Bauer v Carapetian, 2023 ONTLAB 164

Toronto Local Appeal Body

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

Date: 2023-12-01

File: 22 182877 S45 11 TLAB

Citation: Bauer v Carapetian, 2023 ONTLAB 164

REVIEW REQUEST ORDER

Issuance Date: December 1, 2023

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

Appellant(s): T. BAUER

Applicant(s): VFA ARCHITECTURE + DESIGN INC

Property Address: 194 ROSEDALE HEIGHTS DR

COA File No.: 22 130665 STE 11 MV (A0396/22TEY)

TLAB Case File No.: 22 182877 S45 11 TLAB

Hearing Date(s): December 1, 2022, April 21 & 24, 2023

Deadline Date for Closing Submissions/Undertakings: November 16, 2022

Decision Delivered By: TLAB Panel Member R. Kanter

REGISTERED PARTIES AND PARTICIPANTS:

People Type	First Initial. Last Name	Representative
Applicant	VFA ARCHITECTURE + DESIGN INC
Appellant	T. Bauer
Owner	P. Carapetian
Party (TLAB)	P. Carapetian	M. Kemerer
Participant	G. Bogden
Participant	D. A. Hoad
Participant	V. T. Spriet
Participant	Y. Gao
Participant	G. R. Hodges
Expert Witness	V. Fong
Expert Witness	M. Barton

REVIEW REQUEST NATURE AND RULE COMPLIANCE TO INITIATE

1On July 19, 2022, the Committee of Adjustment issued a decision (the “C of A Decision)” allowing the applicant/owner (the “Applicant”) to alter an existing two-story detached dwelling by approving eight variances to construct rear and side third-story additions, including second and third story rear terraces (collectively, the “Variances”).

2On August 18, 2022, T. Bauer, a neighbouring homeowner (the “Appellant”) filed a Notice of Appeal appealing the C of A Decision (the “Appeal”) to the Toronto Local Appeal Body (the “TLAB”).

3On December 1, 2022, Panel Member S. Gopikrishna (the “Member”) commenced an Electronic Hearing scheduled for one day with respect to the Appeal. At the beginning of the Hearing, the Member agreed to allow two Participants who opposed the Variances to present their evidence, following an overview provided by witnesses for the Applicant.

4The Applicant’s counsel (“Mr. Kemerer”) called an architect (“Ms. Fong”) to give expert evidence concerning the design of the altered house. Following Ms. Fong, the Member called on a neighbour and a representative of the Moore Park Residents’ Association (the “MPRA”) to give evidence in opposition.

5The Member then stated he was seeking more information concerning the Applicant’s evidence, and adjourned the hearing.

6On December 19, 2022, the Member issued an Interim Decision and Order concerning 194 Rosedale Heights Drive (the “Interim Decision”).

7The Interim Decision ordered the Applicant to provide:

A. Updated Sun and Shadow Studies, and

B. A planning rationale about how their proposal satisfies various Sections of the Official Plan (the “OP”), with specific reference to Policies 3.1.2 and 4.1.5, as well as how the requested variances maintain the intent and purpose of Zoning by-law 569-2013 (the “Zoning By-law”), by way of addendum to the Expert Witness Statement.

8On April 21 and 24, 2023 the TLAB held a continuation of the Electronic Hearing on the Appeal. Ms. Fong provided additional architectural evidence, and the Applicant’s land use planner (“Mr. Barton”) provided expert land use planning evidence.

9On August 17, 2023, the Panel Member issued a Final Decision and Order (the “Final Decision”). The Final Decision allowed the Appeal, and refused the Variances.

