Toronto Local Appeal Body

40 Orchard View Blvd, Suite 211

Toronto, Ontario M4R 1B9

Date:

2023-05-31

22 142546 S45 15 TLAB

Teddington Park Residents Association Inc v. Torokvei, 2023 ONTLAB 95

REVIEW REQUEST ORDER

Issuance Date:

May 31, 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):

Teddington Park Residents Association Inc

Applicant(s):

Wayne Swadron Architect

Property Address:

160 Teddington Park Ave

COA File No.:

22 109958 NNY 15 MV (A0087/22NY)

TLAB Case File No.:

22 142546 S45 15 TLAB

Hearing Date(s):

September 29, October 28, November 8, 2022

Decision Delivered By:

TLAB Panel Member S. Gopikrishna

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

Wayne Swadron Architect

Appellant

Teddington Park Residents Association Inc.

W. Roberts

Party

B. Kogut

Party

R. Ting

W. Roberts

Party

A. Durnford

Party

M. Torokvei

M. Helfand

Expert Witness

S. McGaffey

For M. Torokvei

Participant

V. Hand

Participant

D. Hopp

REVIEW REQUEST NATURE AND RULE COMPLIANCE TO INITIATE

1Max Torokvei is the owner of the existing bungalow at 160 Teddington Park ( the “Subject Property”, the “Property”, the “Site”). In order to build a two storey building at this Site, he applied to the Committee of Adjustment (the “COA”) for the approval of 9 (nine) different variances. Some of the variances were modified at the COA meeting. The COA heard the application on April 14, 2022, and approved the modified list of variances, with conditions.

2On May 4, 2022, Mr. Walter Scott Stevens, the President of the Teddington Park Residents Association, appealed the COA’s decision to the Toronto Local Appeal Body ( the “TLAB”)on behalf of the latter. The TLAB heard the Appeal on September 29, 2022, October 28, 2022 and November 8, 2022. At these Hearings, the Applicant was represented by Mr. Matthew Helfand, a lawyer, and Mr. Sean McGaffey, a land use planner, while the Appellant was represented by Mr. William Roberts, a lawyer, and Mr. Terry Mills, a land use planner. A number of residents, including Messrs Ting, Dunford and Kogut elected for Party status, while Messrs. Hand and Hopp elected for Participant status.

3Member Ted Yao ( the “Member”, the “Adjudicator”), who had heard the Appeal, released his Final Decision and Order ( the “Decision”) on February 8, 2022, where he preferred the evidence of the Appellants, and refused the variances in their entirety. It is important to note that a “Procedural Order” was issued on November 21, 2022, where the Adjudicator ordered the two counsel to produce a Memorandum of Law on the Ontario Heritage Act, and submit the same to the TLAB before December 7, 2022, to address concerns about the impact of the Heritage Property next door. This Order refers to the offer by Mr. Helfand , lawyer for the Applicants, to submit a “neutral” opinion on the Ontario Heritage Act, and offers Mr. Roberts, Counsel for the Appellants, an opportunity to comment on the opinion proffered by Mr. Helfand, if he was in disagreement with the same.

4After the release of the Final Decision by the Adjudicator respecting this Appeal on Feb 8, 2023, the TLAB received a Review Request from the Applicants on February 23, 2023. The Review Request was assigned to me ( the “Review Panel”), after the TLAB staff completed preliminary screening to ensure that the Request satisfied the requisite deadlines.

5I issued an Interim Order dated March 13, 2023, where I provided the Appellants, who are the Responding Party time until April 6, 2023, to send a Response to the Review Request, and the Review Requestors time until April 13, 2023 to submit a Reply to the Response. The Response was received on March 20, 2023 while the Reply to the Response was received on March 24, 2023. I take this opportunity to the Parties for their adherence to the stated timelines for submissions.

THE LEGISLATIVE AND POLICY FRAMEWORK

RULE 3.0 (After December 2, 2020)

31. REVIEW OF FINAL DECISION OR FINAL ORDER

A Party may Request a Review

31.1 A Party may request of the Chair a Review of a Final Decision or final order of the TLAB.

Chair May Designate Any Member

31.2 The Chair may in writing designate any Member to conduct the Review and make a decision in accordance with the Rules.

Review Request does not Operate as a Stay

31.3 A Review shall not operate as a stay, unless the Chair orders otherwise. A Party requesting that a Final Decision or final order be stayed shall do so at the same time the request for Review is made.

No Motions Except with Leave

31.4 No Motion may be brought with respect to a Review except with leave of the Chair. Deadline for, and Service of, Review Request

31.5 A Review request shall be provided to all Parties and the TLAB by Service within 30 Days of the Final Decision or final order, unless the Chair directs otherwise.

Contents of a Review Request

31.6 A Party’s request for Review shall be entitled “Review Request” and shall contain the following:

a) a table of contents, listing each document contained in the Review Request and describing each document by its nature and date;

b) an overview of the Review Request not to exceed 2 pages that identifies the grounds listed in Rule 31.17 that apply;

c) if the Review Request includes grounds based upon Rule 31.17 (c), a list of all alleged errors of fact or law;

d) a concise written argument contained in numbered paragraphs. The Review Request shall provide, avoiding repetition, the concise written arguments regarding each listed matter from Rule 31.17 in the same order and include the following:

i. the applicable section of the Planning Act or other legislative basis, if any, for the argument advanced;

ii. the wording of the applicable policy, By-law or authority, if any, in support of the argument advanced;

iii. the applicable transcript or other evidence and exhibit attachments, if any, in support of the argument advanced;

iv. a clear demonstration of how in the case of grounds asserted under Rule 31.17 c), d) and e), each would likely have resulted in a different Final Decision or final order;

v. copies of the referenced case law and authorities; and

vi. a statement as to the requested remedy.

Review Request not to Exceed 20 Pages

31.7 Excluding the table of contents, case law and transcripts, by-laws, exhibits and other supporting Documents, the Review Request shall not exceed 20 pages, double spaced, and written in 12-point font.

Transcripts

31.8 If any Party wishes to refer to any oral evidence presented at the Hearing and if that oral evidence is contested and a recording thereof is available, the relevant portion of the proceeding shall be transcribed and certified by a qualified court reporter and provided to all Parties and the TLAB by Service forthwith and at that Party’s sole expense.

Administrative Screening

31.9 The TLAB shall, upon the filing of a request for Review, review it for compliance and advise the Parties if:

a) it does not relate to a Final Decision or final order; or

b) it was not received within 30 Days after the Final Decision or final order was made, unless the Chair directs otherwise; or

c) it failed to provide the requisite fee.

Response to Review Request

31.10 Despite Rule 31.9, if a Party needs to respond to the Review Request the Responding Party shall by Service on all Parties and the TLAB provide a Response to Review Request no later than 20 Days from the Date of Service pursuant to Rule 31.5, unless the Chair directs otherwise.

Contents of a Response to Review Request

31.11 A Responding Party’s response to Review Request shall be entitled “Response to Review Request” and shall contain the following:

a) a table of contents, listing each document contained in the Response to Review Request and describing each document by its nature and date;

b) an overview of the Response to Review Request not to exceed 2 pages that contains specific reference to the Review Request’s overview;

c) a concise written argument contained in numbered paragraphs, giving a response to each argument in the Review Request, and include the following :

i. the applicable transcript or other evidence and exhibit attachments, if any, in support;

ii. any other applicable legislation, policy documents, By-laws or other material that is not provided for in the Review Request; and

iii. any other applicable authorities and copies thereof; and

iv. a statement as to the remedy requested.

Response to Review Request not to Exceed 20 Pages

31.12 Excluding the table of contents, case law and authorities, transcripts, by-laws, exhibits and other supporting Documents, a Response to Review Request shall not exceed 20 pages, double spaced, and written in 12-point font.

Responding Party Not to Raise New Issues

31.13 A Responding Party shall not raise any issues beyond those issues raised in the Review Request.

Reply to Response to Review Request

31.14 If the Requesting Party needs to reply to a Response to Review Request, that Party shall provide by Service on the Parties and the TLAB a Reply to Response to Review Request not to exceed 5 pages, double spaced, and written in 12-point font and no later than 5 Days from the Date of Service pursuant to Rule 31.10, unless the Chair directs otherwise.

Contents of a Reply to Response to Review Request

31.15 A Reply to Response to Review Request shall contain the following:

a) a reply to facts, matters and Documents raised in the Response to Review Request;

b) list and attach the Documents used in the Reply to the Response to Review Request relating to those matters addressed in the Reply, including any case law or authorities raised in support.

Chair Authority

31.16 Following the timeline for the Service on all Parties and the TLAB of any Review Request, Response to Review Request and Reply to Response to Review

Request, the Chair may do the following:

a) seek further written submissions from the Parties;

b) confirm the Final Decision or final order and dismiss the Review Request, with reasons;

c) cancel the Final Decision or final order, with reasons, and, where appropriate, direct a de novo Oral Hearing before a different TLAB Member.

Grounds for Review

31.17 In considering whether to grant any remedy the Chair shall consider whether the reasons and evidence provided by the Requesting Party are compelling and demonstrate the TLAB:

a) acted outside of its jurisdiction;

b) violated the rules of natural justice or procedural fairness;

c) made an error of law or fact which would likely have resulted in a different Final Decision or final order;

d) was deprived of new evidence which was not available at the time of the Hearing but which would likely have resulted in a different Final Decision or final order; or

e) heard false or misleading evidence from a Person, which was only discovered after the Hearing, but which likely resulted in the Final Decision or final order which is the subject of the Review.

No Further Review Permitted

31.18 A Review decision may not be further reviewed by the TLAB.

THE DETAILS OF THE REVIEW REQUEST

6The Review Request (the “Request”) received on February 23, 2023, identifies 5 (five) broad “issues”, listed below. Some of these “issues” are further divided into what I refer to in this Decision, as “concerns” regarding different facets of the Decison. The issues are listed below, followed by a description of the specific concerns, where appropriate:

• Issue 1: The Member Mistook What Variances Were Before Him (Error in Fact 31.17 (c) and Excess of Jurisdiction Rule 31.17 (a))

• Issue 2: Treating the Failure of One Variance as the Failure of All Variances (Error in Law Rule 31.17 (c))

• Issue 3: Errors Respecting the Interpretation and Application of Official Plan Section 4.1.5 (Rule 31.17 (c) – Error of Law )

• Issue 4: Failing to make a Mandatory Determination on Provincial Policy and Plans (Error in Law Rule 31.17 (c)).

