Violante, Sparling (Re), 2023 ONTLAB 67

Toronto Local Appeal Body

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

Date: 2023-04-12

22 150477 S45 13 TLAB; (Unit 703) 22 150485 S45 13 TLAB; (Unit 704)

Violante, Sparling (Re), 2023 ONTLAB 67

REVIEW REQUEST ORDER

Issuance Date: April 12, 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): D.Violante & M. Sparling

Applicant(s): In Roads Consultants

Property Address: 90 Sumach St. (Units 703 & 704)

COA File No.: 22 103900 STE 13 MV (A0147/22TEY) (UNIT 703) 22 107165 STE 13 MV (A0164/22TEY) (UNIT 704)

TLAB Case File No.: 22 150477 S45 13 TLAB; (Unit 703) 22 150485 S45 13 TLAB; (Unit 704)

Hearing Date(s): October 5, 2022 & November 16, 2022

Decision Delivered By: TLAB Vice-Chair A. Bassios

REGISTERED PARTIES AND PARTICIPANTS:

People Type	First Initial. Last Name	Representative
Appellant/Owner	D. Violante	A. Margaritis
Appellant/Owner	M. Sparling	A. Margaritis
Owner	A. Psica
Applicant	In Roads Consultants
Expert Witness	T. Cieciura

REVIEW REQUEST NATURE AND RULE COMPLIANCE TO INITIATE

1On May 4, 2022, the Committee of Adjustment (COA) refused requests for variances for units 703 and 704, at 90 Sumach St (the subject property). The applications for units 703 and 704 were heard as one application.

2The purpose of the applications was to seek approval for two variances for each unit to permit rooftop doghouse additions which had been partially constructed without benefit of building permits.

3The term “doghouse” refers to access structures constructed on the building’s roof to grant certain unit owners direct access from inside their units to exclusive use rooftop amenity areas located above their units.

4The requested variances were as follows:

UNIT 703

1. Section 1(4), Site Specific By-law 1994-0446 (OMB) The residential gross floor area of the existing building does not exceed 23,725 m2 , of which not more than 6,825 m2 is used for parking spaces at-grade or above grade and not more than 16,900 m2 is used for residential and professional purposes. In this case, the residential gross floor area of the building used for residential and professional purposes is 16,936.96 m2.

2. Section 1(9), Site Specific By-law 1994-0446 (OMB), as amended by Site Specific By-law 1995-0463 The maximum permitted height of the building is 29.1 m. The altered building has a height of 32.3 m.

UNIT 704

1. Section 1(4), Site Specific By-law 1994-0446 (OMB) The residential gross floor area of the existing building does not exceed 23,725 m2 , of which not more than 6,825 m2 is used for parking spaces at-grade or above grade and not more than 16,900 m2 is used for residential and professional purposes. In this case, the residential gross floor area of the building used for residential and professional purposes is 16,942 m2.

2. Section 1(9), Site Specific By-law 1994-0446 (OMB), as amended by Site Specific By-law 1995-0463 The maximum permitted height of the building is 29.1 m. The altered building has a height of 32.3 m.

5The Owners appealed the decision of the COA to the Toronto Local Appeal Body (TLAB) and the matter was heard over two hearing days in October and November of 2022.

6The Owners were represented by Mr. Margaritis and supported by Mr. Cieciura, an expert in land use planning.

7Two Participants took part in the Hearing, Ms. Snyder and Ms. Marshall.

8On December 1, 2022, Stan Makuch, the Presiding Member (the Member) issued his Decision denying the appeal.

9Mr. Margaritis has filed a Request for Review on behalf of the Owners/Applicants regarding the Decision and Order of the TLAB. Affidavits from Mr. Cieciura and Mr. Ingelman, both professional land use planners, have been filed in support of the Request.

10The alleged grounds for the Request for Review (the Request) are that the Member violated the rules of natural justice and procedural fairness and that he made errors of law and fact.

THE LEGISLATIVE AND POLICY FRAMEWORK

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….

…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

11The Review Request has been filed by Mr. Margaritis on behalf of the Owners.

12Rule 31.17 provides grounds for the TLAB to grant a remedy as a result of a Review decision (see above). It should be noted that the Reviewer is required to consider whether the reasons and evidence provided are compelling.(My emphasis).