10On September 15, 2023, the Applicant submitted a request for review of the Interim Decision and the Decision (the “Review Request”) to the Chair of TLAB. The Review Request alleges that the Panel Member:

• Violated the rules of natural justice by exhibiting bias
• Made errors of fact and law by requiring the submission of Sun Shadow Studies which were not applicable, and stating that if the floor space index variance failed, the other variances would also fail
• Made errors of law by rejecting expert evidence, and by interpreting Official Plan Policy 4.1.5 and the word “prevailing” solely as an exercise in planning by numbers, rather than requiring a qualitative review

11On October 4, 2023, the Appellant submitted a response to the Review Request (the “Response”) to the Chair. The Response alleges that:

• the procedure followed by the Presiding Member was the embodiment of natural justice and procedural fairness
• there were no errors of fact or law
• “prevailing” requires a quantitative or numerical analysis
• none of the grounds for review were “compelling”

12On October 10, 2023, the Chair designated me in writing to consider the Review Request and Response.

THE LEGISLATIVE AND POLICY FRAMEWORK

13TLAB Rules of Practice and Procedure Rule 31

“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

i. Material Considered

14I considered the following material in conducting this Review:

Documents submitted prior to the Review Request

• the C of A Decision
• the Interim Decision
• the Decision

Documents submitted with the Review Request

• Review Request
• Fong Witness Statement
• Barton WS, Reply to the Responding WS, Addendum to the WS
• Applicant’s Closing Submission
• Reply Submission
• Cases cited:

Ding v. Toronto OMB 14 May 2015

Boucher v. City of Timmins OLT 7 July 2022

Toronto Standard Condominium Corporation #1517 v. City (Toronto)

OMB 21 June 2006

CZ Designs & Consulting Inc. TLAB 16 August 2022

Murdy v. Toronto (City) TLAB 14 October 2022 (36 MacPherson)

Verus Design Inc. TLAB 19 September 2022 (34 Morningside)

Re WeirFoulds LLP TLAB 30 September 2021 Ding v. Toronto OMB 14 May

Documents submitted with the Response

• Response to the Review Request
• Appellant’s Notice of Appeal
• Appellant’s Witness Statement
• Appellant’s Argument
• Oxford Dictionary of English (2nd Edition) – Definitions of “compelling” and “prevailing”.

ii. Did the Member violate the rules of Natural Justice or Procedural Fairness?

15The Review Request states that: “It was clear from the start of the hearing that the Member was determined to side with the Appellant and the Participants.”

At the start of the Hearing, the Member agreed to let Participant Y. Gao and a representative of the MPRA speak following overview evidence by Ms. Fong. According to the Review Request, the Member then “turned the hearing on its head” by adjourning the hearing and ordering that:

a) the sun/shadow studies would have to be revised to be made clear to the Participants; and

b) an Addendum to Mr. Barton’s Witness Statement be produced to provide more information on the relationship between the proposal and OP Policies 3.1.3 and 4.1.5 and the Zoning By-law.¹

16The Review Request also states that this Order was not requested by the Appellant, and it was not for the Tribunal to dictate such an (unorthodox) approach.²

17The Review Request further states that the Member allowed the Appeal on the very same basis on which he adjourned the first day of the Hearing, and submitted that “this was always the intended result by the Member, which was grossly prejudicial and unfair to the Applicant”.³

18The Review Request concludes that the approach taken by the Member was “unprecedented, skewed towards the Appellant and grossly unfair to the Applicant” . . . what the Member did through this exercise was to “put the Applicant to an unnecessary and unfair standard in order that the application would fail”.⁴

19According to the Response, counsel for the Applicant did not object to the process in which the Participants gave evidence following an overview of the proposal. The process was an attempt to proceed with the Hearing in an expeditious and fair manner, which both parties agreed to.⁵

20The Response also noted that the Member advised the Appellant that he would only hear evidence from two, rather than all four of the Participants, to minimize repetition and save time.⁶

21The Response further submitted that the request for further information followed the normal “give and take” concerning the order of witnesses, and supported procedural fairness by allowing the Applicant an opportunity to submit additional material in support of its position.⁷

22I note that the Review Request alleged that the Member’s behaviour from the beginning of the Hearing was unfair to the Appellant.

