Toronto Local Appeal Body

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

Date:

2023-11-27

22 238761 S45 03 TLAB

Himmel (Re), 2023 ONTLAB 157

REVIEW REQUEST ORDER

Issuance Date:

November 27, 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. HIMMEL

Applicant(s):

D. IGELMAN

Property Address:

43 TWENTY FOURTH ST

COA File No.:

21 218404 WET 03 MV (A0496/21EYK)

TLAB Case File No.:

22 238761 S45 03 TLAB

Hearing Date(s):

April 11, 2023, May 11, 2023, May 16, 2023, June 30, 2023, July 6, 2023, and September 7, 2023

Decision Delivered By:

TLAB Chair, D. Lombardi

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

D. Igelman

Appellant

M. Himmel

C. Kapelos

Participant

Long Branch Neighbourhood Association

REVIEW REQUEST NATURE AND RULE COMPLIANCE TO INITIATE

1On November 24, 2022, the City of Toronto (City) Committee of Adjustment (COA) refused three (3) variances to permit the construction of a new detached dwelling with an attached garage (Application) at 43 Twenty Fourth Street (subject property).

2Mohammed Himmel (Appellant), the owner of the subject property, appealed the COA’s decision to the Toronto Local Appeal Body (TLAB) which set a hearing date to hear the Appeal for April 11, 2023.

Prologue

3The TLAB issued a Notice of Hearing (NOH) for Hearing Day 1 which set various due dates for the election of status and the pre-filing of requisite documents in the Appeal matter.

4The Appellant retained Christina Kapelos as his legal counsel and David Igelman as an expert land use planner.

5On March 14, 2023, prior to the first Hearing Day, the Long Branch Neighbourhood Association (LBNA) brought a Motion before the TLAB to cure its inadvertence in failing to elect Party status. The LBNA sought Party status for the Association as well as Participant status for both Christine Mercado and Andy Choles.

6In a Motion Decision and Order (Motion Order) dated April 5, 2023, TLAB Panel Member Ted Yao (presiding Member) allowed Ms. Mercado and Mr. Choles the Participant status requested and granted the LBNA Party status.

7The Motion Decision allowed the TLAB to accept late document disclosures already filed in the matter and marked ‘Late’ by staff.

8As a result, this settled the matter of late election of status and relieved time deadlines for the LBNA’s pre-filing of documents in the Appeal.

9The TLAB’s Rules of Practice and Procedure (Rules) require that a witness pre-file the following:

• “Documents,” that is, “a copy of every document that they intend to rely on¹, and
• “Witness Statements”, “a written outline of their intended evidence.²

10Mr. Igelman and Ms. Mercado were the main witnesses in the Hearing and both complied with the deadline of March 13, 2023, set in the NOH.

11However, after reviewing Mr. Igelman’s Expert Witness Statement (EWS), Ms. Mercado subsequently filed a fifty-four (54) page Response document on March 27, 2023, consisting of several exhibits, including two (2) videotapes of the area in question.

12In an email to the TLAB on March 29, 2023, Ms. Kapelos objected to Ms. Mercado’s Response filing, stating that it contained in her words “new evidence.”

13She advised that if Ms. Mercado did not withdraw those exhibits, and specifically the two videos included therein, then the Appellant had directed her to bring a Motion to strike that evidence, returnable at the commencement of Hearing Day 1.

14The exhibits were not withdrawn, and on April 4, 2023, Ms. Kapelos filed the above-noted Motion with the TLAB.

15At the commencement of the Hearing on April 11th, the presiding Member heard the Motion and in a Motion Decision and Order (Motion Decision 2) issued on April 26, 2023, dismissed Ms. Kapelos’ Motion.

16That Motion Decision 2 permitted the introduction of the videos in question pursuant to the Practice Direction 4.

The Appeal Hearing

17In total, the subject Appeal matter consumed six (6) non-consecutive Hearing Days, scheduled between April 11, 2023, and September 7, 2023.

18After hearing the Appeal, the TLAB issued a Final Decision and Order (Final Decision) on September 18, 2023, refusing the variances requested.

19On October 18, 2023, Ms. Kapelos (Requestor), on behalf of the owner of the subject property, filed a Request for Review (Review Request) of Member Yao’s Final Decision, as permitted under the TLAB’s Rules of Practice and Procedure (Rules).

20The Review Request alleges that the decision-maker violated the rules of natural justice and procedural fairness and made errors of law or fact which would likely have resulted in a different Final Decision or final Order.