• Issue 5: Rule 31.17 (b) – Violation of Natural Justice – Failure to Provide Sufficient Reasons

7With respect to Issue (1) above, the Request classifies errors into two concerns- Errors in Fact, and Errors made in Excess of Jurisdictions. Issue (1) is further subdivided into two concerns:

(i) Incorrectly Citing the Front Yard Setback Variance Sought

(ii) Incorrectly Citing the FSI Variance Sought

Each of these alleged errors is described in the following paragraphs

8With respect to the incorrect citation of the Front Yard Setback Variance, and the FSI Variance sought, the Request alleges that of the nine variances sought by the Applicant, the Decision analyzed only the front yard setback, and the floor space index in any detail, and that “even these variances were not stated accurately”. The Request specifically states the Decision refers to the magnitude of the front yard variance to be 10.5 metres, when the Applicant had requested of a front yard setback variance of 12.5 metres. In the case of the FSI, the Request points out that the ratio decidendi relied on a variance of 0.552, when in reality a variance of 0.522 was sought.

9The Request also argues that the Decision’s relying on a different set of numerical values, rather than the numbers supplied by the Applicant, amounts to a ruling outside of the TLAB’s jurisdiction.

10The Request provides an extensive listing of sources to establish the correct numerical values for the variances. For the variance respecting the setback, it lists 5 ( five) different sources, such as the COA decision, the Applicant’s Expert Witness Statement, and other sources to establish that the numerical value of the front yard setback submitted by the Applicants is 12.5 metres. The Request then suggests that the “Member actively misdirected himself” to the proper variance, with an “interpolation” about the “true” variance on the basis of Footnote 6 of the Decision, which is recited in its entirety below:

The proposed development has an integral garage that’s located within the front yard area, projects approximately 5 or so, 5 to 6 meters [the plan examiner says 7.3 m -- my interpolation] from beyond the minimum required front yard setback. And it does this by flipping the orientation of the garages so that they actually face this internal courtyard area of the of the proposed development. What I've referred to as the parking forecourt in my witness statement. And this configuration as we went through the photo tour the idea of the garage as a separate volume from the main residential dwelling served by a parking forecourt, or a large circular driveway is a common theme within this neighbourhood. . . .(Mcgaffey oral testimony)

Um, there are 6 conditions of circular driveways within the north side within the immediate context, and even here with a minimum required frontage of 22.5 meters in zoning bylaw 569, a circular driveway is a permitted condition on this property.

And so, this comes back to my point earlier about understanding what the bylaws allow for, versus what the OP objectives are, and how they may compete with each other. Introducing a circular driveway on this property while on a lot of this size it might otherwise be permitted and negate the need for variance. Does it result in a better condition for the character and streetscape of Teddington Park for lot of this size? I, I wouldn't agree. I think, in my opinion, sometimes the by law is, is it's a blunt instrument that needs to be appropriately scaled and understood how it relates to the individual properties. (Mcgaffey oral testimony)

The proposed development has an integral garage that’s located within the front yard area, projects approximately 5 or so, 5 to 6 meters [the plan examiner says 7.3 m -- my interpolation] from beyond the minimum required front yard setback [emphasis added]

11The Request states that the “Plan Examiner” notice that is referred to in the above note “did not reflect the Application before the TLAB”, and adds that “this should have been apparent to the Member based on the evidence before him”, before concluding that had the variances been accurately understood, a different decision may have been rendered.

12The Request then identifies the source that resulted in the “error” in the Decision, because it says that the variance application, originally included a front yard setback of 10.5 metres, which was then “reduced” prior to the Committee Hearing to a front yard setback of 12.5 metres. The Request then declares that 10.5 metre setback, was never considered by the COA, and was “therefore not before the TLAB for consideration on appeal”. The Request also demonstrates how the 10.5 metre front yard setback was not a “typographical error” by bringing up two other examples from the Decision, where the Member made notations indicating that he understood the front yard variance to be 10.5 metres.

13Discussing the other numerical error respecting the FSI , the Request identifies Paragraph 27 of the Decision, recited below, to demonstrate that the wrong FSI was used

I find that a FSI of 0.552 does not respect and reinforce the prevailing densities of nearby residential properties (0.47 for larger lots) and therefore this variance does not meet the Official Plan and zoning tests. For reasons already explained the entire application fails [emphasis added].

14The Request concedes that the correct FSI was relied on in other “portions of the Decision”, but asserts that the use of wrong FSI figure is concerning because it “does not lie in an outlying paragraph of obiter dicta, but directly in the Member’s ratio decidendi. “. The Request stated that it is not clear to the Requestor if the correct variance of 0.522 was “even considered” by the Member, when making findings. On the basis of this reasoning, the Request concludes that had this “mistake” not been made, “a different Decision may have resulted”.

15Discussing the “Excess of Jurisdiction” in Rule 31.17(a), the Request relies on an Ontario Court of Appeal decision “Colicchia Construction Ltd. v. Schmidt, [1968]” to establish that the jurisdiction of the Tribunal on a minor variance is “purely an appellate jurisdiction”, and concludes that the “TLAB has no jurisdiction to rule on a variance which was not considered, and approved by the COA, and was not properly before it on appeal”. The Request concludes that the changes to the numbers in the recitation of the two variances constitutes an “excess of jurisdiction”.

16The second Issue (Issue 2) flagged in the Request is the allegation of “treating the failure of one variance as the failure of all variances”, which is held to be by the Requestors to be an error under Section 31.17(c) of the Rules. The Request recites Paragraphs 21 and 27 of the Decision (recited below), one after the other, before pointing out that the “seminal case of Vincent v. DeGasperis” ruled that the Tribunal is “to consider each variance sought and reach an opinion as to whether or not, if either alone or together with the other variances sought, was desirable for the appropriate use of the subject property”.

Paragraph 21 of the Decision states:

The failure of one variance means the entire application fails, since each of the variances must individually and cumulatively meet the four tests.

Paragraph 27 of the Decision states:

I find that a FSI of 0.552 does not respect and reinforce the prevailing densities of nearby residential properties (0.47 for larger lots) and therefore this variance does not meet the Official Plan and zoning tests. For reasons already explained the entire application fails.

The Request then discusses what it perceives to be the “unfairness” of conducting a Hearing of 3 (three) days to hear evidence about 9 (nine) variances, before considering only two of the nine variances for decision making purposes. The Request also points out that there is no evidence recited in the Decision to demonstrate that the variances are interrelated, and that there are no findings in the Decision to demonstrate that the variances are interlinked. It asserts “that there is no rational basis to conclude that a front yard setback variance, for instance, is inextricably linked to FSI, height, side yard setback, or platform area variances”. These are entirely different variances which merit independent consideration.

17After asserting that the variances are “entirely different” and “merit independent consideration”, the Request concludes that there is an “error of law” to conclude that the failure of a single minor variance, results in the failure of the entire variance application.

18The third issue (Issue 3) raised in the Request is the” Errors respecting the Interpretation and Application of Official Plan 4.1.5.” It alleges that the Member “misapplied” Section 4.1.5 on the basis of the following concerns:

1. Materially misapprehending the evidence before him respecting the relevant geographic neighbourhood;

2. Expressly “discarding: neighbourhood properties which were cited by the Applicant’s land use planner as forming part of the neighbourhood character;

3. Incorrectly re-interpreting section 4.1.5 as being a novel, fictitious “test of fitting in”, and incorrectly treating this section as the “main” Official Plan test.

19With respect to the first concern identified in the previous paragraph above, the Request compares the Study Areas of the two Expert Witnesses from Paragraphs 36 to 41 of their Argument, takes issue with the findings made in the Decision in Paragraph 14 of the Decision, before suggesting that there is a false “dichotomy” between the two Expert Witnesses’ Geographic Neighbourhoods ( the “GN”) in the Decision. The Requestors’ conclusion is recited below by the Paragraph of the Decision:

The Member rejects Mr. McGaffey’s geographic area on the basis that it included “Teddington Park Ave east and west of Mount Pleasant, plus Golfdale”. However, Mr. Mills included those same areas, and it is plainly obvious that Mr. Mills did not confine his geographic neighborhood to “only the 22 properties in the immediate block”. This is clear from Figure 1 above, as well as from the text of Mr. Mills’ witness statement. At page 16 of his witness statement, referencing his geographic context, he states: “I have included both blocks west of Mt. Pleasant Road, minus irregular buildings immediately adjacent to Yonge Street.” The Member’s statement in paragraph 13, “Mr. Mills: only the 22 properties in the immediate block”, was simply incorrect

Paragraph 14 of the Decision is recited below:

14The usual first step is to define the geographic context. In this case the choices are:

• Mr. Mcgaffey proposed this should be Teddington Park Ave east and west of Mount Pleasant, plus Golfdale;

• Mr. Mills: only the 22 properties in the immediate block.

I prefer Mr. Mills’ neighbourhood. To draw the boundaries, the Official Plan lists nine criteria: “zoning; prevailing dwelling type and scale; lot size and configuration; street pattern; pedestrian connectivity; and natural and humanmade dividing features”. Mr. Mills’ neighbourhood “ticks most of the boxes”.

20The Request alleges that the Member clearly misapprehended the position of the land use planners, and that he “creates a false dichotomy between two geographic neighbourhoods, which bear virtually no resemblance to the evidence, each land use planner provided.”, and labels the reminder of the analysis to be “fruit from a poison tree”. It is important to note that this conclusion is premised on a comparison of the maps of the Geographic neighbourhoods provided by the two Witnesses in their witness statements, and written extracts from the same.