23If the counsel for the Applicant had any concern about the process adopted by the Member or if any untoward conduct occurred, it should have been objected to by motion or otherwise during the Hearing. Counsel raised a concern focussing on the additional material requested, but did not raise a question of bias. Nor did he object during the course of the hearing, but rather waited to see what the result was, before raising the issue of bias.⁸

24The Review Request also alleged that the Member determined that the Appellant would win from the outset; that the Applicant would face an unfair, unprecedented and unnecessary burden of proving his case; and that the result would be dismissing the Applicant’s case wholesale. These are extremely serious allegations concerning the Member’s responsibility to provide procedural fairness and make a just determination of this Appeal on its merits. However, the Review Request did not provide persuasive evidence to support these allegations.

25I agree with the Response that the process followed by the Member allowed both Parties to be heard, with an additional allowance for the Applicant to hear part of the Appellant’s case first, and then to supplement its case with additional evidence. Thus, I find that the process was consistent with the rules of procedural fairness.

26Rule 31.1 allows a Party to request a review only of a Final Decision or final Order, not an Interim Decision or Order. Consequently, I do not have jurisdiction to review the Interim Decision, or any consequences arising from the Interim Decision.

27The Final Decision comprises of nineteen pages, including an extensive review of the evidence provided by the Applicant’s witnesses, and of the principles relied on by the Member in analyzing the issues and reaching a Final Decision.

28I do not find that the Member exhibited bias, or pre-determined the result prior to hearing extensive evidence. Consequently, I do not find that the Member violated the rules of natural justice or procedural fairness, or exhibited bias.

iii. Did the Member make an Error of Fact and Law?

29The Review Request alleges that the Member made errors of fact and law, including the following:

a) requiring revised sun/shadow drawings, when such studies are not required for single detached residential dwellings;

b) stating that the Applicant did not provide Reply Final Submissions;

c) stating that variances other than the variance for floor space index (“FSI”) would automatically fail, when the evidence was that the other variances were minor in nature.⁹

30According to the Response, the Applicant conceded that the Member did not rely on sun/shadow studies to make the Decision¹⁰; and the Applicant also admitted that that the various variances were integrated and interrelated.¹¹

31I agree that the Decision did not rely on the revised sun/shadow studies. Consequently, the Member’s request for sun/shadow studies does not constitute an error of fact and law, particularly since it was not relied on in the Decision, and could not be an error which would likely have resulted in a different decision.

32There is a minor lack of consistency in the Decision concerning whether or not the Member received Reply Submissions from the Applicant.¹² The Applicant sent Reply Submissions which were posted on the TLAB website, and the Decision thanks both parties for their adherence to the timelines set by the Member. It appears more likely than not that the Applicant sent Reply Submissions and that they were considered by the Member in rendering his Final Decision. Consequently, I find no error of fact and law arising from failure to consider the Applicant’s Reply Submissions.

33The Decision contains an extensive discussion concerning the Applicant’s submissions on the density variance, expressed in terms of floor space index (“FSI”), and the linkage between FSI and other variances:

“The written submissions from Counsel for the Applicants, dated May 15, 2023, states “The following Variances are interlinked: a. main wall height, FSI and front yard setback; and b. number and size of platforms (emphasis in Decision) . . . I otherwise agree with the Applicants that the other group of variances (i.e. FSI, main wall height are interdependent on each other because the Appeal involves variances for FSI, front yard setbacks . . .

As a result, the relationship between the variances related to side yard, depth and the FSI is such that if the FSI variance fails, the proposal, as designed, is not viable. In such an eventuality, it would not be appropriate to approve variances which can interact with, and influence the FSI variance - in other words, I find that the variances which influence, or are influenced by the FSI variance, should fail if the latter fails”¹³

34Counsel for the Applicant claimed that the different variances were interlinked. It is inconsistent for counsel to submit at the Hearing that the variance for FSI was linked to other variances, then allege in the Review Request that the Member made an error of fact and law when he linked the variances.

35I agree with the Applicant’s general statement that the Member has the discretion to approve some variances while rejecting others.¹⁴ He did not do so, in this case. The Member has the power – and the responsibility - to consider each variance individually and cumulatively. The Member’s decision not to approve variances other than FSI, particularly given the Applicant’s submissions of the links between the variance for FSI and other variances, does not constitute an error of fact and law.