13Of the grounds identified in Rule 31.17, the grounds cited in the Request are as follows:

With respect to Rule 31.17(b), the TLAB Member violated the rules of natural justice or procedural fairness by:

a) allowing Participants to cross-examine the Applicants expert witness in contravention of Rule 13.8(a);

b) directing Participants to file new and lengthy materials after the Applicants had put their case in and after the Hearing ended; and

c) allowing Participants to make closing submissions, in contravention of Rule 13.8(d).

With respect to Rule 31.17(c), the TLAB Member made the following errors of law and fact, which likely would have resulted in a different final Decision or final order:

a) failing to provide adequate and transparent reasons (error of law);

b) incorrectly interpreting the purpose and intent of site-specific Zoning By-law No. 1994-0446 (error of law);

c) unduly weighing the Decision’s precedential value (error of law and fact);

d) making numerous incorrect factual findings (error of fact); and

e) misrepresenting the variances being requested (error of fact).

The remedy requested is as follows:

a) That the Review Request be granted;

b) That the TLAB cancel the Decision, with reasons; and

c) That the TLAB issue a new decision allowing the Appeals and approving the Applications by granting the variances contained at Tab 8 of this Review Request;

or

d) In the alternative to (c), that a hearing be ordered before a different TLAB Member or panel pursuant to Rule 31.16(c).

14Before commencing a Review of the grounds asserted in the Request, a reminder of the purpose and parameters of Rule 31 is helpful. These comments are general propositions to be kept in mind in consideration of any Review.

• A Review Request is not afforded as an opportunity to re-litigate or reargue a point that was made but not favourably received in the Decision.
• In writing a decision, a TLAB Member must consider opinion and evidence, and decide what weight to ascribe to each, in coming to his or her conclusions. The Decision must provide its basis for coming to the conclusion it did, but it does not require an acknowledgement and repudiation (or concurrence with) 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 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.
• A TLAB decision is to be respected not just for the preparation antecedent of a formal Hearing in the receipt and review of filings and the mandatory site attendance, but for the conduct of the Hearing, the receipt and recording of the viva-voice evidence and the deliberative consideration given thereto, as inherent in decision writing.

Assertions re natural justice and procedural fairness

15The Requestor asserts that the Member violated the rules of natural justice and procedural fairness by not confining the Participants in this matter according to TLAB Rule 13.8 a) and d).

16I reproduce Rule 13.8 here for reference.

13.8 A Participant to a Proceeding may not:

a) call witnesses and cross-examine witnesses;

b) bring Motions, except a Motion to seek Party status;

c) participate in Mediation, unless permitted to do so by the TLAB;

d) make opening and closing submissions; and e) claim costs.

Rule Compliance

17In conjunction with the assertion that the Member violated Rule 13.8 by allowing the Participants to cross examine Mr. Cieciura and to make closing submissions, the Requestor also took issue with the statement of the Member (in response to counsel’s objections) that he may “change the rules” to facilitate a Hearing that is efficient.

Assertion 1. Allowing Participants to cross-examine the Applicant’s expert witness in contravention of Rule 13.8(a) was a violation of the rules of natural justice and procedural fairness.

18The TLAB is not a court. Tribunals do not operate under the same strictures as a court. A tribunal is a less formal and more accessible venue than the courts. As an administrative tribunal with a mandate to adjudicate within the area of land use planning, the TLAB affords predominance to the public interest in the resolution of disputes. One of the primary reasons the TLAB was established by City Council was to reduce barriers to public participation in the adjudicating of Appeals and to create a more accessible forum where the residents of Toronto could be heard.

19The guiding principle of an inclusive process is a distinguishing feature of the TLAB, reflecting its purpose and origins. Many of the Parties and Participants who engage in a particular case at the TLAB are unfamiliar with legal procedures and the land use planning system in general. Most of the senior Members of the Tribunal will endeavour to help lay participants understand the proceedings and, to some limited extent, the technical language which may be used. This is done to support effective participation and advance the purpose of the TLAB.

20As recorded in the transcript of the Hearing provided in the Request materials, the Member at the outset of the Hearing explained the format and sequence by which the Hearing would proceed for the benefit of the Participants who were unfamiliar with the TLAB. This is a common component of TLAB Members’ introductions. The Member explained that he would allow the Participants to ask questions of clarification after the expert witness had completed his testimony.

