Wong (Re), 2024 ONTLAB 228

40 Orchard View Blvd, Suite 211 Toronto, Ontario M4R 1B9

Date: 2024-05-17

23 185593 S45 11 TLAB

Wong (Re), 2024 ONTLAB 228

Issuance Date: May 17, 2024

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): C. H. WONG

Applicant(s): A. POWELL

Property Address: 42 ULSTER ST

COA File No.: 23 125465 STE 11 MV (A0286/23TEY)

TLAB Case File No.: 23 185593 S45 11 TLAB

Hearing Date(s): November 27, 2023 & January 18, 2024

Decision Delivered By: TLAB Chair D. Lombardi

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

A. POWELL

Appellant/Owner

C. H. WONG

Party (TLAB)

A. POWELL

Party (TLAB)

D. MEDEIROS

Party (TLAB)

M. REDINGER

M. HELFAND

REVIEW REQUEST NATURE AND RULE COMPLIANCE TO INITIATE

1On July 19, 2023, the City of Toronto (City) Committee of Adjustment (COA) refused one (1) variance to permit the construction of a second-floor deck at the rear of the existing residential dwelling at 42 Ulster Street (subject property).

2Carey Hon-Ho Wong (Requestor), the owner of the subject property, appealed the COA’s decision (Appeal) to the Toronto Local Appeal Body (TLAB) which heard the Appeal matter over two (2) Hearing Days – November 27, 2023, and January 18, 2024.

3Following the hearing event, the presiding TLAB Panel Member, Ted Yao, issued a Final Decision and Order (Decision) on January 30, 2024, refusing the requested variance and confirming the COA’s decision.

4On February 28, 2024, Mr. Wong filed a request for a review (Review Request) of Member Yao's Decision as permitted by Rule 31 of the TLAB’s Rules of Practice and Procedure (Rules).

5Rule 31 (specifically Rules 31. 10 and 31.14) permits a response to a Review Request (Response) and Reply to Response to Review Request (Reply to Response) with requisite due dates for service on Parties and the TLAB.

6Mark Redinger was a Party in the Appeal matter. On March 19, 2024, Matthew Helfand (Aird & Berlis LLP), Mr. Redinger’s legal representative, filed a Response on behalf of Party Redinger, within the requisite timeframe required by the Rules.

7In response, Mr. Wong filed a Reply (Form 27) with the TLAB on April 12, 2024. The filing was received by the TLAB approximately fifteen (15) days after service of the Response on the other Parties and the TLAB.

8As a result, it was marked ‘late’ by TLAB staff and was not uploaded to the AIC website.

9After becoming aware of Mr. Wong’s Reply to Response, Mr. Redinger contacted the TLAB and objected to the ‘late’ submission of the document.

10The matter was brought to the attention of the TLAB Chair, who is tasked by the TLAB’s Rules with the responsibility to undertake review requests. Given the circumstances, the Chair instructed TLAB staff to direct Mr. Wong and advise him to file a Notice of Motion (Form 7) requesting relief from the Rules to permit his Reply to be entered into the record as part of the Review Request filing.

11On April 23, 2024, Mr. Wong filed the requisite Form 7 and the TLAB heard the matter as a Written Motion. On May 8, 2024, the Chair issued a Motion decision denying Mr. Wong’s request for relief.

12Therefore, the only two documents that the TLAB will consider in the Review Request regarding 42 Ulster Street are Mr. Wong’s Notice of Request to Review and Mr. Redinger’s Response to Review Request.

13Mr. Wong’s (Requestor) Review Request seeks a review of Member Yao’s Final Decision on the grounds that 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.

THE LEGISLATIVE AND POLICY FRAMEWORK

Rule 3.0 (After December 2, 2020)

REVIEW OF FINAL DECISION OR FINAL ORDER

A Party may Request a Review

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

Chair May Designate Any Member

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

Review Request does not Operate as a Stay

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

No Motions Except with Leave

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

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

Contents of a Review Request

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

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

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

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

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

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

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

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

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

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

vi. a statement as to the requested remedy.

Review Request not to Exceed 20 Pages

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

Transcripts

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

Administrative Screening

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

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

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

c) it failed to provide the requisite fee.

Response to Review Request

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

Contents of a Response to Review Request

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

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

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

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

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

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

iii. any other applicable authorities and copies thereof; and

iv. a statement as to the remedy requested.