36I do not find that the Member has made an error of fact and law by deciding that refusal of the variance for FSI results in failure of the other variances as well.

iv) Did the Member make an Error of Law?

37The Applicant provided uncontradicted evidence that the physical character of the wider neighbourhood (the “Broader Context”) differed from that of properties on the same block and the block opposite the Application (the “Immediate Context”), due largely to the existence of a ravine on the south side of Rosedale Heights Dr. adjacent to the Application.

38The Applicant provided some evidence with respect to density variances in the Broader Context based on Committee of Adjustment Decisions.¹⁵

39According to the Member, the Applicant did not provide any numerical evidence with respect to FSI in the Immediate context”:

“When asked by Mr. Kemerer about how the variances specifically correspond to the emphasis of Section 4.1.5 on the “prevailing type”, Mr. Barton alluded to the challenges in obtaining numerical information about the FSI in the immediate context, and the General Neighbourhood, and stated that he relied on “qualitative analysis” for drawing his conclusions.¹⁶

40The Decision stated that C of A Decisions cannot be used to determine the “prevailing” characteristics, and there was no evidence to determine that the FSI variance respects and reinforces the prevailing building type.¹⁷

41The Request alleged that the Decision contains a number of errors of law in interpreting OP Policy 4.1.5. The most prominent error, according to the Applicant, was the treatment of prevailing height and density solely as a quantitative exercise, engaging in planning by numbers, rather than providing sufficient weight to the qualitative aspects of the Variances.¹⁸

42The Response alleges that OP Policy 4.1.5 necessarily incorporates a mandatory quantitative or numerical analysis, and that the Member acknowledged the practical difficulties in obtaining numerical data, but that did not excuse the Applicant from doing so.¹⁹

43The relevant provisions of OP Policy 4.1.5 can be summarized as follows:

a. Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular: a) patterns of streets, blocks and lanes, parks and public building sites; b) prevailing size and configuration of lots; c) prevailing heights, massing, scale, density and dwelling type

b. The physical character of the geographic neighbourhood includes both the physical characteristics of the entire geographic area in proximity to the proposed development (the broader context) and the physical characteristics of the properties that face the same street as the proposed development in the same block and the block opposite the proposed development (the immediate context). In instances of significant difference between these two contexts, the immediate context will be considered to be of greater relevance.

c. The prevailing building type and physical character of a geographic neighbourhood will be determined by the most frequently occurring form of development in that neighbourhood . . . . some geographic neighbourhoods contain a mix of physical characters. In such cases, the direction to respect and reinforce the prevailing physical character will not preclude development whose physical characteristics are not the most frequently occurring but do exist in substantial numbers within the geographic neighbourhood

d. Zoning by-laws will contain numerical site standards . . . to ensure that new development - will be compatible with the physical character of established residential Neighbourhoods.

44Policy 4.1.5 directs the Member to determine if the proposed Variances respect and reinforce prevailing (emphasis added) heights, density, and other physical characteristics. “Prevailing” means the most frequently occurring (emphasis added) form of development, or in a neighbourhood with a mix of physical characters such as the subject neighbourhood, development whose physical characteristics exist in substantial numbers (emphasis added). Consequently, the Member must consider the prevailing heights and density of other houses in the broader neighbourhood and the immediate context.

45As the Applicant correctly stated, a Member is not required to make a Decision, nor I am I required to base my Review, on other cases heard by the TLAB or similar tribunals.²⁰ Nevertheless, I have considered several of the cases cited by counsel for the Applicant in support of his Review Request.

46The minor variance in TSCC#1517²¹ concerned a reduction of 0.5m in the width of a driveway to be used by a condominium corporation. Neither opposing planning witness objected to the characterization of the variance as minor. This differs from the subject Appeal, where the Appellant and Participants vigorously oppose the characterization of the height and FSI variances as minor.