21The Requestor asks that the TLAB cancel the Final Decision issued by Member Yao and order a ‘de novo’ Hearing before a different TLAB Member as permitted by subrule 31.16 (c) of the Tribunal’s Rules.

22An administrative screening was conducted by TLAB staff and the Review 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

23Rule 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 it has been structured to facilitate findings with respect to Rule 31.17 (‘Grounds for Review’).

24These grounds are the only basis upon which an Appeal Decision may be set aside and a new Hearing ordered.

25Before 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 affecting a Party.
• Fundamental to assessing the assertions made in the Review 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.

26It is incumbent on the presiding Member who heard the appeal to listen to the evidence and make decisions based on the application of law, policy, evidence, and the public interest.

27A Member’s decision is based on that Member’s discretionary perception of the evidence and relevant considerations.

28It is with these considerations in mind that I’ve read and reread the Member’s Final Decision and Order, the Review Request, the submissions filed in this matter as to the main TLAB hearing events, and Member Yao’s two (2) Motion Decisions and Orders, above cited.

29The Review Request filing consists of some one-hundred-and-forty (140) pages, including the requisite ‘Overview of the Review Request’, the Grounds for the Review Request, and the following case law, the first from the Supreme Court of Canada, and the second from the Ontario Superior Court:

• Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2013 ONSC 917 (CIBC v. Deloitte), and
• R v. Mohan, 1994 CanLII 80 (SCC), 1994 SCC 80, 1994 CarswellOnt 66 (R v. Mohan)

30Additionally, I reviewed the Digital Audio Recordings (DAR) of the six (6) Hearing days of various lengths.

Review Request Grounds

31It is important to note that the reviewer applies the language of Rule 31 and does not enter into a set of considerations that depart from the responsibilities of a Review.

32A 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.

33On 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.

34The 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.

35In this regard, as the Divisional Court held in Roozbuilt Ltd. V. Jamieson, a decision on a Leave to Appeal Motion regarding a TLAB Review Request Decision for 9 Thirty Eighth St.:

“The review process is not purely adjudicative in nature. It is important to remember that a TLAB decision, both initially and in the review, requires determinations about the appropriate policy to be applied to a particular case and in light of the evidence before the tribunal…Policy considerations and their interpretations and application play a significant role in the TLAB decision making process.” ³

36In the ‘Overview of Review Request’, the Requestor sets out the basis for the Request pursuant to Rule 31.17 (b) and (c) and the rationale as to why Mr. Himmel asks that the presiding Member’s Final Decision of September 18, 2023, be reviewed.

37In 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)

38This 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.

39Rule 31.16 of the TLAB’s Rules outlines, by authority, the only three 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.”⁴

40The Request asserts that the decision-maker in the Final Decision:

a) Violated the rules of natural justice and procedural fairness by failing to provide adequate or any reasons for his decision to refuse two (2) of the three (3) variances requested.

b) Contains several significant errors of law that the TLAB would likely have reached a different decision had such errors not been made, including:

a. Failing to apply section 45(1) of the Planning Act (Act) to two of the three variances sought;

b. In making a determination, misapplied section 45(1) of the Act concerning one variance he did consider by relying upon a guideline;

c. Incorrectly applied case law in arriving at the Decision;

d. Wrongly ignored expert opinion evidence as a result of incorrectly applying case law and misapplying section 45(1) of the Act; and

e. Made unreasonable inferences based on his incorrect application of the case law and ignored evidence.

Did the Decision-Maker Violate the Rules of Natural Justice and Procedural Fairness?

41Although the Requestor’s Review Request is thorough and provides evidence supporting the allegation that the decision-maker violated the grounds outlined in sections b) and c) of Rule 31.17, the reasons outlined in this regard are not easily distinguishable from each, overlapping at times throughout the document.

42An example can be found on page 8 of the Review Request under the heading ‘Errors in Law’, where the Requestor introduces the subheading - ‘Error of Law in Failing to Apply Legal Test to the Variances Sought and Breach of Procedural Fairness for Failing to Provide Reasons’.

43In paragraph 12, the Requestor states the following:

“…Member Yao states that the variances must comply cumulatively and individually with the tests under section 45 of the Act but never mentions the setback variances again, other than listing them in a chart. Not only is this an error of law, it is a breach of procedural fairness by failing to make a decision on an application in its entirety, and thereby failing to provide adequate, or any, reasons for the Decision with respect to two (2) of the three (3) variances requested.” (my emphasis)

44Although this is the only section in the Request document in which the Requestor explicitly puts forward the ‘violated the procedural fairness’ argument, the Requestor’s propensity to overlap the reasons and evidence between Rule 31.17 (b) and (c) occurs throughout the Review document.

