did) in the Final Decision, the “inherent lack of reliability of the comprehensive data sets to arrive at a “prevailing type” on the basis of numerical data.”

90In paragraph [78] of the Final Decision, he poses the following question – Does “inaccurate” data prevent the Parties and decision makers from coming to supportable decisions? - and then answers the question with an analysis of the evidence provided.

91He notes that “a “flawed” statistical distribution…does not preclude one from reaching supportable, and reliable decisions about “prevailing type”.”²⁵

92Member Gopikrishna further acknowledges that while there may have been errors regarding specific data points, he concludes:

“…there is no evidence before me to indicate that the errors in question have tainted the data set to the extent that no meaningful inferences can be drawn from the data set. As a result, I disagree with the Applicant’s contention about not being able to use the data set to come to supportable findings.”²⁶

93Again, I agree with the presiding Member. The Applicant had the opportunity to establish the “prevailing type” with respect to any of the criteria listed in Policy 4.1.5 but, in the decision-maker’s opinion, did not do so. This, then, made it difficult for Member Gopikrishna to find in the Applicant’s favour and to be satisfied that “…the request variances respect and reinforce the Prevailing type of development.”

94Finally, with respect to the neighbourhood character assessment, the Requestors assert that the presiding Member made an error of law in misapplying Policy 4.1.5 in finding that “…the changes in the [immediate context] are determinative to deciding whether the variances should be approved…and will be relied upon for making findings.”

95In addition, the Requestors allege that the Decision commits an error in law “…in failing to consider whether the proposal is materially consistent with properties in both the broader and immediate contexts,”²⁷ and that if both had been considered, the Member would have arrived at a different decision.

96I find the Requestors’ assertions to have no basis. In fact, the presiding Member discusses the geographic neighbourhood context at length, starting at paragraph [75] under the heading, ‘Is there a difference between the General Neighbourhood and the Immediate Context?’, in the Final Decision.

97Member Gopikrishna notes that both Parties referred to the Immediate Context (IC) but that “…their oral evidence was that there is no difference between the IC and the GN (General Neighbourhood), though the reasoning behind this conclusion is not clear.”²⁸

98He then proceeds to address the overall Neighbourhood Study Area (NSA) and considers both contexts as supported by the following excerpt from the Final Decision:

“The Appellants on the other hand, argued that since the COA had granted very few approvals in the IC since 2006, there had been little change in the IC compared to other parts of the NSA. Based on the COA decision table submitted by the Applicants, that reflects (sic) approvals and refusals since 2006, the quantum of change in the Immediate Context, measured on the numbers of approvals by the COA/TLAB, and the maximum FSI of 0.85 X Lot Size, that was approved, provides a strong contrast to the more substantial numbers of approvals, as well as the maximum FSI approved in the larger GN, outside of the IC- these changes have resulted in bigger houses to a greater extent in the NSA, rather than the IC, which in turn result in a very perceptible change to the Neighbourhood Character, as was evident in the photo tours. I therefore find that there is a perceptible difference between the GN/NSA and the IC, which means that the changes in the latter are determinative to deciding whether the variances should be approved. The changes in the larger GN/NSA will not be taken into account for decision making purposes.”²⁹

99The Official Plan states that:

“Proposed development within a neighbourhood will be materially consistent with the prevailing physical character of properties in both the broader and immediate contexts. In instances of significant differences between these two contexts, the immediate context will be considered to be of greater relevance.”

100Parties bringing forward the details of decisions made by the COA in the Geographic Neighbourhood, or Immediate Context, as the case may be, need to bear in mind that the decisions are sourced from the City of Toronto Open Data and usually date back no more than seventeen (17) years to 2006. This information does not represent the quantum of change in the community because the time frame of 17 years does not help in understanding whether any change occurred before 2006, and how that development, or lack thereof, shaped the community.

101The concept of "prevailing" in Section 4.1.5 of the OP, which is key to determining how the proposal in question respects and reinforces the prevailing type, requires that the prevailing type or types be determined through determination of the type, or types, that constitute the greater proportion of the total number.

102Knowledge of the changes brought about through COA decisions in a limited time frame may help understand the general pattern of change, but shed limited light on the sum of change in a community and what is “prevailing,” without other relevant information.

103On this basis, and with the evidence already heard, Member Gopikrishna found “…the Immediate Context is determinative and will be relied upon in making findings.”

104I find that the presiding Member fully considered the evidence concerning OP Policy 4.1.5, analyzed the OP Policy, and reached a reasonable conclusion concerning the application of that Policy to the proposed development.

105A TLAB decision is to be drafted with sufficient particularity that its findings and reasoning chain reflect an evidentiary or other support bases for the conclusions and disposition of the matter, including, if I may use a colloquial term, communicating to the loser “why they lost.”

