Waxman v. Toronto (City), 2023 ONTLAB 92

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2023-05-25

22 140123 S45 15 TLAB

Waxman v. Toronto (City), 2023 ONTLAB 92

DECISION AND ORDER

Issuance Date:

May 25, 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):

J. WAXMAN

Applicant(s):

BADER GROUP INC

Property Address:

34 GREEN VALLEY RD.

COA File No.:

21 245408 NNY 15 MV (A0867/21NY)

TLAB Case File No.:

22 140123 S45 15 TLAB

Hearing Date(s):

October 20, 2022; November 25, 2022; December 15, 2022;

Decision Delivered By:

TLAB Panel Member R. Kanter

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Owner

E. Waxman

Applicant

Bader Group Inc.

Appellant

J. Waxman

D. Bronskill

Party

City of Toronto

D. Abimbola and M. LaFortune

Party & Requestor

L. Dhillon

Party & Requestor

H. Dhillon

Party

N. Dhillon

W. Roberts & Ian Flett

Expert Witness

M. Goldberg

Expert Witness

T. Mills

Expert Witness

S. Rasanu

Participant

Sharon Jones in Trust

Participant

C. Acconcia

Participant

D. Mida

Participant

C. Hewat

REVIEW REQUEST NATURE AND RULE COMPLIANCE TO INITIATE

1The Applicant submitted its first application seeking variances from North York Zoning By-law 7625 (the "ZBL") to the Committee of Adjustment (the "C of A") for 34 Green Valley Road (the "Site") on March 4, 2019. The first application requested thirteen variances from the ZBL. On June 5, 2019, the C of A approved eleven variances but refused two - variances for the front yard setback and front yard stair projection.

2The Applicant appealed the partial refusal. On November 30, 2020, the Toronto Local Appeal Body ("TLAB") denied the appeal and refused all of the variances. The 2020 TLAB refusal was upheld on a review conducted by another TLAB Member.

3In December 2021, the Applicant submitted a second variance application requesting six variances, including the following: reducing the minimum front yard setback from 23m to 10.56m; and increasing the building height from 8m to 11.59m. On April 14, 2022, the C of A refused the variances.

4Subsequently, the Appellant further revised the second application to increase the front yard setback to 10.87m and lower the height variance to 10.37m (the "Revised Application"). Counsel for the City of Toronto advised the Applicant that the City no longer objected to the Revised Application.

5The TLAB considered the Revised Application at a 3 day hearing held between October 31 and December 15, 2022. Mr. Michael Goldberg provided expert land use planning opinion evidence on behalf of the Applicant. Mr. Terry Mills provided expert land use evidence on behalf of Harjit and Lydia Dhillon, who opposed the Revised Application.

6By Decision and Order issued January 9, 2023, TLAB presiding Member G. Swinkin approved the Revised Application, subject to conditions requiring: construction in substantial accordance with the site plan and elevation drawings prepared by Richard Wengle Architect dated September 7, 2022, and the installation of landscaping in substantial conformity with a Landscape Plan prepared by MDPN Landscape Consultants (the "Decision").

7On February 8, 2023, Ian Flett, co-counsel for H. and L. Dhillon (the "Requestors") requested the TLAB Chair to conduct a Review of the Decision (the "Review Request"). The TLAB Chair designated me in writing to conduct the Review Request and make a Review Decision, pursuant to Rule 31 of TLAB's Rules of Practice and Procedure.

8The following is Rule 31, which sets out a detailed framework for Review Request:

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.

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.

GROUNDS RELIED ON FOR REVIEW

9The Review Request submits that TLAB's Decision contains the following reviewable errors¹:

a. It acted outside its jurisdiction by refusing to apply the minor variance test

concerning the general intent and purpose of an enacted and in-force zoning

by-law as it concerns the application of North York Zoning By-law 7625

“Specified Streets” provision at section 7.3.3 (Rule 31.17 (a));

b. Additionally, or in the alternative, it made an error of fact, law or mixed fact and

law in respect of the “Specified Streets” provision by: (Rule 31.17 (c))

i. Requiring a “documented rationale” to determine the general intent and

purpose of the zoning by-law;

ii. Disregarding expert opinion evidence concerning the “Specified

Streets” provision as speculation when the expert was qualified to

proffer expert opinion evidence, including a rationale to determine the

general intent and purpose of the provision in the absence of a

“documented rationale”;

iii. Authorizing a variance in the absence of evidence that it maintained the

general intent and purpose of the zoning by-law;

iv. Giving no effect to an enacted and in-force zoning by-law on the pretext

the City of Toronto has failed to amend its zoning by-law within three

years of amendments to its official plan;

v. Applying Official Plan policy 4.1.5 to a performance standard in a zoning

by-law, rather than on “development” as stated in the policy itself.

a. Did the Tribunal Refuse to consider the Intent and Purpose of the ZBL?