45This makes the review somewhat more difficult for the reviewer to undertake.

46Therefore, to simplify the exercise and to make this Review Request decision easier to read, I will first consider whether the Request has provided compelling grounds that demonstrate that the decision-maker violated the rules of natural justice and procedural fairness, as outlined in Rule 31.17(b) of the TLAB’s Rules.

47In addressing the question of procedural fairness, the Court, in Knight v. Indian Head School Division No. 19, found that “The concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case.”⁵

48Similarly, in Baker v. Canada (Minister of Citizenship and Immigration, the Court found that the values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.⁶

49Regarding the case at hand, the Requestor asserts that nowhere in his Final Decision does the presiding Member address the variances for the south side yard setback (Variance #2) and south roof eaves setback (Variance 3).

50In doing so, the Requestor notes that the presiding Member fails to provide adequate, or any, reasons in the Final Decision regarding Variances 2 and 3, when the Planning Act requires that the variances must comply, individually and cumulatively with the statutory tests.

1As a result, Ms. Kapelos alleges that the presiding Member “failed to address the application that was before the Tribunal in its entirety”⁷ which the Requestor asserts is a breach of procedural fairness.

51Furthermore, although the Requestor acknowledges that the test under section 45(1) of the Act is “disjunctive,”⁸ she, nevertheless, contends that “…it is to be applied to each variance sought.”⁹

52It is important to remember that an 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.

53An application for a variance has been described by the courts as a ‘privilege’, not a right, and while there is a right to make such an application, there is no entitlement that such be granted.

54Hearings before the TLAB are considered ‘de novo’, meaning the entire application must be considered ‘anew’, as if it has not been heard before. The burden of proof is on the Applicant, even when they are not the Appellants.

55In considering an application, the TLAB holds the public interest as paramount; the public interest evokes a consideration of the merits and demerits of the request.

56The public interest is expressed through the Official Plan and zoning by-laws, and departures to be approved therefrom must be expressed with regard to their tenets on the four tests, policy and principles of good community planning.

57As the Divisional Court found in its decision in Plotkine v. Seindenfeld, “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.” ¹⁰

58In Vincent v. DeGasperis (DeGasperis), the Divisional Court held that the support base for the departure from the zoning by-law is to be reflected through reasons in a decision that addresses the statutory tests and policy.

59In DeGasperis, the Court found that a variance must satisfactorily and independently pass all applicable policy and the four statutory tests to be granted, and in the event of an appeal, the tribunal, in its reasons, must set out whatever may be reasonably necessary to demonstrate how it did so.

60However, jurisprudence established by tribunals such as the TLAB and Divisional Court has recognized that 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.

61In Simon v. Bowie, the Divisional Court did not agree with DeGasperis that the appeal tribunal needed to apply each test “entirely separately and formulaically.”¹¹

62Furthermore, this obligation is not prescribed for a decision that refuses a variance or variances, as the failure of any one of the tests precipitates the refusal.

63It is tautology in the jurisprudence of the Ontario Land Tribunal 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.

64In reading the Final Decision, the facts outlined by Member Yao in his analysis of the proposal before him, invoke the ambit of the terminology in case law that if the decision-maker undertook an analysis and its considerations in totality “to the extent necessary,” he or she was not required to comprehensively assess the merits of each variance, namely the residual variances requested.

65In the case at hand, Member Yao expressly identified Variance #1, to increase the floor space index (FSI) from the maximum of 0.35 times the lot area to 0.63 times, as the ‘key variance’ of importance with respect to the application before him.

66In the Zoning By-law, FSI is the numerical indicator of what the OP refers to as ‘density’ and density, in this context, refers to the size of the building in relation to the lot on which it is located and the neighbouring properties.

67As noted in paragraph 7 in the Final Decision, under the subheading ‘ISSUES AND ANALYSIS’, Member Yao confirmed the issue of density on the subject property as the crux of the matter and essential to whether the Application would succeed.

68In that paragraph, he begins his analysis of the proposal as follows:

“The proposal must maintain the general intent and purpose of the Official Plan, particularly the key provision 4.1.5, requiring that the density of near residential properties be ‘respected and reinforced’.”¹²

69The question is whether the proposal maintains the general intent and purpose of the OP Policy 4.1.5 b) and c).