47The planner for the applicant in CZ Designs²² produced a chart which identified 40 approvals for variances above 0.6 FSI with approvals as high as 1.15 FSI. She pointed out that there are many dwellings, in particular on Old Forest Hill Road, which visually are much larger, denser, higher and have larger massing and scale, including 262 and 257 Old Forest Hill Road, which were built prior to 2010 and were therefore not illustrated on her chart. The planner expressed the opinion that site visits and photos should be used as a tool to understand prevailing building character. She said that especially when an FSI variance is not accompanied by other built form variances, such as height, a qualitative analysis of fit and compatibility is of greater importance than a quantitative assessment focusing solely on the numerical FSI figure. CZ Designs stands for the proposition that a variance may be considered by a qualitative assessment in addition to a quantitative assessment. It does not stand for the position adopted by the Applicant, that a qualitative assessment can completely replace a quantitative assessment.

48In the Versus Design²³ case, the planner for the Applicant did point out that there were larger FSI’s in the Swansea neighbourhood which collectively form the character of this area, although he also pointed out that the collection of data concerning FSI in older neighbourhoods was difficult. Again, this case stands for the proposition that an applicant may rely on other factors in addition to a mathematical exercise, but not that it may ignore numerical comparisons.

49The case of Re WeirFoulds reviewed a TLAB decision in which the presiding member introduced evidence concerning the interpretation of Section 39 of the Planning Act concerning temporary use provisions. The Review Decision noted that S. 39 was not raised by the parties nor discussed during the hearing, and held that the law is clear that a tribunal Member may not substitute their own opinion based on information that has not been provided to a party during a hearing.²⁴ The holding in Re Weirfoulds is clearly distinguishable from the subject Review Request, in which the Applicant submitted two expert Witness Statements, a Reply Witness Statement, an Addendum Witness Statement, Final Submissions and Reply Submissions, all dealing with the evidence concerning whether the Variances met the tests set out in S. 45 of the Planning Act.

50I find that the Member did not make an error of law by rejecting a density variance on the basis that the Applicant did not provide any numerical data concerning the prevailing FSI in the immediate context. Policy 4.1.5 requires the Member to consider the prevailing density in both (emphasis added) the Broader and Immediate Context.

51The Request alleged that the Member made an error of law by requiring the Applicant to undertake a comprehensive study of every property in the broader context.²⁵ OP Policy 4.1.5 requires new development in areas designated Neighbourhoods to respect and reinforce the existing physical character of each neighbourhood, with some modifications for neighbourhoods such as this with a variety of physical characters. The fact that the Member expected a comprehensive study, with appropriate modifications, is a reasonable interpretation of the Policy, not an error of law.

52The Request also alleged that the Member erred in law by defining height only by numbers when it can also be measured by an examination of the prevailing number of stories.²⁶ There were separate Variances for building height (Variance # 2) and maximum number of stories (Variance #3). I do not find that reviewing the Variances for both height and the number of stories constitutes an error of law.

53The Request further alleged that the Member erred in law by not providing sufficient weight to the “quantitative and unchallenged” evidence of Mr. Barton”.²⁷ Given the Requestors’ reliance on the “qualitative” aspects of Mr. Barton’s evidence, I assume that counsel for the Applicant likely intended to refer to “qualitative” in his Review Request.

54As the Response points out, the onus is on the Applicant to meet the tests under S. 45 (1) of the Planning Act, whether or not the Appellant calls any expert planning evidence to the contrary. The Member has discretion with respect to whether he finds that the Applicant’s evidence meets the tests under S. 45 (1); he found it did not do so in this case. I do not find that the Member’s position that the Applicant’s evidence does not meet the required onus constitutes an error of law.

55The Request further alleges that the Member erred by failing to accept Committee of Adjustment (“COA”) data.²⁸ The Decision contains a heading titled “COA Decisions cannot be used to determine the “prevailing type”. The body of the paragraph explains that “The numbers of properties impacted through C of A decisions constitute a small subset of properties . . . COA decisions . . .may be helpful to understand the general pattern of change, but shed no light on the sum total of change in a community, and cannot help determining the “prevailing type”.²⁹

56In my experience, COA Decisions frequently provide evidence of change in a neighbourhood, and are often entered as evidence and considered in TLAB Decisions. In my view, the Member stated his objection to COA Decisions too broadly. Despite his broad statement, the Member noted COA decisions in the Broader Context, and recognized that there was a COA decision at 204 Rosedale Heights Dr. in the Immediate Context of the subject site. In my view, the Member overstated his position with respect to COA decisions in principle, while giving COA decisions some consideration in practice.