21The Requestors argue that that is a “well established legal principle that cases must be decided on the evidence presented by the parties in open court”, and rely on R. v Morrissey 1995 CanLII 3498 (ON CA), [1995] O.J. No. 639 (ON C.A.), that “misapprehension of evidence constitutes a reversible error of law, where a “trial judge is mistaken to the substance of material parts of the evidence, and those errors play an essential part in the reasoning process”. The Requestors contend that if the Member had not “significantly misapprehended the evidence of the two planners, the TLAB would have reached a different decision as to whether the four tests were met with respect to the requested front yard setback and FSI variances.”

22The second concern raised by the Requestors then critique the “Member’s Analysis of Neighbourhood Character” as being based on the available evidence because he “discarded” the character of the Broader Context, and recite Paragraph 22 of the Decision:

Mr. Mcgaffey stated that there was a pattern of Committee of Adjustment decisions demonstrating that an FSI of 0.522 was “appropriate”. He based this on a chart of 32 decisions. I discard those outside the immediate block. This leaves six decisions (the seventh arrow with 0.522 is the decision for the subject, which was granted by the Committee of Adjustment).

The Requestors assert that the Member’s Decision to “discard” 26 supporting examples of FSI variances “runs directly contrary to the policy direction in Official Plan section 4.1.5., because this assigns “0” consideration whatsoever to the physical character of the broader context from an FSI perspective”.

23The third concern raised by the Requestors, within the purview of Issue 3, is the “invented test of “Fitting In”, and assigning too much weight to Section 4.1.5”. According to the Requestors, there are “distinct legal errors”, the first of which is an error of law by reinterpreting these policies as a “test of fitting in”. They assert that there is no “test of fitting in”, because it does not appear in anywhere in the Official Plan.

24The Requestors argue that a “variance application must be judged against the policy language as it is written, and not the policy language as reinvented by the Member”. They assert that “such reinvention of policy is a legal error, and is deeply unfair to all parties to the proceeding” and that “ By re-inventing section 4.1.5 with his own shorthand, the Member has rendered the Official Plan policy tests effectively unknowable”.

25According to the Request, another concern in the same context, are the Decision’s references to Section 4.1.5 as “the main test”, because the TLAB must consider whether a particular variance meets the “general intent and purpose of the Official Plan”, and that the concept of “a main test” in the OP does not exist, because all policies are equally important.

26The fourth issue (Issue 4) which the Applicants highlight is the lack of a finding between the proposal and the Provincial Policy and Plans, or Section 3 of the Planning Act. The Request argues that the Decision “erred in law” by not making a finding on the relationship between the proposal, and this Section. It cites Paragraph 3 from the Decision.

I find they were too general to offer much guidance for this case, which is to remove an existing house and build a larger one in an established urban area. Because of this, and because the words “consistent with “and conform to” are general, I do not discuss these policies and I have made no negative or positive findings in respect to them.

27The Requestors contrast the above paragraph with Section 3(5) of the Planning Act, “which provides that a “decision of the TLAB” shall be consistent with the Policy Statements and “shall conform with the provincial plans that are in effect”. The Requestors then recite the following paragraph from a Review Request Decision focusing on another Decision by the same Adjudicator

“It is commonly understood that the language of Section 3(5) of the Planning Act is mandatory that all planning decisions shall be consistent with the PPS and shall conform with Provincial plans (which in this instance is the Growth Plan). It was thus an error of law on the part of Member Yao to say that these policies are not applicable for a severance of one lot in a settlement area nor for the variances associated therewith”

28The fifth, and last issue (Issue 5) , canvassed in the Request lists the following concerns:

1. The Decision does not provide adequate reasons with respect to the four tests and the totality of the variances sought by the Applicant;

2. The Decision does not provide adequate reasons or conclusions with respect to cultural heritage issues

29Expanding on the first concern above, the Requestors state that the Decision violated a rule of natural justice by failing to provide sufficient reasons for the conclusion that the Application did not meet the four tests under Section 45(1) of the Planning Act. The Applicants then rely on Clifford v. Ontario Municipal Employees Retirement System (2009 ONCA 670), to explain that “while the tribunal does need to refer to every piece of evidence, or set out every finding or conclusion, the “path” taken by the tribunal must be made apparent.”

The Requestors then state the following:

The Divisional Court has stated that the law requires an adjudicator on a minor variance application to substantively apply the four tests. While the TLAB is not necessarily required to separately and formulaically address each element of the test in respect of each variance, it is required to give careful reasons explaining why it preferred the evidence of one witness over another.

30The Request then cites the questions asked under Sections 2, 3(5), and 45(1) of the Planning Act, and asserts that the Decision provides no reasons on most of these tests, before concluding that the Decision “fails to meet the standard of adequate reasons because it does not include sufficient discussion and rationale of the four tests”.

31After reasserting the importance of Adjudicator’s illustrating the “path” the Decision has taken, the Request then lists the various headings from the Decision, which are reproduced below:

• The variances

• The test of fitting in

• Ascertaining the boundaries of the relevant neighbourhood

• Front Yard Setback

• Can the Residents’ Testimony be discounted?

• Listed Property next door at 174 Teddington

• Trees

On the basis of these Headings, the Requests alleges that “important questions” such as the tests respecting the Zoning By-law, test of appropriate development and test of minor were not analyzed, and that the only test looked at in any level of detail was the test respecting the Official Plan.

32The Request asserts that in the Decision “one would expect to see, at the very least, some discussion and analysis related to each of the four tests, and some discussion related to each variance.” “Yet”, they point out, “ one of the four tests receives any meaningful attention by the Member (the Official Plan test). The balance of the four tests are notably absent from the Decision”.

33In addition, the Request points out that “in addition, the decision contains no discussion whatsoever with respect to most of the variances sought by the Applicant”, ascribe the “error” to the reasoning that the failure of one variance, would result in the failure of other variances. Further, the Applicants assert that “the failure to provide any reasons whatsoever with respect to 7/9 variances is, independently, a breach of procedural fairness”.

34The Request then cites “Cultural Heritage” as a ground on no findings were made. The Request cites Paragraphs 33-38 of the Decision, which state that the Member was not prepared to make the findings that the Requestors wanted him to make, followed by the applicable reasons. The Decision states that the two Planning Witnesses, retained by the Applicants, and Appellants, did not want to provide evidence regarding a Heritage matter. The Request relies on decisions of the Ontario Superior Court to demonstrate that findings have to be made on the basis of evidence, and not the absence of evidence. Based on this, the Request alleges that findings were made on no evidence, which “again constitutes an error of law”.

35The Paragraphs in question are recited below:

33The next-door property, (locally called “the castle”) is listed under the Ontario Heritage Act.

36The Official Plan requires that if development is adjacent to a listed property the developer must ensure the property’s heritage value is retained to the satisfaction of the City”.

37Mr. Helfand [counsel for the Applicant] submitted that the opponents had

failed to sufficiently show the reasons for listing, what was the heritage or cultural heritage value, or that the City’s failure to attend at the hearing constituted a waiver of those issues by persons of expertise.

38I reject those arguments, because the obligation is on the proponent to

demonstrate Official Plan compliance, and there was no evidentiary basis laid out for these submissions. Mr. Mcgaffey and Mr. Mills, quite properly, refused to

venture into an area that was not the subject of their expertise, as was appropriate under their Acknowledgements of Expert’s Duty. I decline to make the findings urged upon me by Mr. Helfand

36The Requestors argue that the “Member’s statements” are contradictory because

“in paragraph 38 that neither party furnished evidence relevant to issues of cultural heritage. On the other hand, in paragraph 37, the Member expressly rejects the Applicant’s contention that there was no evidentiary basis to find that the proposed dwelling negatively impacted an adjacent property. It appears, therefore, that the Member is taking “judicial notice” of the heritage attributes, and alleged impacts, of the adjacent property” and conclude that “This was a breach of procedural fairness”.

37The Requestors assert, that the “case law establishes that where a trier of fact, on his or her own initiative, wishes to take judicial notice of a fact or state of affairs that bears on a key issue in a proceeding, the adversarial process requires that the court ensure that the parties are given an opportunity to deal with the new information by making further submissions, oral or written, and allowing, if requested, fresh material in response. The Requestors also cite how the Court of Appeal has cautioned that a trier of fact has no right to take “judicial notice” of matters that require expert evidence. They assert that the Member “should not have made any findings on matters of cultural heritage, positive or negative, given his acknowledged absence of evidence”.

38On the basis of the above grounds, the Requestor asks that the Decision be set aside, and a new Hearing be ordered, or that the TLAB allow the variances, on which no explicit findings were made, and remit the two variances, on which findings are being cancelled, back to a different panel.

THE RESPONSE TO THE REVIEW REQUEST

39The Response submitted by the Appellants, dated March 23, 2023, supports the findings made in the Decision. It states that the Member was “sensitive” to all the variances included in the Appeal, but focused on the two variances that were the most “contentious”- namely the front yard setback, and the FSI variance.

40In response to the allegations from the Applicants that the Member confined his analysis only to Policy 4.1.5 in the OP, the Appellants point out that the Decision analyzed and made rulings on the variances having regard to Official Plan Policies 4.1.5 ( as can be seen in Paragraph [11] of the Decision), as well as Built Form Policies 3.1.2.1, 3.4.5 and 3.1.2, based on Paragraphs [41] and [42] and footnotes 19, 20 and 21, also of the Decision. They also suggest that the findings were made on a “qualitative analysis” of the OP, which they rely on to conclude that the numerical measurement of the front yard setback (12.5 metres versus 10.5 metres), would not have made any difference to the findings arrived at in the Decision.

41With respect to the specific allegation about the Decision’s incorrectly citing the Front Yard Setback, and its impact on the findings, the Appellants counter that the Decision paid attention to their Witness’ identification of a “yellow line” which demarcated the “prevailing” type of front yard setback, the violation of which, they claimed, would result in a “ripple effect’, as stated in Paragraph [13] of the Decision:

“The first task is to ascertain the prevailing front yard setbacks and FSIs in the neighbourhood. I conclude in the case of front yard setback, the prevailing setbacks are shown by Mr. Mills’ “yellow line” in Figure 4, page 7, and for prevailing FSIs these are shown in the chart in Table 6, page 9. The latter are compiled from Mr. Torokvei’s planner’s (Mr. Mcgaffey’s) data”.