70The core of the opposing Party’s concern is that the proposed dwelling is too big and out of character within the neighbourhood and, therefore, does not respect and reinforce the existing neighbourhood context.

71Member Yao heard extensive testimony and evidence in this regard from the Appellant’s expert planner, Mr. Igelman. His testimony alone consumed two (2) Hearing days and the issue of density and the FSI variance can be heard being discussed at great lengths in the May 11, 2023, Hearing Day 2 DAR recording (timestamped: 02:33:56) within the context of Mr. Igelman’s defined geographic neighbourhood.

72The presiding Member addressed this evidence in some detail in his analysis in the Final Decision, at paragraph [7]. He concluded that analysis with the following statement at paragraph [17]:

“At the end of the day, it is Mr. Himmel’s obligation to justify compliance with the tests and 4.5.1 (sic), whether the neighbourhood character is respected and reinforced…the proponent has failed to demonstrate Official Plan compliance.”¹³

73I find that Member Yao was alert to the issues in this regard. I also find that it was sufficient and appropriate, and properly grounded and reasonable, therefore, to refuse the Application on the basis of failing the OP test.

74In other words, the inability to satisfy the general intent and purpose of even one of the applicable policies is fatal to the ability of a variance to satisfy the test respecting the Official Plan and, consequently, Section 45(1) of the Act in its entirety.

75The following excerpt from a recent decision written by the TLAB Vice-Chair for 8 Edgehill Rd. provides established jurisprudence and guidance in this regard:

“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.”

76Member Yao concluded that the FSI variance did not satisfy OP Policy 4.1.5 and, therefore, the Application should be refused. He did so after hearing extensive evidence from the Applicant.

77Therefore, by refusing the first variance requested, there was no requirement for the Member to make findings in his Final Decision respecting the other two less consequential variances sought by the Applicant, one for a minimum side yard setback adjustment of 0.3 m (1 ft), and the other for a roof eaves projection.

78I find no violation of the rules of natural justice or procedural fairness in the presiding Member’s actions in this regard.

Did the Decision-Maker Make Errors of Law and Fact?

79In the ‘Overview of Review Request’ section of the Request, Ms. Kapelos asserts that the decision-maker, in refusing the variances requested, made five (5) errors of law such that the TLAB would likely have reached a different decision had such errors not been made.

80I have cited those alleged errors in paragraph [34], above, as a. through e. of subparagraph b).

81For the purposes of the discussion, and to facilitate a more efficient analysis of each ground, I will distill the errors of law alleged to have been committed by the presiding Member into the following two overriding errors: i) Applied the wrong legal test; ii) Mis-applied case law; and iii) Ignored evidence.

i. Wrong Legal Test

82The Requestor alleges that the presiding Member made an error of law by applying the wrong legal test on two occasions. The first error relates to the application of the OP test under s. 45(1) of the Act, and the second relates to the assessment of the FSI variance against the Long Branch Neighbourhood Character Guidelines (Character Guidelines).

83In the first instance, Ms. Kapelos asserts that in concluding that “Official Plan compliance”¹⁴ has not been demonstrated (emphasis on the word ‘compliance’), Member Yao applied the wrong test.

84She contends that the correct test is not compliance but, rather, whether the variance maintains “the general intent and purpose of the Official Plan.”

85In reviewing the Final Decision, I have concluded that Member Yao, in fact, did identify the appropriate statutory test under s. 45(1) of the Act as is evidenced in the first paragraph (para. 7) under the heading ‘ISSUES AND ANALYSIS’.

86There, he states the following:

“The proposal must maintain the general intent and purpose of the Official Plan…” (my emphasis) and then proceeds to identify the Policy 4.1.5 provision of importance.

87He, again, utilizes the correct language at the end of the Final Decision concluding the following:

"...and so the proponent has failed to demonstrate that the FSI variance requested maintains the intent of the Official Plan and zoning by-law…”¹⁵

88OP Policy 4.1.5 provides direction for assessing the “fit” of development within a neighbourhood and contains within it development criteria that are intended to give greater specificity regarding the expectations for development in Neighbourhoods.

89Understandably, the public generally focuses on the maximum FSI provision in the Zoning By-law. The test set by OP Policy 4.1.5, however, is not the maximum FSI number set in the By-law, but the prevailing density in the broader and immediate neighbourhood as described in OP Policy 4.1.5. The maximum FSI number in the Zoning By-law serves as the threshold beyond which the requirement for a variance is triggered.