57The Applicant provided no evidence or submissions that had the Member not stated his refusal to accept COA Decisions, the result would have been different. Consequently, I do not find that the Member committed an error of law with respect to his comments on the acceptability of C of A decisions which would likely have resulted in a different Final Decision or final Order.

CONCLUSION

58I have reviewed the Decision; the Review Request, Response and Reply (including supporting documentation); and previous TLAB Decisions cited by the Applicant.

59As set out above, I do not find that the Member committed any error with respect to procedural fairness or with respect to fact and law. I do not find that the Member made any error of law, with the exception of his broad statement that COA Decisions cannot be used to determine the “prevailing type”. I find that this statement was inconsistent with the Member’s analysis, and was not central to the Final Decision.

60Rule 31.17 requires that I, as the Chair’s designate, must consider whether the reasons and evidence provided by the Requesting Party seeking review are “compelling”. The Response provided a definition of “compelling” from the Oxford English Dictionary as: “not able to be refuted; inspiring conviction.”³⁰. According to the Appellant, the standard that must be met by the Applicant on this Review Request is extremely high - significantly higher than the “on the balance of probabilities” standard that applies to the initial Appeal.

61In assessing similar (although not identical) language in the rules of the former Ontario Municipal Board (the “OMB”), the OMB 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 has no option but to grant the review relief sought.³¹

62I do not find that the Review Request provided reasons or evidence with respect to a minor error of law that was so compelling that I have no option but to grant the relief sought by the Review Request.

63Moreover, I find that the Final Decision, read as a whole, meets the test for an administrative tribunal as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov. According to Vavilov:

“The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep. Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable.”³²

64In addition, Rule 31.17 c) requires that should I find an error of fact or law, in addition to providing a compelling case for review, the error must also likely have resulted in a different Final Decision. The Review Request has not provided reasons or evidence that the error with respect to the consideration of COA decisions would likely have resulted in a different Final Decision, resulting in approval of the Variances.

65Therefore, I find that the Review Request has not met the standards required under Rule 31.17 b) or c) to cancel the Final Decision or Final Order. Consequently, I will not direct a de novo Oral Hearing before a different TLAB Member.

DECISION AND ORDER

66The Review Request is refused, and the Final Decision and Order of Member Gopikrishna, dated August 17, 2023, is confirmed.

R. Kanter

Panel Member

Footnotes

1. 1Request, par. 17
2. 2Request par. 20
3. 3Request par. 21
4. 4Request par. 23 & 24
5. 5Response par. 10
6. 6Response par. 11
7. 7Response par. 14
8. 8Toronto (City) v. Del Grosso 2023 ONTLAB 125 at par. 15
9. 9Review Request par. 15-16
10. 10Review Request par. 17a.
11. 11Decision par. 61
12. 12they [the Applicants] did not make any [Final] submissions – Decision par [13]; the Applicants sent in Reply Submissions on May 15, 2023 – Decision par. [59].
13. 13Decision, par [61]
14. 14Review Request par. 14 c.
15. 15Decision par. 31
16. 16Decision par. 34
17. 17Decision par. 14 & 64
18. 18Request par. 27, 28 & 29
19. 19Response par. 33
20. 20Request, par. 23
21. 21OMB PL051279 June 21, 2006
22. 22TLAB 22110754 S 45 08 Aug. 16, 2022
23. 23TLAB 109966 S 45 04 Sept. 30, 2022
24. 24Re WeirFoulds 2021 Carswell 14785, 14 OMTR 403 at par. 69-78
25. 25Request par. 31a.
26. 26Request par. 31b.
27. 27Request par. 31d.
28. 28Request par. 31e
29. 29Decision par. 60 e)
30. 30Response par. 47
31. 31Oulahen v. Toronto (City) Canlii 39845 (ONLPAT)
32. 322019 SCC 65 at par. 100