42The Appellants argue that the position of the “yellow line” in front of the houses is critical to the determination of measuring the “prevalent front yard setback”, while the planned integral garage at the Site stretches 3.8 metres in front of the adjacent dwellings into the front yard setback , resulting “in a 13 or 14 metre front separation- in other words, the integral garage encroaches significantly into the front yard setback, such that it is discernably beyond the critical “yellow line” The Appellants emphasize that the given the visibility of the aforesaid encroachment into the front yard, when compared to the yellow line that establishes the prevailing type for the front yards, the discrepancy in the numerical value of the requested front yard, which forms the crux of the Applicants’ objections, is “not as critical”, as the latter make it out to be.

By way of information, the yellow line is reproduced in “Figure 4” below from the Decision. By way of an editorial comment, the extent of the protrusion of the proposed integral garage, based on the Appellants’ information, is pictorially illustrated on the next page.

Figure 4. Mills pattern of prevailing front yard setbacks, as illustrated in the Decision respecting 160 Teddington

43With respect to the Applicants’ allegation about not accurately citing the FSI, the Appellants point out that the “only time the Member references the proposed FSI as 0.552 is in paragraph [27]” of the Decision. The Appellants point out that the Decision references an FSI of 0.52 twice in footnote [11]. While an FSI of 0.552 appears a total of five times, sometimes more than once in the same paragraph. They state that on the basis of the above references “it is clear the Member identified the FSI as 0.522 not 0.552.” As a result, they conclude that the FSI number appears to be “typographical n nature rather than the Member relied on that number in the analysis of FSI”.

44With respect to the second issue raised by the Applicants regarding the purported error of treating the failure of one variance resulting in the failure of all variances, the Appellants acknowledge that in the Vincent v. DeGasperis case, the Divisional Court held that the Tribunal is “required to consider each variance sought and reach an opinion as to whether or not it, either alone or together with the other variances sought, was desirable for the appropriate use of the subject property”. However, they refer to the findings of subsequent decisions, also by the Ontario Superior Court, such as Siimon V. Bowie 2010 ONSC 5989 , where the Court ruled that “Board decisions are to be read as a whole”. The Appellants also point out that paragraph 15 of Siimon v. Bowie makes it clear that the separate application of each test is not a requirement, and may not be applied “formulaically”, and that the Court held that it was sufficient if the correct tests were that the Board applied the correct tests.

45In addition, the Appellants cite the case of Re 251555 Projects Ltd. And Morrison (1975) 5 O. R. (2d) 763 [1974 CanLII 750 (ON SC)] wherein the Divisional Court noted on page 5:

“But to reject the application, they only had to find that one of the requirements are missing. If the decision of the Board is considered, it is clear that the Board found that the requested variances were not desirable for the appropriate development or use of the land. It is true the Board did not use those exact words, but this was undoubtedly the effect of its decision.”

The Appellants use this decision to justify the Member’s refusing to approve the application only had to find one of the tests not met, and state that the failure of FSI alone was enough to affect the whole application.

46The Appellants then refer to Paragraphs [8]- [10] of the Decision, cited below:

8Number 160 Teddington Park Ave is presently a bungalow, on an east west street, about three blocks east of Yonge. It abuts the Rosedale Golf Course, a ravine on the Don River system. The new house is proposed to be a “garage forward” design, with two-storey wing that projects 7.28 m (23.9 ft) closer to the street than is allowed. This and some of the other important variances are shown in Figure 2 below.

9Although the building is more than 17 m long (the usual maximum length), length is governed by a zoning formula that requires the overlong portion to be “pinched in”. Anything farther than 17 m from the front wall requires a 7.5 m sideyard on each side, result in a “T-shaped” rear wall, (coloured red and marked “as of right line”).

10In addition, Mr. Torokvei seeks variances for an overly large Floor Space Index5 (FSI), building height, driveway width and east and west side yard setbacks. The building height variance is shown in the darker polygonal shape beneath the roof in the lower cross section. The most important variances are the front yard setback and the FSI requests

After reciting the above paragraphs, the Appellants conclude that “a reading of these paragraphs show the member was aware of the connectivity of the variances and viewed the front yard setback and FSI were the most important.” and “ In light of paragraph [10] of the Decision, it can be concluded that the Member viewed the FSI and Front Setback variances as pivotal and the failure of either would result in the failure of the application given the connectivity between those variances and the other variances”.

47With respect to “Issue 3” raised by the Applicants, (namely the Errors Respecting the Interpretation and Application of Official Plan Section 4.1.5 (Rule 31.17 (c) – Error of Law ), the Appellants submit that the Member did not err in his reading of Policy 4.1.5 by focusing on the “Immediate Context”, before providing sufficient clarity about why he did so in paragraphs [15] and [16] of the Decision. The Appellants explain how Paragraphs [15] and [33] of the Decision identify the Geographic Neighbourhood, and the Immediate Context, on the basis of the characteristics, set out in 4.1.5 of the Official Plan, followed by a discussion of the various variables on which the Decision preferred the evidence of the Appellants, and preferred their Geographic Neighbourhood . The Appellants then explain Paragraph 16 of the Decision, recited below, and highlight how it relies on the Immediate Block as the basis of the determination of neighbourhood characteristics.

Paragraphs [15] , and [16] of the Decision are recited below:

15I prefer Mr. Mills’ neighbourhood. To draw the boundaries, the Official Plan lists nine criteria: “zoning; prevailing dwelling type and scale; lot size and configuration; street pattern; pedestrian connectivity; and natural and human-made dividing features”. Mr. Mills’ neighbourhood “ticks most of the boxes”:

• Lot sizes, zoning: These 22 lots are distinctively sized in terms of area; from 150% to 200% larger than Golfdale lots. The zoning of the immediate block is also distinctive; a minimum frontage of 22.5 m (73.8 ft) whereas the other properties are zoned minimum frontage of 15 m (50 feet).

• Scale. The scale is bigger. The subject lot is 22.81 m wide (almost 75 feet) and has a lot area of 1351 m2 (14,500 sq ft or about 0.3 acres). The maximum permitted 0.35 density would allow a house with a GFA of 5090 sq ft, which is also large, even by nearby Golfdale standards.

• Street pattern and pedestrian connectivity. I heard voluminous evidence that Teddington has a “park-like” atmosphere, owing to the pedestrian-only path at the end of the block, the grassed central strip from Bocastle to about the Torokvei house, treed front yards and low traffic volumes. In effect, the street functions as a long, internal driveway for the 22 residents.

• The “chicane”, a jog in the street pattern with narrowing of the road surface, adding interest to pedestrian vistas. The “closed-in’ space also encourages social cohesiveness amongst dog walkers and strollers drawn from the larger community. The other Mcgaffey areas, while also composed of upscale residences, do not have these features.

“Natural and human-made dividing features”. As well as the features just mentioned, the block is adjacent to the private Rosedale Golf Course, whose management permits public cross-country skiing in the winter. Its ravine lands permit unique opportunities to “design with nature”; for example, the house at #180 appears to be a bungalow, but its rear façade is two stories, with opportunities for views. The other Mcgaffey properties do not back onto a ravine.

16In short, I find that the immediate block is the appropriate neighbourhood for the determination of neighbourhood characteristics

48Responding to the Applicants’ allegation about the substitution of Section 4.1.5 by the test of “fit” in the Decision, the Appellants argue that the quotation marks used for the expression “fits” in Paragraph 11, followed by references to the “prevailing”, and references to Section 4.1.5, in Paragraph [12], and conclude that the “test of fit” is shorthand for Section 4.1.5 of the OP. They also state that it “was open to the Member to rely on Mr. Mill’s evidence and to focus on the immediate context based on the Official Plan that greater relevance be given to the immediate context rather than the broader context”.

49Referring to the case of R. v . Morissey Careswell Ont. 18, brought by the Applicants with respect to the “misapprehension of evidence”, the Appellants argue that this case is not applicable to this Appeal because of the following reasons:

• The Court found that for evidence to be misapprehended, it must be in regard to material parts of the evidence and those errors play an essential part in the reasoning process.

• It is wrong to analyze a trial judge’s reasons by dissecting them into small pieces, and examining each piece in isolation, as if it described the legal principle applied by the trial judge, because “Reasons for judgment must be read as a whole”.

Applying the above reasoning to the Request, the Response argues that “The Decision of the Member read as a whole can be read as reasonably applying Section 4.1.5 along with other official plan policies based on the facts before the Member. The matter of FSI when the decision is read as a whole shows that the proper FSI number was used except for one line. Any misapprehension of the front setback number did not impact his ratio which was not numeric or quantitative but qualitative and in relation to the adjacent properties, and as such misapprehension does not rise to a level of vitiating the decision of the Member”.

50The Response also comments about the “attack” on the Member’s references to 4.1.5, by focusing on a part of the Decision “without regard to the other parts of the Official Plan (OP) that the Member referenced in paragraphs [41] and [42] and footnotes 19, 20, 21”. Paragraphs [41] and [42] are recited below:

40S. 9(2) of the Ontario Land Tribunal Act states that TLAB may attach a condition which is “fair in the circumstances”. I find that front yard trees are so important to the character of this neighbourhood that it is fair in the circumstances to require a condition to preserve at least one tree, if the variances are granted.

41There are two tree policies in the Plan, one of which explicitly mentions front yard setbacks. The policies are:

• “preservation of trees “wherever possible” and

• promotion of green initiatives, subject to the regulation regime in the Municipal Code chapter 813

51Referring to Issue [4] raised by the Applicants, namely the alleged failure to make a “mandatory” finding on Provincial Policy and Plans, the Appellants state in their Response that the matter before the Member was for variances related to a replacement house, as opposed to the creation of additional units, or a severance which would also create additional units, which would have required a discussion of the higher level Provincial Policies.