90The OP directs that a geographic neighbourhood be established to assess neighbourhood character. Much of the testimony and evidence provided by Mr. Igelman on Hearing Day 2 centred on discussing his geographic neighbourhood and the area’s existing physical character.

91Policy 4.1.5 requires the decision-maker to consider whether the proposed new development “fits into” the character of the existing neighbourhood. Member Yao was alert to this consideration and undertook this analysis in the Final Decision (see paragraphs [7] – [17]); he found that the proponent had failed to demonstrate this.

92Therefore, I do not find that Member Yao applied the “wrong” statutory Planning Act test in this regard.

93The next alleged error of law is that the decision-maker assessed the FSI variance against the Character Guidelines and that this was “…entirely improper.” ¹⁶

94Ms. Kapelos contends that Member Yao based his conclusion that the Application failed s. 45 of the Planning Act on the proposal failing to ‘comply’ with the Character Guidelines because “…in [his] opinion, the design does not come close to the bull’s eye.”¹⁷

95Ms. Kapelos contends that s. 45 “…does not speak to, nor require compliance with, any Guidelines. Similarly, she argues that the Guidelines “do not carry the status to overturn a refusal of a minor variance application simply because there is “compliance with the Guidelines.”

96She also contends that coming close to the bull’s eye is not a test under the s. 45 of the Act.

97The Character Guidelines and their consideration with respect to the subject Application were a significant issue of contention between the opposing Parties during the Hearing. This was addressed by the presiding Member in his Final Decision.

98I find no evidence that Member Yao either required the Application to ‘comply’ with the Guidelines or explicitly stated that compliance with the Guidelines was somehow one of the statutory tests.

99Rather, Member Yao discusses the Guidelines as being “useful” and “helpful” to the decision-maker in assessing whether the design of the proposed dwelling respects and reinforces the prevailing physical character and whether the variances are desirable and minor, in paragraph [35] of the Final Decision .

100The use of words such as “useful” and “helpful” by Member Yao to describe the consideration and application of the Character Guidelines suggests a less prescriptive definition than the word “compliance.”

101This is confirmed in statements he made at the Hearing, specifically on Hearing Day 2, when he referred to the Guidelines “…as providing direction in decision making and are a useful tool to help assess development applications.” (timestamped 04:33:25)

102His understanding of the utilization of the Character Guidelines in assessing the proposal is further supported in the following excerpt from paragraph [18] of the Final Decision, where he writes:

“These (Guidelines) are a council approved document intended as a tool (my emphasis) for ‘Builders” and “decision makers” in Long Branch…It (Guidelines) is not a Secondary Plan and has not been legislatively placed in the Official Plan under the Planning Act, where it could be appealed to the Ontario Land Tribunal.”

103As noted above, the density of the proposal was, in the presiding Member’s opinion, the crux of this matter.

104The LBNA Character Guidelines hone in on the physical characteristics that define the Long Branch neighbourhood and contain specific design parameters. They were approved by City Council as an implementation framework to be applied to consideration of development applications in the neighbourhood.

105They are thus a valuable detailed expression of the intent of OP Policy 4.1.5, and I find that the presiding Member used them in that way.

106As to the use of the phrase “coming close to the bull’s eye,” the presiding Member references the term “bull’s eye” in the Final Decision as an analogy used by Ms. Mercado in her testimony. In using this analogy, she suggests that as many elements in the Guidelines checklist as possible should be respected by the proposed design.

107Member Yao borrows the same terminology and uses it in paragraph [36] stating that in “his opinion,” the design does not come close to the bull’s eye. However, he does not identify or state that this is one of the statutory tests that must be met, nor does he use the Guidelines as the yardstick to refuse the Application.

108Therefore, based on the above, I find that the presiding Member applied the Guidelines appropriately and that this was neither “improper’ nor an error of law as the Requestor submits.

ii. Mis-applied Case Law

109Ms. Kapelos alleges that the presiding Member rejected the owner’s expert planner’s evidence at the Hearing due to counsel’s objection to a line of questioning pursued by the LBNA representative (Judy Gibson) during cross-examination of Mr. Igelman.

110For context, during testimony on Hearing Day 2, Mr. Igelman highlighted his geographic neighbourhood and referenced an analysis of COA variance decisions within that neighbourhood as a justification for the FSI variance requested.

111Ms. Gibson sought to cross-examine Mr. Igelman on his assessment of the neighbourhood’s physical character, specifically concerning the composition of dwelling types in his neighbourhood study area.