Response to Review Request not to Exceed 20 Pages

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

Responding Party Not to Raise New Issues

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

Reply to Response to Review Request

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

Contents of a Reply to Response to Review Request

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

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

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

Chair Authority

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

Request, the Chair may do the following:

a) seek further written submissions from the Parties;

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

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

Grounds for Review

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

a) acted outside of its jurisdiction;

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

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

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

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

No Further Review Permitted

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

CONSIDERATION AND COMMENTARY

14Rule 31 of the TLAB’s Rules sets out specific requirements regarding the form and content of the submitted materials in support of a Review Request and has been structured to facilitate findings with respect to Rule 31.17 (‘Grounds for Review’).

15These grounds are the only basis upon which an Appeal decision may be set aside, and the remedies outlined in Rule 31.16 considered.

16Rule 31.16 permits the Reviewer to consider only the following three (3) remedies:

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.

17In his Review Request, the Requestor asks the TLAB “…to accept my appeal and grant the approval for the construction of a second storey deck/patio at 42 Ulster Street.”¹ (my emphasis)

18In this regard, as stated above, I am obliged to address what the Requestor is asking of the Reviewer as outlined in the Review Request

19It is evident from the wording in the above underlined and italicized request that Mr. Wong appears to have misunderstood the purpose of the Review Request Rule. Under Rule 31.16, the only three remedies available to the Reviewer for consideration in undertaking a review of a final decision and order are:

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.

20None of the remedies allows the Reviewer, 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, to “…grant the approval for the construction of the deck” being sought by Mr. Wong.

21On this basis and after having reviewed his Review Request submission, I am not convinced that Mr. Wong has a clear understanding of Rule 31 and its function and that he has misunderstood the purpose of a Review Request under the TLAB’s Rules.

22As a result, this gives me little comfort that the Review Request can succeed.

23Nevertheless, I will venture to deduce that what Mr. Wong is asking of the TLAB is that it find the grounds and evidence in his Review Request compelling and that the Reviewer invoke 31.16 c), which requires the TLAB to “cancel the Final Decision…with reasons, and, where appropriate, direct a de novo Oral Hearing before a different TLAB Member.”²

24Before commencing the review of the grounds asserted in the Review Request, it is helpful to provide a reminder of the purpose and parameters of Rule 31. These comments are general propositions to be kept in mind by the reviewer in consideration of any Review.

A Review Request is not afforded as an opportunity to re-litigate or reargue a point that was made but not favourably received in the Decision affecting a Party.
Fundamental to assessing the assertions made in the Request is the need to give the decision a fair and liberal interpretation and construction consistent with its role but tested against the defined, eligible grounds for reconsideration.
In writing a decision, a TLAB Member must consider opinion and evidence, and decide what weight to ascribe to each, in coming to his or her conclusions.
The Decision must provide its basis for coming to the conclusion it did, but it does not require an acknowledgement and repudiation (or concurrence with) of every argument made, and not received as desired, by the requesting party.
The Grounds for Review mandated under TLAB Rule 31 set a consequential standard for findings, that the reasons and evidence are compelling, and specifically Rule 31.17 c) that an error of law or fact has been made which would likely have resulted in a different decision or order.
The task of the Reviewer is not to assess the “correctness” of the Decision, nor to take into consideration what another Adjudicator may or may not have decided having been presented with the same evidence in this case. The task is to establish whether there are arguable, definable errors, and, as well, whether they are of a nature (i.e., are of such significance) that could meet the threshold established in Rule 31.17.
The basis for a decision must be understood and, preferably, written in plain English. A Decision must reflect a suitable basis for its conclusions, considering relevant considerations and applying the law and policy germane to the TLAB’s mandate, including its own deliberations.

25It is incumbent on the presiding Member who heard the appeal to listen to the evidence and make decisions based on the application of law, policy, evidence, and the public interest.

26A Member’s decision is based on that Member’s discretionary perception of the evidence and relevant considerations.

27It is with these considerations in mind that I have read and reread the Member’s Final Decision and Order, the Review Request, the submissions filed in this matter as to the main TLAB hearing events, and the Digital Audio Recording (DAR) of the Hearing days.

28The Review Request filing consists of two (2) documents: the Notice of Request to Review outlining the grounds; and an accompanying MV Sketch/Engineering Package containing various drawings, documents, and photo evidence related to the variance appeal that was before the TLAB.

29Again, I must note that it appears Mr. Wong has either misunderstood or disregarded the submission requirements under Rule 31 as to the contents of a Review Request.