52The Response goes on to say that “The other grounds concerning any misapprehensions, if any, in regard to FSI and front yard setback and whether the immediate context was the most relevant”, and assert that “The Applicant has not provided evidence that the expert evidence tendered on the Applicant’s behalf is sufficient to warrant a different ruling. “

53The Appellants also point out that negative finding in regard to Provincial Policy would have ended the analysis and resulted in a refusal. A positive finding still required an analysis of the Official Plan and other tests. Should the TLAB find the Member’s analysis was in error it does not warrant approving the Request for Review on its own.

54Discussing the last of the issues brought up by the Applicants, namely the inadequacy of reasons, the Response argues that the Decision provided sufficient reasons in the following two respects:

1. The Decision does provide adequate reasons with respect to the four

tests and the totality of the variances sought by the Applicant;

2. The Decision does provide adequate reasons or conclusions with respect

to cultural heritage issues

With respect to the allegations alleging the lack of adequate reasons for all four tests, the Response asserts that The Applicant “made a fundamental error in law stating all the four tests must be recited when there is a refusal”. They assert that “if an applications fails even one of the four tests fails, then the application fails.”, before stating that is “ only where a positive finding is made that all four tests need to be reviewed, and cite the Ontario Superior Court’s decision on “Re: 251555 Projects Ltd. And Morrison (1975) 5 O. R. (2d) 763 [1974 CanLII 750 (ONSC)].”

55With respect to the issues pertaining to cultural heritage, the Response states that these findings were not pivotal to the Decision, because the analysis clearly shows that while the findings on cultural heritage were referenced, but were found to be not important enough to influence the Final Decision. The Response also points out that the Applicants did not refer to the request from the Member to provide a response to the heritage matter either jointly, or separately.

56The Response then details a number of issues with the Request, with reference to the inadequacy of reasons and responds to them by arguing that the reasons provided in the Request are inadequate to set the entire Decision aside. By way of an editorial note, I would like to point that while many of these points have been referred to earlier in my recitation of submissions, it may be relevant to reiterate them below:

1. The Member properly, except in one line, referred to the correct FSI variance. The Member clearly indicated that the prevailing FSI on larger lots was 0.47. This provided sufficient information to assist the Applicant in understanding the reasoning applied by the Member.

2. In regard to the front set back the Member did a qualitative analysis rather than quantitative and so any misdirection as to the number would not be sufficient to impact the Decision, and warrant a new hearing.

3. The Member correctly identified the immediate context, and paid greater attention to the characteristics of the immediate context based on the tests in 4.1.5, and that he identified why the evidence of Mr. Mills was preferred on this point.

4. Other matters such as the Provincial Policy and heritage were dealt with, and not ignored. They were not identified as being pivotal to the analysis of the Member, and any error or misdirection therein should not warrant a rehearing of the matter.

5. The Member made a detailed analysis of issues raised by the Applicant and why the Member accepted the evidence of the residents. The Member provided an opportunity to the Applicant to respond to the question of heritage.

6. The Applicant has failed to properly consider the full wording of 4.1.5, and as a result , made arguments that did not present the full wording of 4.1.5 which is fatal to the Request for Review.

57On the basis of these submissions, the Appellants ask that the Review Request be refused “with reasons”, and ask that the TLAB not issue a new decision, which disallows their Appeal, and approves the Application by allowing the variances requested by the Applicants.

58The Response states that is not appropriate for the TLAB to refuse the front yard variance, while granting the rest of the variances, because this would result in a different massing of the proposal. Given the garages and part of the habitable space are found in the front yard setback, the deployment of them within the Site could result in a different massing and scale than what was originally proposed by the Applicants.

59Lastly, the Request suggests that if the Decision were to be set aside, the TLAB should direct a de novo Hearing before a different member, as opposed to the Applicants’ request that it not be sent back for a rehearing because that would result in a failure of Natural Justice, under the Statutory Powers Procedures Act (SPPA) for the Appellants to test the evidence of the Applicant, and provide their own evidence, and submissions.

REPLY TO THE RESPONSE FROM THE APPLICANT

60On March 24, 2023, the TLAB received Reply submissions from the Applicant. The Applicants stated that they disagree with “the entirety of the Response”, and continue to rely on the arguments put forward in the original Request for Review.

61The Applicants dispute the accuracy of the Respondent’s submission which state that the analysis in the Decision regarding the Front Yard setback is more qualitative, rather than quantitative in nature. They rely on the following quotes from the Decision to demonstrate that that the Decision was quantitative, and in their mind, relied on incorrect numbers:

Paragraph 19- I agree that the proposal does reduce the legal front yard setback requirements for the two adjacent houses by about 3.5 m

Paragraph 20 of the Decision states that: “Because the 7.3 m setback is numerically large and impacts the front wall uniformity, it affects the public realm and therefore I find the impact is unacceptably adverse.

The Applicants assert that “This is a clear determination that the quantum of the front yard setback variance and its concomitant impact on front wall uniformity, was a critical, if not determinative, factor in respect of this variance.

62With respect to the argument about how the “failure of one variance” is not a failure of all variances, the Reply states that in Paragraph 21 of the Response, the Appellants “conflate” the four tests with the individual variances themselves, and add that. “Neither the statute, nor the case law states that all variances must be approved for any individual variance to be approved”.

63With respect to the Decision’s misapprehending the evidence, the Reply quotes Paragraph 29 from the Response “was open to the Member to focus on the immediate context”. The Reply asserts that the “ fundamental concern is not whether the Member chose to give more weight to the immediate context over the broader context. Rather, the Member committed a serious, and reviewable, misapprehension of evidence by creating a false dichotomy between the evidence of Mr. Mills and Mr. McGaffey, both of whom selected the same immediate context for the purpose of their evidence”.

64With respect to the Decision providing insufficient reasons respecting cultural heritage, the Applicants disagree with the Response’s conclusion that the cultural heritage reasons) are not pivotal to the decision, and assert that “ the Member’s findings in respect of cultural heritage clearly formed part of his overall decision, yet the reasons provided and conclusions reached were insufficient”.

65With respect to the Decision providing insufficient reasons respecting cultural heritage, the Applicants disagree with the Response’s conclusion that they (i.e. cultural heritage reasons) are not pivotal to the decision, and assert that “the Member’s findings in respect of cultural heritage clearly formed part of his overall decision, yet the reasons provided and conclusions reached were insufficient”.

66The Reply specifically refers to the Response’s suggestion in Paragraph 45 of the latter’s Argument that the Parties were given an opportunity to provide a response jointly or separately, thereby giving an opportunity to further respond, and assert that “The Parties were not given an opportunity to file any further evidence in respect of cultural heritage issues”.

IMPORTANT QUESTIONS AND ISSUES RELEVANT TO THIS REVIEW REQUEST DECISION

67This Section reviews what I find to be important questions that will help to determine how to proceed with the Review Request, analyzes relevant submissions made by the Parties, and provides answers to the same. The answers provided in this Section are relied upon later to analyze the Review Request brought forward by the Applicants in the next Section, titled “Conclusions about Questions Specifically Raised in the Review Request”.

68What documents were relied upon to make findings with respect to the Review Request?

The documents relied upon, and reviewed in detail are the following:

• The Decision respecting 160 Teddington Park Ave, released February 8, 2023, written by Member Yao

• The Review Request, filed by the Requestor on February 24, 2023

• Response to the Review Request, filed by the Appellants on March 23, 2023

• Reply to the Response to the Review Request, filed on March 24, 2023

• Expert Witness Statement submitted by the Applicants, dated August 8, 2022

• Expert Witness Statements submitted by the Appellants, dated September 2, 2022

• COA decision dated April 24, 2022

69Is it necessary for a Decision to make a finding with respect to Section 3 of the Planning Act?

The Applicants allege that there is a reviewable error made in the Decision , because Subsection 3(5) of the Planning Act provides that a decision of the TLAB “shall be consistent with the policy statements” (Provincial Policy Statement, 2020) and “shall conform with the provincial plans that are in effect” (The Growth Plan for the Greater Golden Horseshoe)- they interpret this to mean that it is mandatory for a Decision to make findings on both the PPS, and the Growth Plan, and not making findings on the higher level Provincial Policies, is fatal to the Decision.

The Sections from the Planning Act, as recited by the Applicants, are reproduced below in bold, italicized letters:

Provincial Policy – S. 3

A decision of the Toronto Local Appeal Body (‘TLAB’) must be consistent with the 2014 Provincial Policy Statement (‘PPS’) and conform to the Growth Plan for the Greater Golden Horseshoe for the subject area (‘Growth Plan’).

Minor Variance – S. 45(1)

In considering the applications for variances from the Zoning By-laws, the TLAB Panel must be satisfied that the applications meet all of the four tests under s. 45(1) of the Act. The tests are whether the variances:

• maintain the general intent and purpose of the Official Plan;

• maintain the general intent and purpose of the Zoning By-laws;

• are desirable for the appropriate development or use of the land;

• are minor

For the purposes of this discussion, the italicized, bolded phrases above, reproduced from Sections 3 and 45(1) of the Planning Act, are collectively referred to as the “Statement”. I interpret the Statement to be a two part test, where a variance needs to satisfy the first part focusing on Section 3, followed by the second part focusing on Section 45.1 of the Planning Act ( i.e. the four tests), in order to be approved.

Prima facie, it may appear that the Statement can be interpreted to mean that separate findings have to be made on Section 3, as well as Section 45.1 of the Planning Act, in order for a variance to be approved. The logical corollary arising from this conclusion, is that if a variance fail both tests, then it would have to be refused. However, what is not explicitly answered, is the consequence of a given variance, satisfying the one component of the two part test, but not the other. It is intuitive to state that the consequence of a variance not passing Section 3, or Section 45.1, is that it would be refused. This intuitive answer is further refined by the relationship between the higher level Provincial Policies, and the tests under Section 45.1, where the Official Plan implements the higher level Provincial Policies at the municipal level, and the Zoning By-Laws interpret, and implement the Official Plan. In other words, the relationship between the Provincial Policies, the OP, and the Zoning By-law, may be visualized as a funnel, whose radius reduces from the top to the bottom, such that the top of the funnel, or the “mouth” represents the higher level Provincial Policies, while the “neck” of the funnel, represents the OP, and the Zoning By-law. Such a visualization helps one grasp the important fact that while a variance may travel through the top smoothly, the critical portion of the funnel to be traversed is the neck, which could be difficult to navigate, given its narrowness. On the other hand, a variance that has successfully travelled through the funnel, and exited through the neck has obviously passed successfully through the top of the funnel.