112As noted by Member Yao, Mr. Igelman concluded in his Expert Witness Statement that the character of his broader neighbourhood is “eclectic; and then went on to draw certain conclusions based on this eclectic character.”¹⁸

113Upon being questioned on this issue by Ms. Gibson, “…Ms. Kapelos directed him (Mr. Igelman) not to answer the question.”

114In the end, given Ms. Kapelos’ direction to the witness, Member Yao concluded, “It is not permissible to venture a conclusion and refuse to be cross-examined on how that conclusion was reached.”¹⁹

115This matter is addressed by Member Yao at paragraphs [12] through [17] in the Final Decision.

116In taking this position in the Final Decision, the presiding Member references the Superior Court case of CIBC v. Deloitte & Touche²⁰ with respect to the scope of questioning for discovery.²¹

117He notes that in that decision Justice Perrell (sic) went further by confirming that the Court’s Rules of Civil Discovery require that an expert’s findings must comply with the applicable Rule on expert opinions.

118Member Yao then makes the following statement at paragraph [16] concerning the issue before him:

“Mr. Igelman has also undertaken to provide non-partisan evidence in accordance with the TLAB rules on expert witnesses – Ms. Kapelos’ intervention has defeated the purpose of this rule. Ms. Kapelos might say I should have given her a second chance to let the planner respond, and based on the answer given, explained how such an answer would not assist the TLAB. But (sic) she did not do that. It is not my obligation to explain to counsel the risks of any particular trial tactic.”²²

119Ms. Kapelos asserts in the Request that it is the presiding Member’s obligation to make a ruling on an objection when the objection is made. Furthermore, she contends that instead of ruling on counsel's objection to the line of questioning, Member Yao directed the Parties to make submissions during closing arguments.

120In doing so, she submits Member Yao used counsel’s objection and lack of testimony from the expert planner as a reason to not accept the evidence of the only expert planner to testify in his Final Decision. The Review Request cites the Supreme Court of Canada case in R v. Mohan²³ regarding the admissibility of evidence, especially of expert opinion evidence.

121Ms. Kapelos contends that this is an error of law because Member Yao failed to make a ruling on that objection and “misdirected himself” (her term) concerning the evidence that was tendered by Mr. Igelman by “using the fact that an objection was raised as a reason for rejecting his evidence and any submissions counsel for the Appellant wished to make stemming therefrom.”²⁴

122Finally, she asserts that Member Yao misapplied the case law he referenced on this point, even stating that the references cited by the presiding Member of Justice Perrell’s decision were improperly paraphrased.

123On the question of whether Member Yao made an error of law by failing to make a ruling on an objection during Hearing Day 2, I find no such error occurred.

124I also find that the presiding Member’s arguments made in paragraph [16] of his Final Decision compelling.

125Objecting to a line of questioning in cross-examination that is clearly relevant to the matter at hand is a perilous tactic at a Hearing and it is not incumbent on the trier to explain the risks of such a tactic.

126I disagree with the Requestor that the presiding Member used the objection as a reason for rejecting the evidence tendered by the expert planner. In fact, after reviewing the DAR recordings, and specifically the Hearing record for Day 2, it is evident that Member Yao attempted to provide Mr. Igelman and Ms. Kapelos with different opportunities for the Applicant to assist the presiding Member in understanding the character of the neighbourhood and whether the proposal respected and reinforced that character.

127In fact, not satisfied with the initial submissions made in this regard, Member Yao allowed further submissions to the TLAB to assist in determining neighbourhood character for the purposes of establishing the prevailing types that exist in the neighbourhood.

128It is not the presiding Member’s responsibility to force a witness to provide evidence nor is it in their interest as an impartial trier of facts to draw conclusions from a counsel’s inferences regarding a witness’ testimony and evidence.

129Given the referencing to Mr. Igelman’s evidence and testimony by the presiding Member in the Final Decision and the extensive footnoting in that regard (see the bottom of page 7, below paragraph [21] in the Sept. 18, 2023, Decision), I find that the Requestor is “grasping at straws” to use a colloquial term, in asserting that Member Yao used counsel’s objection and the lack of testimony from Mr. Igelman to not accept his evidence. I find no proof to substantiate this assertion.

130Concerning the Requestor’s contention that Member Yao improperly paraphrased references in the CIBC v. Deloitte & Touche decision, I am not prepared to make a determination regarding the pleadings in that specific case as this line of argument is not germane to my consideration of the grounds for the Appeal in this matter.

iii. Ignored Evidence

131The requestor asserts that in considering the Character Guidelines, the presiding Member made an error of law by ignoring the only expert opinion evidence before the Tribunal that the Application did not conflict with the Guidelines.²⁵

132Ms. Kapelos submits that in the Final Decision, Member Yao states that neither the witness (Mr. Igelman) nor legal counsel (Ms. Kapelos) took him through a checklist of the Character Guidelines prepared by the owner’s architect, Mr. Arsenault.