ADHERENCE TO RULES

21Following the Member’s introduction, Mr. Margaritis asked for verification regarding the role of the Participants and sought to confirm his understanding that the Participants could ask questions of clarification, but would not be able to cross-examine.

22In response, the Member indicated that he could “change the rules” to facilitate a Hearing that is efficient. The Member indicated that he would see when the Participants asked the questions whether they were appropriate questions or not.

23In the Request, the Requestor comments about being unable to locate any authority that confirms a TLAB Member’s ability to simply “change the Rules” as in this case, to simply ignore them”, and “disregard established Rules in their entirety”.

24The Requestor offers up quotes from Member Swinkin in the Review Request Order for 14 Faith Avenue – “there is a rationale behind the Tribunal’s Rules” and “justice is neither served, nor achieved, by blatant obliviousness to fundamental Rules”.

25TLAB Rule 2 provides for discretion and flexibility on the part of Members to interpret the Rules in a manner that secures the just, most expeditious and cost-effective determination of every proceeding on its merits. The flexibility available to Members in interpreting the Rules is not unlimited, but in this case the decision of the Member to allow the Participants to ask questions is well within the discretion accorded to Members in the conduct of a hearing.

ROLE OF PARTICIPANTS

26Rule 13.7, which the Requestor has not referenced, lays out the Role of a Participant. Inter alia, the Rule states that “A Participant in a Proceeding may:…c) ask clarifying questions of witnesses, with the approval of the TLAB…”.

27It would seem that the nub of the Requestor’s objection is that the Participants were permitted to do more than ask clarifying questions, that they were permitted to “cross-examine” Mr. Cieciura.

28As the transcript shows, Ms. Snyder asked only two questions, the first of which Mr. Cieciura answered with an explanation that the question was misplaced in the context of the statutory tests. During that exchange, prior to Mr. Cieciura’ s response, the transcript records the Member starting to interject. Ms. Snyder asked a second question which the Member immediately curtailed with an explanation why it was not appropriate and advised her to give her opinions when it was her turn to give evidence. Ms. Snyder did not ask any further questions.

29Ms. Marshall asked no questions. Ms. Snyder asked two, and in both instances was advised that the questions were not appropriate. This does not constitute a “cross examination” as is alleged. An inexperienced Participant, when offered an opportunity to ask questions of clarification, was redirected when the questions were not within appropriate parameters. There was no prejudice to the Applicant.

30With respect to the assertion that the rules of natural justice or procedural fairness were violated by allowing a Participant to cross examine the Expert Witness, I find no basis for the assertion.

Assertion 2. The Member directed Ms. Snyder to file new and lengthy materials after the Applicants had put in their case and after the Hearing ended, violating the rules of natural justice and procedural fairness.

31The only reference in the Request to a document requested to be submitted after the Hearing ended was “the 82-page Condominium Declaration document (“the Declaration”)”.

32The Requestor records that the “TLAB Member dismissed objections by counsel for the Applicants regarding the introduction of this new material, which counsel asserted was highly inappropriate given that the Applicants’ case had already closed and there was no opportunity for Mr. Cieciura to review the Declaration and formulate a response and reply as deemed appropriate.”

33Ms. Snyder’s Participant Statement, duly filed, consists of one page, and begins with a reference to the Metropolitan Toronto Condominium Corporation 1235 Declaration, quoting Article IV 4:01 (d), that each roof deck unit shall only be used as a deck in accordance with all Condominium rules, zoning by-laws and government regulations. A two page extract from the Declaration was attached to the Participant Statement, reflecting the requirements for additions, alterations, and improvements; rules governing the exclusive use of parts of common elements; and the restrictions and stipulations for general use.

34It could not have been a surprise to anyone that the Declaration was a centrepiece of Ms. Snyder’s evidence, and therefore an expected topic for consideration at the Hearing. Mr. Margaritis cross examined both Ms. Marshall and Ms. Snyder regarding the Declaration extract that was contained in Ms. Snyder’s Statement.

35The Declaration was clearly already in evidence via Ms. Snyder’s Witness Statement and Mr. Margaritis’s cross examination of both of the Participants on the requirements and stipulations. He put it to the Participants that the Condominium Board can and did provide consent for structural changes or alterations to their units (clause g) suggesting that this clause, in effect, over-rode the other prohibitions on use. I find it surprising that he would have made that suggestion to the Participants, and therefore to the Member as well, without a proper understanding of the preamble and context of the document as a whole.