In other words, the “action” that distinguishes approval, from refusals, is at the neck of the funnel, as opposed to the mouth at the top, which makes it possible for a practical, if not elegant methodology, to concentrate on the “decisive” neck, as opposed to the significantly more “accessible” mouth of the funnel, because what happens at the neck impacts the findings significantly more than what happens at the mouth- one can conclude that a variance that has made it to the neck, obviously made it past the mouth.

As a result of the above discussion, I find that it is reasonable for an adjudicator to go straight to Section 45.1 of the Planning Act, and analyze the proposal on its basis, as opposed to addressing Section 3, followed by Section 45.1 of the Planning Act, because the variance could not have made it as far as Section 45.1, without satisfying Section 3.ver implicitly. . It is important to note that in the alternative, had the Adjudicator made a finding that the variances satisfy Section 3 of the Planning Act, and then find that they failed Section 45.1 of the Planning Act, there would be absolutely no difference whatsoever to the overall outcome of the Appeal- namely the variances in question would have still been refused.

In this Decision, the Adjudicator also provides a reason for not discussing the relationship between the proposal, and Section 3 of the Planning Act. At Paragraph [3] of the Decision, we find:

The variances must conform to, and be consistent with higher level policy documents such as the Provincial Policy Statement and the Greater Golden Horseshoe Growth Plan. Mr. McGaffey made reference to aspects of these policies promoting good design, but did not provide any analysis beyond setting out sections of those policies he thought might apply. He also mentioned TRCA regulation; this is not an issue in this hearing. Mr. Mills did not refer to these policies in any detail. I find they were too general to offer much guidance for this case, which is to remove an existing house and build a larger one in an established urban area. Because of this, and because the words “consistent with “and conform to” are general, I do not discuss these policies and I have made no negative or positive findings in respect to them

I find the paragraph above to be sufficient by way of explaining why the variances were not analyzed through the prism of Section 3 of the Planning Act, and also note that the Request does not challenge the above reasoning. The elegance of the method lies in its taking the shortest path to a supportable finding; the alternative of the rigorous and vigorous path suggested in the Request would have little to show for the extra labour, and volume of analysis- in other words, there is only an ostensible difference, with no distinction, between the two suggested routes..

On the basis of the above reasoning, I find that the Decision does not err by not making a finding on the relationship between the variances and Section 3 of the Planning Act.

70Is it necessary that separate findings always be made on all the four tests stated under Section 45.1 of the Planning Act?

In the strictest interpretation of adjudication, an adjudicator has to subject each and every variance, to each of the four tests under Section 45.1 of the Planning Act, to make a finding about the approval of the variance in question.

It would be trite law to state that the four tests, listed under Section 45.1 are independent of each other, and that a variance has to satisfy all four tests independently to be approved. Success is predicated on the test of “parallel fulfillment”; in other words, a variance has to independently pass all four tests in order to be approved. Should a variance not fulfill one, two, three, or all four of the tests under Section 45.1 of the Planning Act, it has to be refused- in other words, the uniqueness of a variance’s path to success, contrasts starkly with the amorphousness of the multiple paths to refusal. Given the above contrast between the approval and refusal of a variance, the question to be asked is the “value add” of analysis focusing on all the remaining tests against which a variance has not been tested, after the analysis demonstrates that the variance, in question , has already failed at least one of the tests.

Should a variance be viewed through the prism of each and every one of the remainder of the tests, after it has demonstrably not satisfied one or more of the tests under Section 45.1, what emerges is a richer and more fulsome discussion, without any difference whatsoever to the final outcome from a findings perspective.

I therefore find that while both “vigour” and “rigour” as alluded to in the Request are desirable qualities in decision making, they are is not de rigeur for an “elegant” Decision, which arrives at fulsome findings through charting the shortest path through the evidence . Given that the failure of decisions does not distinguish between “partial failure” (where a variance fails some tests under Section 45.1), and “comprehensive failure” ( where a variance fails all four tests under Section 45.1), there is no practical merit to a decision’s proceeding to recite each and every test, and subject a given variance to all four tests, if the latter has already failed one of the four tests.

After stating that a fulsome discussion of all tests, and all variances is a sine qua non, only in the context of an approval of all of the variances before the Tribunal, I find that the aforementioned statement cannot be restated to imply that refusal of a variance has to follow an identical process of a variance being subjected to all four tests under Section 45.1.

71Did the Parties have an adequate opportunity to offer evidence on cultural heritage issues?

It is important to state that the finding below is made solely on the basis of submissions by the Parties, without any reference to a transcript of the Hearing. I find that it is helpful to recite Paragraphs [35]- [38] of the Decision respecting 160 Teddington, before analyzing the same:

35The joint Memorandum giving me background on the Ontario Heritage Act states:

The Register may also include property that has not been designated by by-law, but that Council believes to be of cultural heritage value or interest. . . .A municipality is not required to undertake a robust individual heritage analysis of a property in order to list the property on the Heritage Register. . . .If a non-designated property is listed on the City's Heritage Register, the owner of the property must provide municipal council with written notice 60 days prior to demolishing or removing the building or structure, thus giving municipal Council the opportunity to consider whether the property should be designated. . . .

36The Official Plan requires that if development is adjacent to a listed property, the developer must ensure the property’s heritage value is retained to the satisfaction of the City”

37Mr. Helfand submitted that the opponents had failed to sufficiently show the reasons for listing, what was the heritage or cultural heritage value, or that the City’s failure to attend at the hearing constituted a waiver of those issues by persons of expertise.

38I reject those arguments, because the obligation is on the proponent to demonstrate Official Plan compliance, and there was no evidentiary basis laid out for these submissions. Mr. Mcgaffey and Mr. Mills, quite properly, refused to venture into an area that was not the subject of their expertise, as was appropriate under their Acknowledgements of Expert’s Duty. I decline to make the findings urged upon me by Mr. Helfand

As I understand, there was a difference of opinion between the Parties on the impact, and relevance of the listing of the neighbouring house at 178 Teddington Park Blvd’s in the City of Toronto’s Heritage Register, on the Subject Property. The Applicants made various submissions which concluded that the non-attendance of the City at the Proceeding before the TLAB, implied that there was no impact. The Appellants disagreed with this conclusion.

The Adjudicator sent out an Interim Decision, dated November 21, 2023, which provided an opportunity to the Parties to make a joint submission together on the “cultural heritage” issue by December 7, 2023, if they were in mutual agreement. In the alternative, the Applicants could submit their interpretation of the cultural heritage issue by December 7, 2023, while the Appellants could submit their interpretation of the same issue by December 14, 2023

As can be seen, Paragraph [38] of the Decision refers to the above arguments, and offers a rationale for not accepting the arguments by stating “ I reject those arguments, because the obligation is on the proponent to demonstrate Official Plan compliance, and there was no evidentiary basis laid out for these submissions. Mr. McGaffey and Mr. Mills, quite properly, refused to venture into an area that was not the subject of their expertise, as was appropriate under their Acknowledgements of Expert’s Duty. I decline to make the findings urged upon me by Mr. Helfand.”

The bolded portions of the recitation from the above Decision are important because they provide the rationale for the disagreement with the Applicants.

On the basis of the information made available on the record, it is not clear to me what the Applicants refer to in Paragraph 18 of their Reply, when they say “The Parties were not given an opportunity to file any further evidence in respect of cultural heritage issues”. , because there is nothing on the record which demonstrates that they wanted to provide more “evidence”.

As a result, I cannot make a finding that the Parties did not have an adequate opportunity to “offer evidence” on the cultural heritage issues

72Does the refusal variance of one variance, automatically result in a refusal of all other variances?

The Request eloquently argues that that refusal of a given variance does not automatically result in negation of other variances, unless a strong nexus between the variance in question, and other variance(s) can be established. It is important to note that one of variances in play before the TLAB in this case, is the variance respecting the FSI.

I find that the most common example of a variance, with the ability to influence many other variances is the FSI variance- the FSI is the ratio of built space/ the area of the lot. Since the area of the lot cannot change, the FSI is usually influenced by the built space, which depending on the placement of the dwelling, can result in bigger or smaller setbacks to the front, sides and back of the house, as has happened with the proposal. Even if I consider that the Decision has the wrong front yard setback at 10.5 metres, instead of 12.5 metres, it cannot be denied that there is an inverse relationship between the FSI and the width of the front yard setback, even if this relationship is difficult to quantify- it is reasonable to find if nothing else changed, a reduced front yard setback, could result in more built up space, resulting in a bigger FSI. Likewise, there is a relationship between side yard setbacks, and the FSI of the house, again of inverse proportion- if the side yard setbacks increase, then the FSI should decrease, subject to the assumption that other variables are consistent.

The Request concedes that variances can be related to each other, but argues that the variances in this case are not interdependent. I disagree with this suggestion, based on the reasoning in the above paragraphs, as well as the lack of interdependence could have been stated clearly at the Hearing.

As a result of the above discussion, it is easy to see that there is a relationship between the FSI and the width of various side-yards, and front yards- in the absence of any specific evidence about the mutual exclusivity of the variances, I find that it is reasonable to find that there is a nexus between the FSI variance, and at least three of the requested variances, related to the Front Yard setbacks, and two variances respecting sideward setbacks. The lack of the demonstrability of the mutual exclusivity of the variances, results in my agreeing with the perspective of the Decision, where the refusal of one of the “main” variances, results in the refusal of the entire application, without analyzing other variances.

CONCLUSIONS ABOUT QUESTIONS SPECIFICALLY RAISED IN THE REVIEW REQUEST

73Issue 1 – Did the Decision commit errors of fact by misunderstanding what was being appealed?