133However, Ms. Kapelos contends that this statement by the presiding Member is contradicted by his subsequent statement in the Final Decision (at paragraph 19) that Mr. Igelman took the position that the Guidelines “have been met, as evidenced by the checklist submitted to the Committee.”

134Although these two statements may appear somewhat contradictory, a more judicious reading of the Final Decision reveals that this is not the case, and I see no such error by the presiding Member in this regard.

135Member Yao did not ignore Mr. Igelman’s evidence; in reality, as noted above in this Review Request Decision, Member Yao dedicated a significant portion of his analysis in the Final Decision to the Character Guidelines and their application to the proposal.

136Although Ms. Kapelos is correct in asserting that Mr. Igelman assessed the Guidelines to assure himself that the application did not conflict, he also “…did not rely upon them (the Guidelines) in forming my opinion.”²⁶

137Given that neither Mr. Igelman nor Ms. Kapelos addressed the specifics regarding Mr. Arsenault’s Checklist’, nor was Mr. Arsenault called as a witness, the presiding Member chose to “put it (the Checklist) aside” and, instead, focus on the four arguments put forward by Ms. Kapelos and highlighted in the Final Decision, commencing at paragraph [24].²⁷

138Member Yao devotes the last six (6) pages of his Final Decision to addressing Ms. Kapelos’ arguments related to the proposal and the variances. This extensive analysis, which includes the inclusion of, and references to several photos and diagrams, also discusses the evidence and testimony from Mr. Igelman related to the Character Guidelines.

139In the end, the presiding Member preferred Ms. Mercado’s evidence opposing the proposed design of the new dwelling given her submission that it would be the first such design, post-January 2018²⁸, and represent an “inflection point for the street and block segment.”

140Member Yao agreed, concluding that the proposed two-storey plus the “prominent”²⁹ integral garage design, discouraged by the Character Guidelines, would result in a dwelling that would not ‘fit’ the area's character and would be contrary to the street’s rhythm.

141In doing so, he found that the proposed design would not respect and reinforce the prevailing neighbourhood character, a key policy criterion of the OP.

142I find no error arising from the presiding Member’s acceptance of one opinion made over another in this regard, in proper circumstances, even as between lay and expert opinion, even in the circumstances where the only expert opinion evidence before the Tribunal was that of Mr. Igelman.

143Although expert testimony at TLAB Hearings is an expectation, it is not a necessity. Such testimony is provided to assist the Tribunal in its function of deliberating on the issue(s) before it.

144However, the TLAB Member hearing from a qualified expert witness has the discretion to decide how much weight he or she will accord that evidence, what evidence is relevant, and whether to prefer one over the other.

145That 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.

146The TLAB’s Rules and Practice Directions provide a wide latitude for the role of lay citizen witnesses to be heard and it is for the Member, the gatekeeper of qualifications, credibility assessment, and the weighing of opinions to sort distinctions in the evidence.

147In the case at hand, I find that the presiding Member fulfilled his duties as the decision-maker and exercised the discretion at his disposal with due regard for the evidence before him. He heard the evidence but was swayed by and preferred Ms. Mercado’s, which is ultimately the Member’s call.

148I find no support that the presiding Member ignored Mr. Igelman’s evidence concerning the Character Guidelines. He was alert to the issues of significance in the matter before him, specifically the massing, scale, and density of the proposed dwelling and its ‘fit’ within the neighbourhood and heard for the Parties and Participants during the six Hearing days.

149Finally, the Requestor also asserts that the presiding Member rejected the admissibility of Character Guidelines as evidence when no such argument was made and then, “wrongly ignored submission on the evidence before coming to his Decision.”

150Ms. Kapelos is referring to the following statement that the presiding Member made at paragraph [20] in the Final Decision, “The TLAB has rejected the argument that the Guidelines should not be admitted as evidence.”

151In this regard, I contend that Ms. Kapelos may have misinterpreted the referenced statement as the presiding Member making a ruling on the rejection of the Character Guidelines.