36I note at this point that the Declaration is described as “the 82-page Condominium Declaration document” and as “lengthy”. The Articles of the Declaration are perhaps 12 pages long, the rest of the document comprises schedules such as mortgages and percentage contributions to common expenses which would not require anyone’s attention in this matter.

37Mr. Margaritis had ample and due notice that the Declaration was in evidence. He had prepared questions of the Participants regarding the Declaration and its relevance and purpose. He cross examined the Participants and suggested that their understanding of the rules and intent of the Declaration was erroneous. All of the persons involved in the Hearing had access to the Declaration except for the Member and yet none of the persons involved in the Hearing provided the Member with an actual true copy of the whole document.

38Having already placed a context around the Declaration and cross examined on it and suggested how the document should be regarded, Mr. Margaritis was placed at no disadvantage by the Member requiring an accurate and complete copy of the document for reference should he need it in writing his decision. Having already offered an interpretation of the effect of the Declaration clauses, Mr. Margaritis is not reasonably in a position to argue that the Member ought not to confirm the validity of Mr. Margaritis’s advice by reference to the full document. The Member required a complete copy of the Declaration in order to confirm what he heard in the Hearing.

39TLAB Rule 2.7 provides that :

Where procedures are not provided for in these Rules, the TLAB may do whatever is necessary and permitted by law to enable it to effectively and completely adjudicate matters before it in a just, expeditious and cost-effective manner.

40While it would have been customary for the Party or the Participants to submit complete documents prior to the Hearing, the Member heard the evidence regarding the Declaration, as well as Mr. Margaritis’s cross examination and refutation of the applicability of the restrictions on additions, alterations and improvements. It was incumbent on the Member to confirm the facts of the document in context of the opinions he had heard.

41The Requestor asserts that it is “clear from the Transcripts that the TLAB Member relies heavily on this Declaration in his interpretation of the character of the Building’s roof. In doing so, the TLAB Member also appears to have given no consideration to the fact that the Applicants did obtain the consent of the Condominium Board for the Proposals…”

42It is by no means clear to me that the Member relied on the Declaration in his interpretation of the character of the building’s roof. I have not been referred to any specific passages in the transcript to support this assertion. The Decision itself specifically references the Zoning By-law and does not mention the Declaration at all. In fact, the Decision states that much of the evidence in opposition was not very helpful and, explicitly, that “evidence of the condominium corporation’s handling of the construction was also not compelling”.

43The Member did not rely, in the end, on the Condominium Declaration for any part of his determination of this matter. The Decision rests entirely on the determination by the Member that the applications for variances do not meet the test regarding the general intent and purpose of the Zoning By-law.

44With respect to this assertion, I do not find a violation of the rules of natural justice and procedural fairness.

Assertion 3. Allowing Participants to make closing submissions, in contravention of Rule 13.8(d), violating the rules of natural justice or procedural fairness.

45I will not repeat here the backdrop of the TLAB’s predisposition towards inclusiveness and accessibility that I set out above.

46The Courts have held that purpose of Procedural Fairness in a tribunal context is “to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker”.¹

47The Requestor references Dunsmuir v. New Brunswick, 2008 SCC 9, at para 79, emphasizing the requirement of public decision makers to act fairly in coming to decisions that affect the rights, privileges or interests of an individual. However, the paragraph continues on…”Thus stated the principle is easy to grasp. It is not, however, always easy to apply. As has been noted many times, “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case” (Knight, at p. 682; Baker, at para. 21; Moreau-Bérubé v. New Brunswick (Judicial Council), [2002]1 S.C.R. 249, 2002 SCC 11, at paras. 74-75).”

48The implication in the Requestor’s assertion is that the Member was too open; that the privilege of speaking at the closing of the Hearing was the Party’s exclusively and that it was unfair to the Applicant to allow the Participants the same opportunity.

49Reflecting the duty to control a Hearing and to manage an efficient process, Presiding Members are accorded wide flexibility to make procedural determinations regarding the scope of an individual’s participation during the course of a Hearing. Rule 13.8(d) stipulates that Participants are not afforded the right to make closing statements, but it does not preclude the Member from allowing Participants to be heard in this way.