10The Requestors submit that TLAB is required to consider and reach an opinion, among other matters, on whether or not the requested front yard variance would maintain the general intent and purpose of the zoning by-law, and cites Vincent v. Degasperis as authority for that proposition.² I agree that the TLAB is required to decide if each variance requested meets the general intent and purpose of the ZBL.

11The Requestors further submit that the Decision granted a requested variance to the minimum front yard setback "without considering and reaching an opinion in respect of whether the general intent and purpose of the NYZB was maintained".³

12The Decision consists of 21 pages, exclusive of site plan, elevation drawings and landscape plan. The Decision is divided into sections, including "Summary of Evidence" and "Issues and Analysis".

13The Summary of Evidence section of the Decision refers to the front yard setback of the existing and proposed building on the Site and neighbouring properties as follows:

"The existing dwelling on the Property currently has a setback of approximately

23m. The front yard is virtually bereft of vegetation other than grass . . . To the Tribunal's perception, the front yard presents as forlorn."⁴

"With the revision to the design, the front yard now measures 10.87m (35 ft.) to the front main wall and due to the angled nature of Green Valley Road, the main front wall of the proposed dwelling generally lines up with the main front wall of both the north and south neighbours"⁵

Mr. Goldberg, planner for the Applicant "points out that due to the angle of Green Valley Road view, the main front wall along the northern portion of the subject site is setback approximately 20.72m from the front property line. This portion of the main property wall is very similar to the main front wall of the property to the north being the front wall of the 1 storey garage), thus providing for appropriate transition and appropriate front yard setback for the Property . . . the proposed setback of 10.87m being measured from the closest point of the proposed building at its southwest corner provides for a respectful and gradual transition between the two adjacent properties . . . the front building walls of these three dwellings will effectively align with each other, and the size and depth of the front yards diminish toward the south, consistent with the angle established by the front lot lines abutting Green Valley Road"⁶

Mr. Mills, planner for the Requestors says that: "the prevailing pattern in the broad neighbourhood and the Immediate Context is observance of the required front yard setbacks specified in the Zoning By-law. He takes the position that less frequent are reductions from the required . . . front yard setbacks, within this set the most frequent are modest reductions. . . 26 Green Valley Road, a replacement house, being granted a 20m setback and 36 Green Valley Road, an older (1960's) one-story building having a 3.63m setback"⁷.

14The Issues and Analysis section includes the following references to the front yard setback:

"The evidence before the Tribunal establishes that essentially throughout the Hoggs Hollow neighbourhood, and more pointedly within the Immediate Context, the most prevalent front yard setback is 7.5m more or less. As such, the 23m setback is dramatically out of sync with the prevailing condition."⁸

"In keeping with these findings and this analysis, the Tribunal concludes that the grant of relief with respect to the front yard setback will not undermine or be inconsistent with the character of the area, is entirely appropriate and in keeping with the general intent and purpose of the OP and zoning by-law"⁹ (emphasis added)

"with the intended front yard landscaping of the Property in keeping with the tendered landscape plan, there will arguably be an enhanced green view in the southerly direction. It will be a change from the present view, but not necessarily an adverse one, and quite possibly an improved one."¹⁰

15The Decision also refers to the front yard setback as a factor in considering the general intent and purpose of the ZBL in paragraphs [18] and [20] below.

16The TLAB Member considered the expert evidence with respect to the front yard setback provided by both Mr. Goldberg and Mr. Mills, expert land use planning witnesses for the Applicant and the Requestors, respectively. He preferred the opinion of Mr. Goldberg and reached an opinion that the variance for the front yard setback would maintain the general intent and purpose of the ZBL.