30Rule 31.6 (Contents of A Review), which is cited above in this decision under the heading “The Legislative and Policy Framework,” specifically lists the contents required by the TLAB of a Review Request: a table of contents, an overview of the Review Request of no more than 2 pages, and a concise written argument contained in numbered paragraphs.

31The Review Request filed by Mr. Wong does not follow this prescribed requirement in any way. His filing is disjointed and rambling, and the attachment includes evidence intended to reinforce the testimony and evidence he provided at the Hearings.

32In its totality, the Review Request filing appears to be an attempt by Mr. Wong to relitigate the appeal heard by Member Yao. However, a Review Request is not afforded as an opportunity to re-litigate or reargue a point that was made but not favourably received in the Decision affecting a Party.

Review Request Grounds

33It is important that the reviewer applies the language of Rule 31 and does not enter into a set of considerations that depart from the responsibilities of a Review.

34A Review is not, as above stated, a re-hearing of the matter to consider whether the review might have come to a different conclusion. It is also not an invitation to simply challenge a decision with which one disagrees.

35On the contrary, it is a canvass as to whether any of the statutory grounds afforded a review under the Statutory Powers Procedure Act (SPPA) are established.

36The TLAB Rules clearly envisage that there must be a demonstrable error in the categories identified that warrants relief of the variety and to the standards provided for in Rule 31.

37Having regard specifically to Rule 31.17, above, the Request cites as a basis for consideration all of the grounds under that Rule:

“31.17 a) acted outside of its jurisdiction:”

“31.17 b) violated the rules of natural justice and procedural fairness.”

“31.17 c) made an error of law or fact which would likely have resulted in a different Final Decision or Order.”

“31.17 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.”

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

38This standard implies that the Reviewer must not only be apprised by the Review Request of a violation of the rules of natural justice and procedural fairness and a clear error of law or factual matter of significance but also be satisfied that if an error occurred, it would likely have led to a different decision. This is a high bar to prove.

39I will address each of the Review Requestor’s alleged grounds in the order they appear under Rule 31.17, cited above.

Acted Outside of its Jurisdiction

40The Review Request asserts that Member Yao acted outside of the TLAB’s jurisdiction by not accepting Mr. Wong’s position that the encroachment of the proposed deck should have been considered as “a legal nonconforming” situation and his variance “should not have been viewed as an additional request.”³

41In its review of the original COA application filed by Mr. Wong, the City determined that in order to construct the proposed rear second storey deck, the applicant required approval for the following variance:

Chapter 10.5.40.60.(1)(D), By-law 569-2013

A platform without main walls, attached to or less than 0.3 m from a building, with a floor higher than the first floor of the building above established grade may encroach into the required rear yard setback 1.5 m if it is no closer to a side lot line than 0 m.

The rear second storey deck will encroach 5.11 m into the required rear yard setback and will be located 0.11 m from the side (east) lot line and 0.6 m from the side (west) lot line.

42In his Decision, Member Yao properly identified the variance being sought; he stated that the variance must comply with s. 45(1) of the Planning Act and applicable case law, and that it satisfies all four tests, cumulatively and individually (Paragraph [6] in the Decision).

43He also stated that there is no right to a variance and the obligation was on Mr. Wong to demonstrate to the decision-maker that the tests were met on the balance of probabilities (Paragraph [7] of the Decision).

44The presiding Panel Member heard from the Parties, assessed all of the evidence against the requisite four statutory planning tests, and dismissed Mr. Wong’s appeal.

45I find that Member Yao’s Decision to deny the Requestor’s variance application was entirely within the TLAB’s jurisdiction and that the decision-maker made no finding that was outside of the Tribunal’s statutory grant of authority.

Violated the Rules of Natural Justice and Procedural Fairness

46Mr. Wong takes issue with Member Yao’s ruling at the Hearing to deny his Motion to exclude evidence (Ms. Laroque’s Response to Expert Witness Statement) which Mr. Wong argues was filed “…over 5 hours later than the deadline of November 6, 2023.”

47This appears to be a technicality that Mr. Wong wants to assert as a violation of the rules of procedural fairness. I see no violation or impingement of procedural fairness.

48On the contrary, I agree with Mr. Helfand’s submission, in the Response to Review Request (in paragraph 11), that Mr. Wong’s claim in this regard is rather “ironic” given that he sought relief from the TLAB to allow a document (his Reply to Response to Review Request) to be permitted 15 days past the filing due date.

49Member Yao heard the Motion and refused it, which is his prerogative as the presiding Panel Member. I find no violation of natural justice or procedural fairness in this regard.