50While allowing the Participants to make closing statements (and ask questions of the expert) may have slowed proceedings by a degree, this ruling on the part of the Member did not offend any of the basic legal rules. To the contrary, the acts of cross examination and closing submissions are pillars of legal proceedings. The status of the Participants does not make their delivery of closing submissions prejudicial to the Applicant.

51I find no prejudice to the Applicant as a result of the Member exercising his discretion under TLAB Rule 2 and permitting the Participants to make summary statements of their previously heard evidence at the close of the Hearing.

Assertions re errors of law and fact

52All grounds for Review must be compelling. In addition, assertions on the grounds of 31.17 c) must establish an error of law or fact which would likely have resulted in a different Final Decision or final order.

Assertion 4. Failing to provide adequate and transparent reasons (error of law)

53The Requestor asserts that the TLAB was required to make determinations on the following matters: regard for matters of Provincial Interest, conformity to the Growth Plan and the four tests of s. 45(1) of the Act.

54The Requestor asserts that with the exception of a paragraph regarding the intent and purpose of the City Zoning By-law, the Decision fails to provide reasons regarding any of these matters.

55The Requestor recites some of Mr. Cieciura’s evidence regarding matters of Provincial Interest, the Growth Plan and the four tests under s.45(1) of the Planning Act and goes on to take issue that the Member did not “speak to these matters and the Summary of Evidence and Issues and Analysis sections of the Decision are completely silent” on all of these statutory documents as well as three of the four tests.

56The Requestor acknowledges that the TLAB is not obligated to address every piece of evidence on the four tests as they pertain to each requested variance when providing reasons for its decision but asserts that an adjudicator must provide careful reasoning explaining why it preferred the evidence of one witness over another. It is the duty of the TLAB Member under modern conventions to explain, with some particularity, to the ‘losers’ why they ‘lost’, not only to the ‘winners’ why they ‘won’².

57In other words, it is the obligation of the Member to provide an adequate, replicable, and rational basis as to how the decision was reached, and why.

58The Courts have held that whether in an administrative law setting, or a criminal law setting, reasons do not have to be perfect. The question is whether they are adequate to permit the reviewing body or the appellate body to fulfil its role. That is a contextual and functional inquiry.³

59In the Summary of Evidence section, the Member appropriately provided context for the ensuing analysis. He overtly agreed with Mr. Cieciura’s description and advice on a number of issues that had been discussed at the Hearing. He set aside much of the evidence of the Participants as being “not very helpful” but, in the final paragraph of the section, he set the springboard for his coming Issues and Analysis section:

“There were, however, submissions from Ms. Snyder and Ms. Marshall which, in effect, related to the purpose of the site specific bylaw. They believed that the bylaw restrictions were to ensure that the roof top was kept as open space and not used for enclosed residential space. To approve the variances would allow a significant change in the character of the roof and result in additional residential enclosures. Open space would be replaced by enclosed space, six foot wooden fences would be replaced by ten foot concrete walls and patios or gardens would be changed to living rooms.”

60Consistent with a question-driven rather than descriptive approach, the Member isolated the singular basis for his refusal of the applications, that they did not meet the general intent and purpose of the Zoning By-law.

61It is understood that for a variance to be approved, all of the tests must be met and the provincial interests recognized. If a single one of the tests is not met, the variance must be denied.

62A recitation of Mr. Cieciura’s evidence in the Decision would not have added to the reader’s understanding of why the applications were refused. While the Member could have acknowledged Mr. Cieciura’s proficiency and expert advice, as well as explicitly acknowledging that the refusals were based only on the failure to meet one test, such a recognition of the parts the “losers” won, would not have helped the “losers” understand why they “lost” (to use Mr. Margaritis’s language).

63The Member, in this respect, fulfilled his duty. He set out his reasons for refusal. His reasons allow an understanding why he made the decision he did. An inventory of the policies and tests that were not at issue in the Member’s mind is not pertinent to the explanation for his refusal decision (why the “losers lost”).