17Consequently, I find that TLAB considered the intent and purpose of the ZBL, and did not act outside of its jurisdiction.

b. Did the Tribunal make an Error of Law or Fact which would likely have resulted in a different Decision?

i. Required a Documented Rationale to determine the general intent and purpose of the ZBL

18The presiding Member stated that Section 7.3.3 of the ZBL specifies that properties municipally numbered 26 to 36 on Green Valley Road are subject to a minimum 23m front yard setback, while other properties on Green Valley and in the area are subject to a 7.5m front yard setback. He further stated that neither planner was able to provide a documented rationale for this special restriction.¹¹

19The Requestor does not challenge the relevance of a request for a documented rationale to assist in determining the general intent and purpose of a provision in the ZBL. In fact, the Requestor agrees that there are, on occasion, source materials such as reports or other evidence which may provide some rationale for a performance standard.¹²

20There is nothing in the Decision which states or implies that the Member "required" a documented rationale to determine the intent and purpose of the ZBL provision concerning the increased front yard setback. The Decision states that:

"in the absence of a documented rationale, the task of the Tribunal in attempting to ascertain whether the requested variance with respect to this requirement will be in keeping with the general intent and purpose of the zoning by-law is unmoored from any guidance".¹³

21The Decision does not create an arbitrary threshold as a condition of deriving an opinion in respect of the general intent and purpose of the front yard setback provision. Rather, it states that TLAB must exercise discretion in determining the general intent and purpose of the front yard setback provision of the ZBL, since it sought - but could not obtain - guidance from external documents.

22I find that TLAB did not require a documented rationale for the Specified Streets provision of Section 7.3.3 7 of the ZBL. Nor did it create an arbitrary documentary threshold, in connection with the front yard setback variance. Consequently, the presiding Member did not commit an error of fact or law by "requiring" a documented rationale, contrary to the submissions in the Review Request.¹⁴

ii. Disregarded Expert Opinion Advice

23The Review Request submits that Mr. Mills provided his opinion concerning the general intent and purpose of S. 7.3.3 in his Witness Statement; that Mr. Goldberg failed to provide his opinion on the general intent and purpose of the front yard setback provision; and that TLAB erred in giving no weight to the evidence of Mr. Mills on the issue.¹⁵

24Mr. Mills provided evidence focusing on the required front yard setback of 23m for the Site: "while I cannot attest to the reasons that established in the past the Subject Property's 23m setback, during my field observations I observed that the cluster of 23m setbacks preserved and enhanced the exposure of the Natural Heritage System's ravine slope behind these buildings."¹⁶

25Mr. Goldberg focussed on the rationale for the reduced front yard setback proposed for the Site, stating that: the front yard variance results in a dwelling which lines up approximately with the main front wall of both neighbouring properties; provides for a gradual and respectful transition; is larger than the setback in the 2019 application; is an appropriate front yard setback for the subject site; and the prevailing front yard setback within the geographic neighbourhood is compliant with the 7.5m setback.¹⁷

26The Decision states that Mr. Mills speculated that Section 7.3.3 may have related to attempting to preserve a view corridor along the east side of Green Valley Road. However, it was clear to the presiding Member that this was mere speculation not

sustained by any historic or legislative documentary support.¹⁸ The Decision also cites Mr. Goldberg's written, oral and visual evidence that treetops on valley slopes behind the dwellings on the upward sloping lots, including the Site, are visible irrespective of the front yard setback.¹⁹

27The Decision concurs with Mr. Goldberg that Mr. Mills' perception of potential impact from a policy perspective is simply subjective and is not sustainable, and there is no OP policy which supports the maintenance of any particular view from the Site.²⁰

28The Decision had regard for the expert opinions of both Mr. Mills and Mr. Goldberg, but preferred the evidence of Mr. Goldberg. Adjudicators for administrative tribunals such as TLAB must frequently weigh conflicting evidence from experts. Preferring evidence from one expert witness over another does not constitute an error of fact or law.

iii. Authorized the Front Yard Variance in the Absence of Evidence

29The Review Request submits that Mr. Goldberg provided no opinion in his witness statement or his reply witness statement with respect to the general intent and purpose of the 23m required front yard setback contained in S. 7.3.3 of the ZBL.²¹

30Mr. Goldberg provided an opinion in his witness statement in support of the reduced front yard setback primarily through his consideration of S. 4.1.5f) of the OP, which requires Development in established Neighbourhoods to respect and reinforce prevailing setbacks of buildings from the street. He stated that the angle of Green Valley Road in front of the Site meant that the proposed house was set back much more than the minimum of 10.87m at the northern portion of the lot, and the location of the main front wall proposed setback was very similar to the location of the main front wall of the house at 32 Green Valley immediately to the north of the Site.²²