The specific errors referred to in this Section are:

(i) Incorrectly citing the Front Yard Setback variance sought

(ii) Incorrectly citing the FSI variance sought

The Request raises an interesting question about the possibility of the Member making findings on variances “not before him on Appeal”, because the wrong dimensions on the Front Yard Setback, and the wrong numerical value for the FSI variance, were used throughout the Decision. I note that in the previous Section, I have analyzed both the alleged errors, and have found that neither error is significant enough for the Decision to be set aside.

The Request relies on Section 45(18) of the Planning Act, which states that the “ Tribunal may dismiss the appeal and may make any decision that the committee could have made on the original application”, and further clarifies the restrictions on the Tribunal’s powers, as being a “purely appellate jurisdiction”. The Review then relies on the decision made by the Ontario Court of Appeal in the case of “Colicchia Construction Ltd. v. Schmidt, 1968 CanLII 333 (ON CA), [1968] 2 O.R. 806”, and concludes that the TLAB has no power to refuse relief respecting something “ that was not have never contemplated by the applicant, never raised before the Committee of Adjustments, and never dealt with by the Committee of Adjustment”.

I have reviewed with substantial interest, the facts, and reasoning of the “Colicchia” decision(“Colicchia Construction Ltd. v. Schmidt, 1968 CanLII 333 (ON CA), [1968] 2 O.R. 806”). My understanding of the reasons why the Ontario Court of Appeal overturned a decision made by the Ontario Municipal Board’s ( the “OMB”) with respect to the property in question, is that while the Applicant had requested for a parking space at the rear of their house, and was granted the same by the COA., the OMB approved a parking space at the front of the house, with dimensions that were different from what the Application stated –the location, and the dimensions were “never contemplated ( my emphasis) by the applicant, never raised before the Committee of Adjustment, and never dealt with by the Committee of Adjustment”. In other words, the OMB decision in question substituted a “real” variance submitted by the Applicants, with a different variance, conjured out of nowhere, and proceeded to make a ruling on the latter.

I find that the Appeal respecting 160 Teddington is distinguishable from Colicchia for the following two reasons:

• The Appeal respecting 160 Teddington did not change the specific location of where the variances were to be granted, while Colicchia changed the parking spot from the intended rear of the house to the front, the Appeal respecting 160 Teddington made no such changes to the location of the Front Yard variance.

• In the absence of any advice, or suggestion from the Applicants, about how the word “contemplated” may be interpreted, I have to turn for assistance to dictionaries to better understand the nuance of the word in question. The meanings of “contemplated” are recited below the name of the dictionary where they were found, with the dictionary’s name appearing in bold letters

Collins:

1. think about whether to do something, or not

2. think about carefully for a long time

Merriam Webster

3. to view or consider with continued attention, or meditate on

4. to view as likely or probable or as an end or intention

Based on the interpretation provided by the dictionaries, as cited above, I find that even if the Applicants’ final version of their Application did not follow the “stale” Zoning Notice, by changing the Front Yard Setback to 12.5 metres, from the Zoning Notice’s recommendation of 10.5 metres, a Front Yard Setback of 10.5 metres was actually contemplated ( my emphasis) during the time between the issuance of the Zoning Notice, and the COA hearing, though the Applicants settled on a 12.5 metre Front Yard Setback at the COA Hearing- the 10.5 metre was in play till it was changed to 12.5 metres at the Hearing before the COA.

As a result, I find that the objection raised in the Request fails because of its failure to satisfy the word “contemplated”. I also find that the alleged errors in the Decision don’t constitute errors in law, or an error in excess of jurisdiction, such that the Decision does not have to be set aside.

74Issue 2- Did the Member commit an error of law by concluding that the failure of a single variance automatically results in the failure of all other variances

In addition to the analysis provided in Paragraph [72] above, with respect to this question, which focused on the specifics of the relationships between the FSI variance, and other variances in this proposal, it is important to explore the aforementioned question generically i.e. where there is no relationship between the variances.

I begin by reciting Paragraph [21] from the Decision, and underline a part of the sentence that is important for the following discussion:

21The failure of one variance means the entire application fails, since each of the variances must individually and cumulatively meet the four tests

My understanding of the above finding is that since each of the variances must individually, and cumulatively meet the four tests, the failure of any variance to satisfy a given test, translates into the cumulative failure of that variance with respect to Section 45.1 of the Planning test, because cumulative success is predicated on individual success of the variance in question to pass all four tests. Should one variance fail any one of the four tests, then the collective of the requested variances cannot cumulatively satisfy all the four tests, because the cumulative success of all the variances, is dependent on individual success of each and every variance, with respect to each and every of the tests. In other words, the failure of any variance with respect to any one test snowballs into the cumulative failure of all variances in an application.

In other words, I understand that the aforementioned finding in Paragraph [21] to mean that should any variance stumble with respect even one of the four tests under Section 45,1, it will result in the tumbling of the entire application- I understand the Decision to mean that this process is universal, irrespective of whether, or not there exists a nexus between some or all of the variances. (my emphasis). The Request focuses on cases where there could be a demonstrable nexus, as opposed to the generic finding, in its entirety.

Given that the Request did not challenge the universal applicability of the finding in Paragraph [21] of the Decision, I find that the latter should be allowed to stand.

I find it important to address the universal aspect of the finding in Paragraph [21] of the Decision, because of how the question has been phrased in the Request- it addresses the more generic question of whether or not the refusal of a single variance, can automatically result in the refusal of other variances, instead of a question specific to the circumstances of this proposal.

75Issue 3- Did the Member commit errors in the Interpretation and Application of Section 4.1.5?

The allegations in the Request regarding Section 4.1.5 are listed in bolded letters, followed by the corresponding analysis:

• Materially misapprehending the evidence before him respecting the geographic neighbourhood:

I find that the Request compares the diagrams of the general neighbourhoods, and recites paragraphs from the Witness Statements of both the Expert Witnesses, and comes to conclusions- the issue here is that it recycles material that was before the Adjudicator who came to findings, after reading this material, and ( my emphasis) hearing oral evidence regarding these issues, and has analyzed both in his Decision. I find that while there is considerable information presented in the Request in the form of diagrams, and explanations from the Witness Statements, there is no recitation of evidence from the Proceeding in terms of the Examination-in-Chief and Cross-Examination of the Witnesses, which would have been indispensable to me in terms of understanding the interactions of the planning positions of the Witnesses, and what the resulting conclusions were. I am in complete agreement with the Applicants’ own submissions that about how cases ought to be decided on the “evidence presented by Parties in open court”, and find that in the absence of the absence of discussion of evidence obtained by way of examining the Witness, my analysis would reduce to making findings solely on the basis of the Witness Statements, as opposed to evidence that expands on the latter- I have less material to rely upon for making findings than the Adjudicator.

In the absence of the recitation of oral evidence from the Proceeding, I find that the Decision’s findings must be maintained because it clearly set out reasons why the Appellant’s evidence is preferable in this regard, and how the Applicants did not consider the “chicane”, or the jog in the street pattern, which allows pedestrians and dog-walkers to congregate, while other “upscale” areas, given prominence in the Applicants’ evidence, does not refer to this feature.

As a result, I find that no reviewable errors have been committed, on the basis of Section 31 of the Rules.

• The Member’s Analysis of Neighbourhood Character was not based on evidence because he “discarded” the character of the Broader Context: The crux of the Applicant’s complaint is that is that the Decision’s analysis “discarded” 26 data points in the General Neighbourhood, and concentrated on 6 data points in the Immediate Context. There is no objection in the Request to the Decision’s findings on the identification of an Immediate Context, which according to Policy 4.1.5, takes precedence for analytical purposes, over a general neighbourhood, when the latter is distinguishable from the former.

I find that the Decision’s findings are consistent with the approach of identifying an Immediate Context, distinguishable from the general neighbourhood, and relying on COA examples from the former, and not the latter, because the evidence preferred by the Adjudicator relied on an Immediate Context as the basis for conclusions.

I find that the acceptance of 6 data points in the Immediate Context, and the “discarding” of 26 data points outside the same, is the numerical consequence of the Decision’s accepting the existence of an Immediate Context. Consequently, I find that the Request’s allegations of the “discarding” of data points do not constitute a reviewable error, under Section 31 of the Rules.

• Section 4.1.5 is erroneously referred to as “the test of fit”: While the Request is correct in stating that the “test of fit” does not appear in the OP, the phrasing in the Decision from Paragraphs [11] and [12] of the Decision, repeated below, makes it crystal clear that the “test of fit” is “shorthand” for the entire recitation of Section 4.1.5:

11The main test in the Official Plan is whether the development “fits in”, shorthand for the policy in Section 4.1.5. This test targets setbacks and density (and other parameters), all preceded by the word “prevailing”.

12Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular: . . .

a) . . .

c) prevailing heights, massing, scale, density and dwelling type of nearby residential properties;

d) . . .

e) prevailing location, design . . . of driveways and garages;

f) prevailing setbacks of buildings from the street or streets;

g) prevailing patterns of rear and side yard setbacks and landscaped openspace;

h) continuation of special landscape or built-form features that contribute to the unique physical character of the geographic neighbourhood; and

i) conservation of heritage buildings, structures and landscapes

As can be seen, the Decision accurately lists the Policy, before applying the principle of “prevailing” to the front yard setbacks on the basis of the “yellow line” in Figure 4, Page 7 of the original Decision, which is reproduced in Paragraph [43] of this Review Request Decision. I find that the Decision does not turn on the use of a particular choice of words, even though the Request may have preferred for the Policy to be referred to with a different set of words, because the choice of words in this case, makes it clear that the expression in question is “shorthand” for an identifiable Policy, which is clearly recited, leaving no room for confusion. As a result, I cannot agree with the following assertion found in the Request- “ By re-inventing section 4.1.5 with his own shorthand, the Member has rendered the Official Plan policy tests effectively unknowable”.

As a result, I find that the alleged error, where Section 4.1.5 was referred to as the “test of fit”, does not “invent” a new test, as the Request alleges, and consequently, does not constitute adequate grounds to set the Decision aside, under Section 31 of the Rules.