64The Requestor asserts that the Decision contains reasoning related solely on the test under s. 45(1) of the Act pertaining to the general intent and purpose of the Zoning By-law, “though the reasons provided are entirely insufficient.” Further, the Requestor asserts that It is clear from the Transcripts that the TLAB Member relied heavily on the submissions of the Participants to, “in effect”, form his own nexus or link to the intent and purpose of the Site-Specific BL (sic) when there was otherwise no reliable evidence available to reach his conclusions. In summary, the position of the Requestor is that “in ignoring the only expert evidence the TLAB Member had before him, he did not have the necessary evidence to “in effect” reach his conclusions regarding the Site-Specific BL”.

65It is ultimately the adjudicator that must carry the responsibility for the decision to approve or refuse the application for variances and it is they that must be satisfied that the tests have been met. Clearly, the Member was not satisfied that the general intent and purpose of the Zoning By-law was met.

66An adjudicator is to come to a Hearing with an open mind, not an empty one. Having heard the evidence, and having made observations, the Member is entitled to formulate their own opinion on acceptability or disagreement with the professional witness. This includes referring independently to the Zoning By-law, which in this case is specifically written for the subject property and which was included in the Appellant’s Document Disclosure.

67The decision whether or not to adopt the expert opinion of the expert witness is part of the Member’s job. The Member in this case reviewed the language of the By-law and did not agree with Mr. Cieciura’s opinion. Ultimately, the finder of fact in a Hearing is presumed to be competent to weigh evidence without assistance.

68I will not at this point enter into a discussion about what the By-law says and why Mr. Cieciura’s opinion was not supportable, since an assessment of the “correctness” of the Decision is not within my purview. Suffice it to say that the decision of the Member not to follow Mr. Cieciura’s advice and opinion is not an error in law.

Assertion 5. Incorrectly interpreting the purpose and intent of site-specific Zoning By-law No. 1994-0446 (error of law).

69The assertion is that the Member made an error of law in interpreting the general intent and purpose of the site specific By-law “as neither section 1(10) as referenced by the Participants, or any other section, speaks to an “open space” character of the rooftop. It simply does not exist.”

70The Decision, in the Issues and Analysis section, says as follows:

“The restriction on height permits the height of the dog houses. The density permits the original size of the dog houses. These restrictions, I find, are based on a general intent of the bylaw to have the roof remain as open space.” (My emphasis).

71The test is that the proposal must meet the general intent and purpose of the By-law. The Member in this case, is crystalizing the purpose of these provisions in the By-law, as well as the intent, as is expected in the test.

72Bearing in mind that the controlling By-law in this instance is not a general By-law but a By-law written specifically to control this site and this building, the generality of intent and purpose of the provisions in the By-law is tightly curtailed. The Member evidently did not accept Mr. Cieciura’s opinion, that the purpose of the height and gross floor areas numbers was simply to “recognize”, not cap, the gross floor area and height of the building.

73As seen in the transcript of the Hearing the Member asked Mr. Cieciura if the intent of the By-law was not to limit the overall size – the amount of square footage of use, or areas that can be used, with one exception (lofts below the 7th floor). Mr. Cieciura’s evidence was that “it is, it is to control the amount of space on the site” but expressed qualifications on that control. Mr. Cieciura then offered his interpretation of the intent of the provision and the Member, in a protracted exchange, continued to probe Mr. Cieciura’s opinion and question Mr. Cieciura’s interpretation of the intent inherent in the overall floor space limit.

74The foundation of a consideration of the general intent and purpose of the Zoning By-law is the actual By-law text, about which there was discussion at the Hearing and which was included, as would be expected, in the Document Disclosure of the Applicant.

75This Review is not an opportunity to relitigate a point that was made but not favourably received in the Decision. The Member did not agree with the Expert Witness’s statement of the general intent and purpose of the Zoning By-law. This is not an error, it is the exercise of his adjudicative function.

76The Member has not made an error in finding the intent and purpose of the Zoning By-law is different than that put forward by the expert witness. The Member has made a reasonable decision that the intent and purpose of the restrictions on height and density is to maintain the original condition, the original height and amount of floor space, which intentionally and purposefully maintains the existing condition of an open roof.

Assertion 6. Unduly weighing the Decision’s precedential value (error of law and fact).

77The Requestor asserts that the statement in the Decision that the approval of the applications would “set a precedent for additional enclosures” is an error of fact and law.

78The Requestor has set out a detailed justification of this assertion which includes consideration of legal precedent and the principle of stare decisis.