31He elaborated on his opinion in his reply WS: "the front yard will range between a minimum of 10.87m and 18.67 m (due to the angle of the street) which is a front yard much larger than the prevailing front yards in the entire Neighbourhood, including across the street and to the immediate south at 36 Green Valley Road."²³

32The Decision states that much of the discussion regarding the intent and purpose of the Zoning By-law was bound up with respect to the relevant policies of the OP, and that Mr. Goldberg's evidence with respect to the ZBL was "laconic".²⁴ However, it devotes many paragraphs to evidence concerning the ZBL, and concludes that the granting of relief with respect to the front yard setback will not undermine or be inconsistent with the character of the area, is entirely appropriate and is in keeping with the general intent and purpose of the zoning by-law, as well as conforming to the OP.²⁵

33The Review Request relies on Toronto (City) v. Romlek Enterprises²⁶ as authority for the proposition that the Tribunal must consider a variance from the intent and purpose of the ZBL separately from compatibility with the Official Plan.²⁷

34In Romlek, the applicable OP provisions allowed residential uses, while the applicable zoning by-law did not. In that case, there was an inconsistency or difference between the OP and zoning by-law, and the court held that the Tribunal must consider both planning instruments independently. In the case before TLAB, there is a high degree of consistency between the OP, which requires regard for prevailing setbacks of buildings from the street, and the ZBL, which requires the setback variance to maintain the general intent and purpose of the zoning provisions requiring larger setbacks. The Tribunal noted that evidence regarding the ZBL and OP were closely related, but it considered the tests for both planning instruments separately.²⁸

35I find that the Decision analyzed the front yard variance with respect to maintenance of the general intent and purpose of the existing ZBL separately from its analysis that the same variance had regard for conformity with the OP. It did not commit an error of fact or law by failing to require the Applicant to meet both planning tests with respect to the front yard setback.

iv. Gave No Effect to ZBL due to Non-conformity with OP

36The presiding Member raised a question of conformity of the ZBL with the OP, required by S. 26 (9) of the Planning Act, although it does not appear that either Party raised this issue. The Member referred to OPA 320 as an amendment under S. 26 of the Planning Act, although that section refers only to official plan amendments adopted to comply with provincial planning directions²⁹ or required periodically.³⁰

37He referred to evidence that the zoning provision requiring a 23m front yard setback for the Site (and a few surrounding lots) was approved by former North York Council circa 1996, prior to the adoption of the amalgamated City of Toronto OP, and prior to OPA 320, adopted in 2015 and approved in 2018. He raised the question of whether the ZBL provision requiring a 23m front yard setback conforms to the amended OP provision requiring new development to reflect and reinforce prevailing patterns of development, including prevailing front yard setbacks of 7.5m. The Decision states: "As such, the 23m setback is dramatically out of sync with the prevailing condition. It could legitimately be argued that Council has been remiss in amending the ZBL to remove the [Specified] Street Regulation as it relates to Green Valley Road on the basis that it is not at all reflective of the prevailing front yard setback provision in either the geographic or immediate context."³¹

38The Review Request submits that "the decision maker effectively treats section 7.3.3 as inapplicable because the City of Toronto did not update the ZBL, as required. It goes on to point out that any zoning by-law that does not conform with a subsequent OP could be ignored.³²

39I agree that the Requestors raise a serious question with respect to the portion of the Decision concerning potential non-conformity of the ZBL with the amended OP. The possibility that any ZBL could be ignored if the Tribunal determined it did not conform to the OP could lead to great uncertainty with respect to the validity of numerous zoning by-laws approved by municipal councils.

40However, the Decision does not treat S. 7.3.3 as inapplicable solely or primarily due to non-conformity. It considered the variance from the required front yard setback in the context of conformity with the OP³³, as well as in the context of maintenance of the general intent and purpose of the ZBL³⁴ prior and in addition to raising the question of non-conformity with the amended OP.

41I find that the Decision maker had regard for the proper tests for variances under the Planning Act, in addition to his speculation concerning conformity with the OP as amended. The Decision gave appropriate consideration to the enacted and in force ZBL.