• The test respecting the “Official Plan” is referred to as the “main test” in the Decision: The Request argues that the Decision is flawed, because it refers to the test respecting the OP as being the “main test”, not taking into account that all tests under Section 45.1 of the OP, have the same weight.

While the Request is correct in stating that all the four tests under Section 45.1 of the Planning Act have equal weight, I find that the reference to the test respecting the OP as the “main test” is the consequence of the preponderance of evidence in this Appeal, centering on the test respecting the OP. As the Appellants point out accurately in their Response, the Decision does refer to Section 3.1.2 (Built Form Policies) of the OP, and Policy 3.4.5 analyses the same in Paragraphs [41] and [42] and footnotes 19, 20 and 21, but a perusal of the Decision makes it evident that Policy 4.1.5 dominated the discussions regarding the OP, relegating other Policies to the background.

It is also important to note that the Request does not specifically refer to any other Policies, which received as much attention, as Policy 4.1.5, which confirms that the latter received maximal attention from an evidence perspective. As a result, I find that the references to the “OP” as the “main test”, do not constitute adequate grounds under Section 31 of the Rules to set aside the Decision.

76Issue 4- Did the Member commit an error by failing to make a mandatory determination on Provincial Policy, and Plans

The issue of making mandatory determinations has already been addressed in great detail earlier in Paragraph [69] of this Review Request Decision- to reiterate, my finding is that the lack of an explicit finding on the relationship between the requested variances, and Section 3 of the OP, does not constitute a reviewable error.

It is also important to address the reliance by the Requestors on the Review Request on a different, Decision, “written by the same Panel Member”, whose Decision is under review here. From what I understand of the excerpted material in the Decision, respecting a different property made by the same Adjudicator, whose Decision is being reviewed here, is as follows:

I find they were too general to offer much guidance for this case, which is to remove an existing house and build a larger one in an established urban area. Because of this, and because the words “consistent with “ and conform to” are general, I do not discuss these policies and I have made no negative or positive findings in respect to them.

As I understand, the above Decision was the subject of a Review Request, which in my opinion, takes the unusual step of specifically naming the Adjudicator in question by name, before making the finding cited above to constitute an “error of law”.

However, Section 3(5) of the Planning Act, recited below, states the following:

Policy statements and provincial plans

3(5) A decision of the council of a municipality, a local board, a planning board, a minister of the Crown and a ministry, board, commission or agency of the government, including the Tribunal, in respect of the exercise of any authority that affects a planning matter,

(a) shall be consistent with the policy statements issued under subsection (1) that are in effect on the date of the decision; and

(b) shall conform with the provincial plans that are in effect on that date, or shall not conflict with them, as the case may be

The underlined portion of Section 3(5) makes it clear that any decision issued by this Tribunal, shall either conform with the Provincial Plan, or not conflict with them ( my emphasis).

In the Appeal respecting 160 Teddington before me, the Decision states clearly that “no negative or positive findings”, are being made , and then proceeds to analyze the relationship between the variances, and the tests listed under Section 45.1. The fact that the Adjudicator went on to analyze the variances through the prism of Section 45.1, after making no explicit findings with respect to Section 3, results in my finding that the variances do not conflict ( my emphasis) with the higher level Provincial Policies, which is a perfectly reasonable option allowed by Section 3(5) of the Planning Act.

As a result, I am bewildered by the proposition that a decision has erred in law, if it did not make an explicit finding that a variance “conforms with the provincial plans”, when a plain reading of the Section makes it clear that a different finding can be made, as can be seen in this analysis.

77Issue 5- Did the Decision provide inadequate reasons? Did the Member violate the rules of natural justice and procedural fairness by providing insufficient reasons in the Decision

Given my agreement with the following conclusion from the Request, I thought it appropriate to retrace the path taken in the Decision to arrive at the findings it made, from the evidence.

“While it is accepted that a tribunal does not need to refer to every piece

of evidence or set out every finding or conclusion, the “path” taken by the tribunal

must be made apparent”

My understanding of the path taken by the Decision is as follows:

• The Decision did not make an explicit finding on the relationship between the variances and the higher level Provincial Policies, because of the “general nature” of the Policies. However, the Decision went on to analyze the variances on the basis of Section 45.1 of the Planning Act.

• The Decision analyzed the general neighbourhoods chosen by the two planners, and preferred the Appellants’ general neighbourhood, because it better reflected the local residents’ experience of their neighbourhood, including the “chicane”. It then agreed with the “Immediate Context” chosen by the Appellants, on the basis that there were differences between the neighbourhood and the Immediate Context in question.

• The Decision focused on the variance regarding the front yard setback, accepted the Appellant’s evidence that a yellow line, visible in “Figure 4” of the Decision, which pictorially represented the “prevailing” type of front yards. Given the proposal’s protrusion beyond this line representing the “prevailing type”, the Decision found that the variance respecting the front yard setback, did not satisfy Section 4.1.5 of the OP.

• The Decision then focused on variance respecting the FSI. It compared the requested FSI with 6 other approved variances in the Immediate Context , analyzed all of them, and found that that the variance did not respect, nor did it reinforce the prevailing FSI.

• On the issue of cultural heritage, the Adjudicator did not accept the submission of the Applicants that the City of Toronto’s not taking a position could be construed as supporting their position. The Decision focused on how the onus rests with the Applicants, and the “lack of evidence” on the impact of the neighbouring property’s “Heritage status”, because both Expert Witness declined to provide evidence on this heritage matter, by virtue of their not specializing in heritage matters.

• The Decision found that neither the variances respecting the front yard setback, nor the FSI, satisfied the four tests under Section 45.1 of the Planning Act. The Decision found no evidence to demonstrate that other variances, which had not been analyzed in detail, were not interlinked with the variances that were refused, before making the finding to refuse all the variances collectively.

• As a result of the above findings, the Appeal is allowed, and the requested variances are dismissed in their entirety

As can be seen from the above discussion, the path taken by the Adjudicator is clearly illustrated, and is easy to follow. As a consequence, I cannot agree with the suggestion that the path taken by the Decision is not clear.

In their Request, the Applicants allege that “important questions” such as the tests respecting the Zoning By-law, test of appropriate development and test of minor were not analyzed, and that the only test looked at in any level of detail was the test respecting the Official Plan.

Contrary to the above allegations in the Request, I find that there is sufficient and comprehensible reason provided in the Decision about how the two principle variances, respecting the Front Yard, and the FSI respectively, do not satisfy any ( my emphasis) of the tests in Section 45.1- I recite Paragraph [20] of the Decision below, and underline some phrases that I find pertinent.

20I find the proposed projection does not respect and reinforce this neighbourhood character and thus fails the Official Plan and zoning by-law intent tests Because the 7.3 m setback is numerically large and impacts the front wall uniformity, it affects the public realm and therefore I find the impact is unacceptably adverse. This variance is not minor or desirable for the appropriate development of the land and so, the front yard setback variance cannot be granted

As can be seen from the cited paragraph above, the Decision argues that the consequences of the projected protrusion beyond the yellow line in “Figure 4 of the Decision”, reproduced below, are such that neither the tests respecting the OP, nor the Zoning By-law, are satisfied.

Figure 4. Mills pattern of prevailing front yard setbacks

The same paragraph also states that the 7.3 metre setback is “numerically large”, “impacts the front wall stability”, and “affects the public realm”. The expressions “numerically large” alludes to the test of minor, while “affecting the public realm” is clearly pertinent to the test of appropriate development. The finding about “impacts the front wall stability” is pertinent to both the tests of minor, and appropriate development.

My impression of the Applicants’ preference is that there should be separate paragraphs, pertaining to each of the tests, such that the analysis with respect to a given test, and the finding can be compartmentalized into separate sections. The Decision respecting 160 Teddington, takes a different approach, where findings about various tests, are fitted into a single paragraph, on the basis of analysis in the previous paragraphs. I find that while the two approaches may vary in the analysis of the evidence, and the subsequent presentation of findings, there is no loss of clarity in either methodology. As a result, I find that the Request does not set forth grounds under Section 31 of the Rules for the decision to be set aside.

In their Request, the Applicants list the headings provided in the Decision, and discuss how the Decision doesn’t address, in their opinion, the substantive matters, or questions in this Decision.

I find no weight may be assigned to this argument, because there is nothing in the ratio decidendi which states that the headings in a decision, should off, and by themselves, identify important questions, and/or present the findings of a decision- a Decision should not be judged on the basis of its paragraph headings, any more than a book being judged on its cover.

It is important to emphasize that the Requests raises questions about “judicial notice” with respect to the issue of “cultural heritage”, while the Decision said that it could not make the findings urged upon the Adjudicator by the Applicants, because the latter did not fulfill their onus with respect to evidence, which is a different argument with no nexus whatsoever to judicial notice- the Decision speaks to the lack of evidence, and the Applicants not fulfilling their onus, whereas the Request speaks to the inappropriateness of judicial notice. It is clear to me that submissions were made with respect to cultural heritage, and no evidence was obtained on this matter. Given that submissions cannot substitute for evidence, and that there was no evidence offered regarding cultural heritage, I cannot find a nexus between the Decision’s reasoning, and the Request with respect to cultural heritage.

Consequently, I find that the Decision may be upheld, notwithstanding the arguments raised in the Request regarding “cultural heritage”.

I therefore disagree with the Requestor’s contention that the Decision provided inadequate reasons, and that the rule of natural, and procedural fairness were violated as a result of insufficient reasons, and find that no reviewable error has been committed under Section 31 of the Rules.

78As a result of the reasoning in this Section, I disagree with the five separate issues raised in the Request and find that there are no reviewable errors of fact, or law serious, that warrant a setting aside of the Decision, with respect to Section 31 of the TLAB’s Rules. I however, take this opportunity to commend Mr. Mathew Helfand, Counsel for the Applicants, for the intriguing, and interesting arguments made in the Request.

DECISION AND ORDER

79The Review Request respecting 160 Teddington Park Ave. is not granted, and the Decision respecting this property, released by Member Yao on February 8, 2023, is confirmed.

So orders the Toronto Local Appeal Body

S. Gopikrishna

Panel Member