152In citing the April 23, 2019, TLAB Decision for 10 Lake Promenade in this regard, the presiding Member was not rejecting the introduction of the Character Guidelines or their relevance,

153Rather, he cited that Tribunal Decision, which addressed the applicability and relevance of the Character Guidelines to minor variance and consent applications in the Long Branch area, in response to Mr. Igelman’s position that he did not rely upon them to form his opinion.

154The decision in 10 Lake Promenade confirmed that the Character Guidelines were useful in assisting in clarifying how to evaluate the physical character of the Long Branch neighbourhood.

155Consequently, I see no intent by Member Yao to dispute the admissibility of the Character Guidelines at the Hearing or to wrongly ignore submissions on the evidence before him as asserted by Ms. Kapelos.

156On the contrary, I see this as the presiding Member attempting to confirm them as being relevant to the proposal for the subject property which all Parties agreed is in the geographic area that is subject to the Guidelines.

CONCLUSION

157I have reviewed the Final Decision as a whole and considered it in the context of decision-making by the TLAB.

158The 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 the evidentiary findings, absent any of the identifiable constraints in the Rules, I am to support the Decision.

159Rule 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

160In identifying similar (although not identical) language in the rules of the former Ontario Municipal Board (OMB), now the Ontario Land Tribunal, 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.

161I 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, ignoring expert opinion, or authorizing a variance in the absence of evidence or applying OP Policy incorrectly.

162I find that the presiding Member considered the opinion evidence of both the Applicant’s expert land use planner and Ms. Mercado and reached a reasonable outcome. I find no flaw in the reasoning, or the decision delivered.

163Even if I had found that the Review Request made an error of law with respect to the assertions alleged in the Review Request, the Requestor has not provided sufficient 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.

164Therefore, in the matter of the Review Request in question, I find that there are insufficient grounds established under Rule 31.17 b) 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

165The Review Request is refused, and the Final Decision and Order of Member Yao, dated September 18, 2023, is confirmed.

D. Lombardi

TLAB Chair, Panel Member

Footnotes

1. 1Rule 16.2, the TLAB’s Rules of Practice and Procedure
2. 2Rule 16.4, the TLAB’s Rules of Practice and Procedure
3. 3Roozbuilt Ltd. v. Jamieson, 2002 ONSC 2029, dated April 4, 2022, para. 32.
4. 4TLAB’s Rules of Practice and Procedure, as constituted after December 2, 2020, p. 44.
5. 5Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, para. 682.
6. 6Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, para. 28.
7. 7Member Yao’s Final Decision and Order for 43 Twenty Fourth St., dated September 18, 2023, para. 11.
8. 8Ibid.
9. 9Ibid.
10. 10Plotkine v. Seindenfeld, 2014 ONSC 4157 (Div. Ct.), para. 11-16.
11. 11Simon v. Bowie, 2010 ONSC 5989, 2010 CarswellOnt 10838, para. 15.
12. 12Member Yao’s Final Decision for 43 Twenty Fourth St., dated September 18, 2023, para. [7].
13. 13Member Yao’s Final Decision for 43 Twenty Fourth St., para. [17].
14. 14Member Yao’s Final Decision for 43 Twenty Fourth St., dated September 18, 2023, para. [17].
15. 15Ibid., para. [36].
16. 16Ms. Kapelos’ Review Request, dated October 18, 2023, para. 30, p. 13.
17. 17Ibid., para. 29.
18. 18Member Yao’s Final Decision for 43 Twenty Fourth St., dated September 18, 2023, para. [14].
19. 19Member Yao’s Final Decision for 43 Twenty Fourth St., dated September 18, 2023, para. [14].
20. 20CIBC v. Deloitte & Touche, 2013 ONSC 917, para. 65.
21. 21Member Yao’s Final Decision for 43 Twenty Fourth St., dated September 18, 2023, Footnote 4.
22. 22Ibid., para. [16].
23. 23R v. Mohan, SCC 80, 1994 CanLII 80 (SCC), 1994 CarswellOnt 66, Tab 5.
24. 24Ms. Kapelos’ Review Request for 43 Twenty Fourth St., dated October 18, 2023, p. 10, para. 21
25. 25Mr. Igelman’s Expert Witness Statement for 43 Twenty Fourth St., dated March 13, 2023, Tab 8, paragraphs 141-142.
26. 26Member Yao’s Fina Decision for 43 Twenty Fourth St., dated September 18, 2023, Footnote 8.
27. 27Ibid., para. [21].
28. 28The Long Branch Neighbourhood Character Guidelines were approved by City Council on January 31, 2018.
29. 29Ibid., para. [28].
30. 30(SCC, 2019) para. 102-103