79After careful review of the reasons provided, I am unable to find any error of law or fact attached to the statement of the Member. The Member is not speaking of setting a precedent in the legal sense. The practical reality is that this legalization through variance approval of two partially built structures on the roof will legitimate residents’ continuation and/or expansion of some of the other structures on the roof to which Mr. Cieciura referred.

80Even if the Member’s view of precedence was erroneous, it is clearly obiter, (incidental to the Decision).

81The Member found that the variances failed the test of meeting the general intent and purpose of the By-law by allowing construction of enclosed space on the roof which is contrary to the general intent and purpose of the By-law. This finding stands with or without the comment about precedent for additional enclosures.

Assertion 7. Making numerous incorrect factual findings (error of fact).

82The Requestor has listed five facts the Member supposedly got wrong.

• The number of existing and larger doghouses,
• Who has access to the rooftop amenity area,
• Characterization of the rooftop,
• Misunderstanding of density, and
• Requirement for Zoning Amendment

83The errors which are identified in the Request under this assertion are either matters of semantics, preferred descriptions of conditions or comments that are not relevant to this Review. Even if the interpretations of the Requestor were to be entertained as errors on the part of the Member, which I do not find they are, nothing rests on them. None of these asserted errors provide compelling grounds for Review or would have likely resulted in a different decision.

Assertion 8. Misrepresenting the variances being requested (error of fact).

84While the Decision sets out the requested variances correctly, it also states that “(T)he proposed residential spaces would be higher than the existing ‘dog houses’.” As asserted by the Requestor, the proposed doghouse structures would be the same height as the existing doghouse structures they seek to replace.

85The question for me to decide is whether the statement that the proposed residential spaces would be higher than the existing dog houses is an error that would likely have resulted in a different decision or order.

86The Requestor states that “it is clear that the TLAB Member may have been seeking to prevent a harm (i.e. taller doghouse) that, in fact, never existed and could not manifest if the Applications were approved.”

87I have carefully reviewed the transcripts of the Hearing and the material submitted in support of the Request. I will set out some details about the building for the purpose of understanding the nature of the error only, and not to reconsider the Decision of the Presiding Member.

88My understanding of the phases of evolution on the rooftop are as follows:

• The Building was converted from a commercial building to a residential building. The site specific Zoning By-law eventually contained limits on height and gross floor area of the building that corresponded to the existing condition. There was only one exception to the floor space maximum which was to allow “lofts” (realizable on floors other than the 7th floor).
• (Some of) the suites on the 7th floor included private staircases from within their suites to access sections of the roof (roof terraces) that were reserved for their exclusive use. All residents had access to a common roof area.
• The openings onto the roof from these private staircases/ accesses came to be covered, resulting in what has been referred to as “doghouses”. It is not clear to me whether the structures which originally covered the roof access (and known as doghouses) comply with the Zoning By-law⁴.
• I saw in the transcripts no opposition from the Participants in the Hearing to the height or area of the original structures which provide shelter to the roof access from those suites that have private access.
• Over time, owners have invested in their exclusive use spaces on the roof, installing gazebos and canopies and, in some instances, creating rooms.

89What has become clear is that conversions of the covered rooftop accesses to livable space require variances from the Zoning By-law for gross floor area, and thereby a variance for height as well, (either to bring the height into compliance with the Zoning By-law, or perhaps because these structures can no longer be sheltered as canopies/ awnings/ platforms which might be accorded exemptions under the terms of a Zoning By-law or via the Building Code).

90In his Decision, the Member concluded that :

“views from the common area or the neighbouring owner’s roof top deck would not be significantly impaired as fences over six feet high enclosed most of the decks. It was clear as well that structures such as gazeboes and pergolas had been built over other roof top decks …”.

91From this statement, I conclude that the Member did not consider the proposed height itself to be impactful, whether he understood it to be higher or the same height as the existing doghouses.

92The crux of the Member’s Decision, as I see it, is the following passage from the Decision:

“I find that a general intent of the bylaw is that the roof should remain open and not be a series of enclosed livable spaces made part of the units below them. It appears from a reading of the restrictions in the bylaw that the general intent and purpose of the bylaw is to maintain the character or ambiance of the roof as open space and not enclosed living rooms. The restriction on height permits the height of the “dog houses”. The density permits the original size of the “dog houses”. These restrictions I find are based on a general intent of the bylaw to have the roof remain as open space. While there is no physical impact in terms of shadow, oversight or loss of views, approval of the variances would result in a loss of the open space character the bylaw was intended to protect.” (My emphasis).