106I find that Member Gopikrishna did that, albeit in a Final Decision document that did contain several publication errors that, while unfortunate, were not substantive and had no impact on the support bases for the conclusions reached by the presiding Member.

107Consequently, I do not find that he committed an error of fact or law arising from his interpretation of OP Policy 4.1.5.

CONCLUSION

108I have reviewed the Final Decision as a whole and considered it in the context of decision-making by the TLAB. The Reviewer is to give deference to the factual findings of the presiding Member and where the original decision maker has provided replicable and reasonable grounds for evidentiary findings, absent any of the identifiable constraints in the Rules, I am to support the Decision.

109Rule 31.17 of the TLAB’s Rules requires the reasons and evidence provided in the Review Request to be ‘compelling’ and must meet the test for an administrative tribunal as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov.³⁰

110In assessing similar (although) not identical language in the rules of the former Ontario Municipal Board (OMB), the Board held that a compelling case is one that is “so attractive as to be overpowering and irresistible” which leads the Tribunal to conclude that it is constrained from considering any other path and it has no option but to grant the review relief sought.

111I find that the Review Request has not provided such compelling reasons which demonstrate that the TLAB violated natural justice or exceeded its jurisdiction in this matter or made errors of law or fact with respect to requiring a documented rationale, disregarding expert opinion, or authorizing a variance in the absence of evidence or applying OP Policy incorrectly.

112Even if I had found that the Review Request made an error of law with respect to the assertion of applying a narrow numerical approach to the interpretation of Policy 4.15 of the Official Plan, and/or applying incorrect legal tests in finding that the proposed development does not respect and reinforce the neighbourhood character, the Requestors have not provided reasons or evidence to show that the errors would likely have resulted in a different Final Decision, resulting in the approval of the requested variances

113Therefore, in the matter of the Review Request in question, I find that there are insufficient grounds established under Rule 31.17 a) and c) to grant the remedy or remedies permitted under Rule 31.16 c); that is “to cancel the Final Decision or final order, with reasons, and where appropriate, direct a de novo Oral Hearing before a different TLAB Member.”

DECISION AND ORDER

114The Review Request is refused, and the Final Decision and Order of Member Gopikrishna, dated July 31, 2023, is confirmed.

D. Lombardi

TLAB Chair, Panel Member

Footnotes

1. 1Member Gopikrishna’s Interim Decision & Order, dated Oct. 6, 2022, para. 12.
2. 2TLAB’s Rules of Practice and Procedure, as constituted after December 2, 2020, p. 44.
3. 3Review Request for 290 Waverley Rd, Goodmans LLP, dated August 30, 2023, para. 20, p. 5.
4. 4Ibid., paragraph 24, p. 6.
5. 5Ibid.
6. 6Simon v. Bowie, 2010 ONSC 5898 (Div. Ct.), para 9-15.
7. 7Plotkine v. Seindenfeld, 2014 ONSC 4157 (Div. Ct.), para. 11-16.
8. 8Review Request for 290 Waverley Rd, Goodmans LLP, dated August 30, 2023, para. 25, p. 7.
9. 9Final Decision and Order for 290 Waverley Rd., dated July 31, 2023, para. 107.
10. 10Ibid., para. 108
11. 11Final Decision and Order for 290 Waverley Rd., dated July 31, 2023, para. 108.
12. 12Ibid., para. 112.
13. 13Member Gopikrishna’s Final Decision for 290 Waverley Rd, dated July 31, 2023, para. 111.
14. 14Review Request for 290 Waverley Rd, Goodmans LLP, dated August 30, 2023, para. 7, p. 2.
15. 15Review Request for 290 Waverley Rd., Goodmans LPP, dated August 30, 2023, para. 7, p. 2.
16. 16Ibid., 15, p. 4.
17. 17Ibid., para. 40, p. 10.
18. 18Ibid., para. 42.
19. 19Final Decision and Order for 290 Waverley Rd., dated July 31, 2023, para. 92.
20. 20Final Decision and Order for 290 Waverley Rd., dated July 31, 2023, para 95.
21. 21Review Request for 290 Waverley Rd, Goodmans LLP, dated August 30, 2023.
22. 22Final Decision and Order for 290 Waverley Rd., dated July 31, 2023, para. 105.
23. 23Ibid., para. 104.
24. 24Ibid., para. 103.
25. 25Final Decision and Order for 290 Waverley Rd., para 106.
26. 26Ibid., para. 81.
27. 27Review Request for 290 Waverley Rd., Goodmans LLP, para. 53, p. 13.
28. 28Review Request for 290 Waverley Rd., Goodmans LLP, dated August 30, 2023, para. 76.
29. 29Final Decision and Order for 290 Waverley Rd, dated July 31, 2023, para. 77.
30. 30(SCC, 2019) para. 102-103.