42I do not find that TLAB committed an error of fact or law by raising the speculative question of non-conformity of the ZBL with the amended OP. If I had found that the TLAB committed an error with regard to this single issue, the Requestor provided a bald statement but no evidence or reasons that the alleged error would likely have resulted in a different Decision refusing the consents and variances.³⁵

v. Applied OP Policy 4.1.5 Incorrectly

43The Decision states that OP Policy 4.1.5 is aimed at ensuring the maintenance of the character of existing neighbourhoods. It does this by ensuring the establishment of standards which reflect the 'prevailing' characteristics of the neighbourhood, which include front yard setbacks.³⁶

44The Request for Review challenges the Decision on the basis that the OP Policy refers to "Development" rather than performance standards; performance standards are contained in zoning by-laws, and the presiding Member has reached a self-initiated conclusion that the ZBL is outdated and should be ignored by TLAB.³⁷

45I find that the presiding Member paid attention to the evidence concerning OP Policy 4.1.5, analyzed the OP Policy and reached a reasonable conclusion concerning the application of the OP Policy to the proposed development. Consequently, I do not find he committed an error of fact or law arising from his interpretation of OP Policy 4.1.5.

CONCLUSION

46I reviewed the Decision as a whole, and considered it in the context of decision- making by the TLAB. The presiding Member considered the opinion evidence from expert land use planners for both Parties, reached a reasonable outcome, and provided reasons that were internally consistent and could be followed by applicants, municipal councils, municipal staff and residents. Consequently, the reasons for the Decision meet the test for an administrative tribunal set out in Canada (Minister of Citizenship and Immigration) v. Vavilov.³⁸

47I have also considered the Review Request, which is concise and focussed. However, as has been stated in a number of previous TLAB Decisions, a Review Request is not an opportunity to re-litigate or reargue a point that was made but not favourably accepted in the initial Decision. To succeed, a Review Request must provide compelling reasons and evidence that TLAB committed an error of the specific nature set out in Rule 31.17. It must also show that any error of law or fact would likely have resulted in a different Final Decision.

48I find that the Review Request has not provided compelling reasons which demonstrate that the TLAB exceeded its jurisdiction, or made errors of law or fact with respect to requiring a documented rationale, disregarding expert opinion, authorizing a variance in the absence of evidence or applying OP Policy incorrectly.

49The Review Request raised a valid concern with respect to the potential consequences had the Member treated the front yard setback provisions of the ZBL as inapplicable due to lack of conformity with the OP. However, it is clear that the Member did not dismiss S. 7.3.3 of the ZBL, but rather considered it and applied the proper tests for the consents and variances, of regard for conformity to the OP and maintaining the general intent and purpose of the ZBL.

50Even if I had found that the Review Request made an error of law with respect to the single issue of non-conformity with the OP, the Requestor has not provided reasons or evidence to show that the error would likely have resulted in a different Decision, resulting in refusal of the consents and variances.

DECISION AND ORDER

51The Review Request is not granted. The TLAB Decision is upheld, and the Decision issued January 9, 2023, is confirmed.

Ron Kanter

Panel Member

Footnotes

1. 1Review Request, par. 4
2. 22005 Canlii 2463 (ON SCDC) at par. 16
3. 3Review Request Par. 12
4. 4Decision, Page 6, par. 3
5. 5Decision, Page 7 par. 3
6. 6Decision P. 10 par. 4
7. 7Decision P. 11 par. 7 & 8
8. 8Decision P. 16, par. 6
9. 9Decision P. 17, par. 3
10. 10Decision P. 18, par. 5
11. 11Decision, P. 15, par. 4 & 6
12. 12Review Request par. 18
13. 13Decision P. 16 par.1
14. 14Review Request par. 18 – 20
15. 15Review Request par. 21 - 27
16. 16Mills Witness Statement P. 27
17. 17Goldberg WS P. 14 & 15; Goldberg Reply WS P. 5, par. 9
18. 18Decision P.15 par 6
19. 19Decision P. 17, par. 5-7 and P. 18, par. 1
20. 20Decision P. 18 par.1 & 5
21. 21Review Request par. 28-32
22. 22Goldberg WS, P. 15 par 3
23. 23Goldberg Reply WS P. 8 par. 1
24. 24Decision P. 12, par 3
25. 25Decision P. 17, par. 3
26. 262009 CanLII 27819 (ON SCDC)
27. 27Review Request par. 28
28. 28Decision P. 12 par. 3
29. 29Planning Act S. 26 (1)
30. 30Planning Act S. 26 (1.1)
31. 31Decision P. 16 par. 2-7
32. 32Review Request, par. 33-39
33. 33Decision P. 10
34. 34Decision P. 12
35. 35Review Request par. 47 contains the statement that TLAB errors more likely than not would have resulted in a different result, but provides no reasons or evidence in support of the statement
36. 36Decision P. 16 par 5
37. 37Request for Review par.
38. 38(SCC, 2019) par. 102-103