Toronto Local Appeal Body
40 Orchard View Blvd, Suite 211 Toronto, Ontario M4R 1B9
File: 22 118733 S45 08 TLAB
REVIEW REQUEST ORDER
Issuance Date: March 15, 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): A.J. Roth
Applicant(s): WSP Canada Inc.
Property Address: 41 Varna Dr.
COA File No.: 21 205281 NNY 08 MV (A0815/21NY)
TLAB Case File No.: 22 118733 S45 08 TLAB
Hearing Date(s): July 13, 2022; August 9, 2022
Decision Delivered By: TLAB Vice-Chair A. Bassios
REGISTERED PARTIES AND PARTICIPANTS:
People Type
Name
Representative
Owner
Toronto Community Housing
Applicant
WSP Canada Inc.
Appellant
A.J. Roth
Party
Heights Development Inc.
D. Bronskill
Expert Witness
K. Hall
REVIEW REQUEST NATURE AND RULE COMPLIANCE TO INITIATE
1The Committee of Adjustment (COA) approved an application for variances to construct six freehold market townhouse units at 41 Varna Dr (the subject property). The proposal forms part of the Lawrence Heights Revitalization Project.
2The decision of the COA was appealed by Mr. Roth, who is a neighbour and also the Requestor of this Review. Mr. Roth was not represented by counsel and provided evidence at the Hearing on his own behalf.
3Heights Development Inc., on behalf of the Owner (Toronto Community Housing), was represented by Mr. Bronskill and supported by Mr. Hall, an expert in land use planning.
4Five variances to the Site-Specific By-law 1338-2013 were requested: for maximum height and number of storeys, rooftop access and amenity space, setbacks, internal garage entrance and elevation and projections into setbacks.
5Mr. Roth objected to the height of the proposal which he said would block sun and view. He was concerned about shadowing and overlook from the rooftop terraces and he expressed concern that trees on his property would be affected. He objected to the reorientation of the proposed townhouses to front onto Rondale Mews and the reduced setbacks.
6A Decision issued on November 4, 2022, by the Presiding Member Chair Dino Lombardi (the Presiding Member) dismissed the Appeal.
7On November 30, 2022, the Toronto Local Appeal Body (TLAB) received a Request for Review as is permitted under Rule 31 of the TLAB’s Rules of Practice and Procedure (the Rules).
8As the Decision was authored by the Chair, the Vice Chair is mandated to conduct the Review in this case.
THE LEGISLATIVE AND POLICY FRAMEWORK
- 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.
THE REVIEW REQUEST
9Rule 31 has been set out with specific requirements regarding form and content of the submitted materials in support of a Request for Review.
10The Rules have been structured to facilitate findings with respect to Rule 31.17 “Grounds for Review”. These grounds are the only basis upon which an Appeal Decision may be set aside and a new Hearing ordered.
11Before commencing a Review of the grounds asserted in the Request, a reminder of the purpose and parameters of Rule 31 are helpful. These comments are general propositions to be kept in mind in consideration of any Review.
A Review Request is not afforded as an opportunity to re-litigate or reargue a point that was made but not favourably received in the Decision.
In writing a decision, a TLAB Member must consider opinion and evidence, and decide what weight to ascribe to each, in coming to his or her conclusions. The Decision must provide its basis for coming to the conclusion it did, but it does not require an acknowledgement and repudiation (or concurrence with) every argument made, and not received as desired, by the requesting party.
The Grounds for Review mandated under TLAB Rule 31 set a consequential standard for findings, that the reasons and evidence are compelling, and specifically under Rule 31.17 c) that an error of law or fact has been made which would likely have resulted in a different order or decision.
The task of the Reviewer is not to assess the “correctness” of the Decision, nor to take into consideration what another Adjudicator may or may not have decided having been presented with the same evidence in this case. The task of the Reviewer is to establish whether there are arguable, definable errors, and, as well, whether they are of a nature (i.e., are of such significance) that could meet the threshold established in Rule 31.17.
The basis for a decision must be understandable and, preferably, written in plain English. A Decision must reflect a suitable basis for its conclusions, taking into account relevant considerations and applying the law and policy germane to the TLAB’s mandate, including its own deliberations.
12The filings in this case do not fulfil the requirements of the Rules.
13Of particular consequence, the Request does not identify which grounds listed in Rule 31.17 are alleged to apply. Instead, it lists many of the contested issues at the Hearing and repeats the position of the Appellant with respect to matters such as height, shadow (and the shadow study) and trees.
14The TLAB is committed to sustaining an accessible forum for the resolution of land use disputes within its mandate. On occasion, this means that latitude will be granted to those who are self-represented and those who are not familiar with the TLAB Appeal process. This does not mean, however, that a Party initiating a Hearing or a Review Request before the TLAB is excused the basic responsibilities and respect that must be accorded to the TLAB process and to the other Parties and Participants engaged in the matter.
15It is not for the Reviewer to read between the lines and intuit the grounds that the Requestor might rely upon to cause the Decision to be set aside. In filing a Request for Review, it is the most basic responsibility of the Requestor to acquaint themselves of the Rules and provide, at the very least, submissions to address the essential requirements.
16The approach taken in this Request focused, essentially, on contesting the findings of the Presiding Member. This approach does not apprehend the purpose of the Rule 31 provision.
17For a Review Request to be successful, the reasons and evidence contained in the Request must be compelling and demonstrate that the TLAB Decision was deficient in because of one of the five grounds listed in Rule 31.17. It is not an opportunity to reargue the matter or to dispute the findings of fact contained in the Decision where the original decision maker has provided replicable and reasonable grounds for evidentiary findings.
18The Presiding Member heard evidence from an expert land use planner and from Mr. Roth. There is no indication in the Decision or in the Request that the Presiding Member restricted any Party from providing all of the evidence they wished to have heard.
19The Presiding Member identified the matter at issue as whether the five variances requested for the proposal satisfy the applicable statutory tests in s. 45(1) of the Planning Act. He summarized the objection of the Appellant as “the variances… are not minor and will result in adverse, undue impacts of a planning nature”.
20The Decision records the concerns of Mr. Roth, the Appellant. It also details the evidence of Mr. Hall, who provided expert testimony in support of the application.
21The Presiding Member acknowledged the expert opinion evidence of Mr. Hall regarding the applicable policy documents and accepted his evidence as the basis for the Presiding Member’s finding that the proposal meets the first test (that the proposal maintains the general intent and purpose of the Official Plan).
22The Presiding Member provided detailed reasons for each for his findings on each of the requested variances. He found that all the requested variances maintained the general intent and purpose of the Zoning By-law.
23On the basis of the reasons set out in support of the first two statutory tests, that the proposal maintains the general intent and purpose of the Official Plan and the Zoning By-law, the Presiding Member found also that the proposal was desirable for the use of the land and minor. Specifically, he found that the development would cause no undue adverse impacts of a planning nature.
24The Decision of the Presiding Member is detailed and thorough. The Decision sets out a substantial basis for its conclusions, considering law, policy and evidence, and provides a consistent underpinning of reasons for the determinations made. I find no flaw in the reasoning or the Decision delivered by the Presiding Member.
CONCLUSION
25The Request does not identify or substantiate grounds for reconsideration of the Decision. I find no definable or reviewable error in the Decision.
26The remedy requested, that the variance regarding height be rejected, is not within the outcomes available under the Rules.
27I have found no basis for cancelling the Final Decision and Order in this matter.
DECISION AND ORDER
28The Review Request is not granted. The TLAB Decision is upheld and the Decision issued November 4, 2022 is confirmed.
A. Bassios
Review Panel