93It seems apparent from this conclusion in the Decision that the Member was concerned primarily with the alteration of the outdoor character of the roof that would be precipitated by expanded living rooms, or enclosed space. What is highlighted is the nature of the use, living rooms vs outdoor amenity, and the extent of the expansion from isolated access covers to “rooms”. The reference to shadow and views reinforces this understanding of the Member’s primary conclusion, that the expansion of structures on the roof over a greater area was the primary violation of the intent of the Zoning By-law, not the height of, or even a greater height than, the existing doghouses.

94For this reason, I find that the error of misunderstanding that the proposed height was greater than the existing height of the doghouses is not an error that would likely have resulted in a different decision or order.

95I will briefly dispose of the complaint that the Member failed to visit the building or its roof. Members are required to visit the subject site for the purpose of understanding the neighbourhood context. They may not enter onto private property and it would be highly inappropriate for a Member to be escorted by an interested person or to be spoken to on site. In addition, the Hearing took place at a time of continued public health measures due to COVID 19 and entering the building could well have been a concern.

96The Member’s site visits are not a substitute for the evidence submitted (videos, photographs and plans) of which there was a wealth available to the Member in this case. Members would not rely on recall of a site visit in writing a decision, but on the Witness Statements, Document Disclosures, the notes they took during the Hearing, and in some cases, the audio recordings of the Hearing.

The Remedy Requested

97I have not found grounds to cancel the Final Decision or final order and direct a de novo Oral Hearing before a different TLAB Member. In light of the previous assertions regarding adherence to TLAB Rules, I make a brief comment regarding the remedy requested in this Review Request.

98The remedy requested was that the TLAB issue a new decision allowing the Appeals and approving the Applications by granting the requested variances.

99TLAB Rule 31.16 provides for only the following two alternatives in the end:

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.

100While the Statutory Powers Procedure Act s.21.2 permits a tribunal to vary its own decision or order,⁵ and a previous version of Rule 31 allowed for a Reviewer to vary a Final Decision, this was purposefully removed as a remedy in the last rewriting of TLAB Rule 31. The final revision of Rule 31, excluding the option to vary as a remedy, was premised on the fundamental principle that the person who hears the evidence must decide.

101However thoroughly the materials submitted through the Review Request are considered by the Reviewer, they are not the one who heard the in person evidence or had carriage of the proceedings.

102TLAB Rule 30 enables the TLAB to correct minor errors and a decision may be varied in this way, but an effective reversal of a Final Decision without a new Hearing is not sanctioned under the TLAB Rules.

103The purpose of a Review is only to establish if a consequential error or breach of fairness has been made within the definition of the grounds identified in Rule 31.17. Should such grounds be established, the matter is to be remitted to a new Member for a fair and full hearing of the matter.⁶

104The discretion provided in Rule 2 to achieve efficient and cost-effective determinations that I referred to earlier in this Review Decision does not arch over this fundamental principle, that the weighing of evidence is remitted to the trier of fact.

CONCLUSION

105I have not found compelling grounds to grant the Review Request and I have not found errors of law or fact that would likely have resulted in a different decision or order.

DECISION AND ORDER

106The Review Request is refused and the Final Decision and Order of Member Makuch dated December 1, 2022 is confirmed.

A. Bassios

TLAB Vice-Chair

Footnotes

1. 1Baker v, Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817
2. 233 Simon v Bowie, [2010] ONSC 5989 at paras 9-15
3. 3Correa v. Ontario Civilian Police Commission, [2020] ONSC 133, at para 32.
4. 4Site specific Zoning By-law 1994-0446 (OMB), clause (9): “no part of the building as renovated shall have a height above the height in metres specified…, and no part of the mechanical penthouses and elevator shafts of the building shall have a height exceeding 35.5 metres above grade”.
5. 521.2 (1) A tribunal may, if it considers it advisable and if its rules made under section 25.1 deal with the matter, review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order. 1997, c. 23, s. 13 (20).
6. 6This would include notification to all affected or interested persons, including the previous Participants, which is not required for Review Requests.