50Mr. Wong also takes issue with the manner in which Ms. Laroque provided answers under cross-examination during the Hearing, asserting that “she did not answer them “yes” or “no”; rather, she embellished and added her own colour to the responses.”⁴

51Ms. Laroque, who was qualified by the presiding Panel Member as an expert to provide opinion evidence in the area of land use planning, is entitled, and I would suggest, obligated to expound on her answers where appropriate and within the latitude allowed by the presiding Member.

52I disagree with Mr. Wong’s allegation in his Review Request that “…Mr. Yao allowed Ms. Laroque to respond in a way that went against expected court behaviour” (my emphasis) and that “this behaviour…was severely detrimental to my case.”

53Mr. Wong did not provide a transcript (as required if he was to rely on testimony) of instances where this occurred. This is simply a broad accusation, which is unsubstantiated. It is not for me to seek through the record to find substantiation of Mr. Wong’s assertion, although I will comment that in my look at the DAR recording of the Hearings, I saw no behaviour that would fit Mr. Wong’s characterization.

54Member Yao dealt with the matter in the Hearing and made a determination that was fair to all Parties. More importantly, these are not grounds for the Reviewer to grant a review Request if established.

Made an Error of Law or Fact Which Would Likely Have Resulted in a Different Final Decision

55Mr. Wong highlights a series of what he characterizes as “errors” made by Member Yao in the Final Decision. The information he highlights in his Review Request appears to include evidence heard by the presiding Panel Member which Mr. Wong asks the TLAB to re-weigh and draw different conclusions than the ones reached by Member Yao.

56Moreover, not only does Mr. Wong include statements that appear ambiguous, but he also includes information that is extraneous to the matter at hand.

57For example, he states the following on page 7 of the Review Request, “…one should consider that if the subject land was longer, a minor variance would not be necessary, and this deck/patio could have been built as-is.”

58This statement is irrelevant to the Reviewer’s consideration in assessing a Review Request and adds nothing to whether the decision-maker made an error in law or fact which would have resulted in a different decision.

59In fact, I find that Mr. Wong’s Review Request fails to articulate or establish any error of law or fact whatsoever, let alone an error which would have led Member Yao to a different outcome.

Was Deprived of New Evidence Which Was Not Available at the Time of the Hearing

60In his Review Request, Mr. Wong refers to a letter of support he received on January 17, 2024, from the local City Councillor, Diane Saxe. The date of this letter suggests it was received one day before the scheduled second Hearing Day in the Appeal matter.

61I fail to see the relevance of this document in supporting Mr. Wong’s assertion that this was new evidence which was not available at the time of the Hearing given that Mr. Wong acknowledges that he “…did not submit (it) as evidence since it came after the TLAB evidence submission deadline.”⁵

62He also references a ‘City Staff Report’ and a list of some sixteen (16) signatures from neighbours in proximity to his property, which he included in his attachment document to the Review Request. With regard to the latter, he argues that these signatures are evidence of the “…overwhelming neighbourhood support for my application.”

63For accuracy, the ‘City Staff Report’ that Mr. Wong refers to is not a formal report but an email from an Assistant Planner in Community Planning to the COA commenting on various applications in several Wards in Toronto. It does identify 42 Ulster St. as one of the applications that was reviewed and the author states that the applications identified are “…acceptable without a report on our end.”

64I note that Mr. Wong does not confirm whether he attempted to bring the list of signatures or the Staff Report to the attention of the presiding Panel Member or to have those documents entered into the record at the Hearings, and Member Yao makes no mention of either in his Final Decision.

65The Member presiding at the Hearing made appropriate concessions for all the Parties. It is, however, not the duty of the adjudicator to perfect the case of any of the Parties and it remains the burden of the Appellant (Mr. Wong) to satisfy the TLAB that the four tests have been met.

66I also do not find that if made available, the document would likely have resulted in Member Yao arriving at a different decision. None of “new” information has any influence on the facts underlying Member Yao’s decision.

67Furthermore, I have an issue with Mr. Wong seeking a letter of support from his local Councillor for his application during an ongoing appeal matter and after the first Hearing has been completed. City Councillors are instructed to maintain an arms-length distance from the TLAB as it is an independent administrative tribunal, mandated under provincial legislation. This protocol is specifically in place to guard against Councillors’ influence over matters at the Tribunal.

68If the letter in question had been obtained by the applicant and introduced at the COA hearing, it would likely have become part of the record and would have been part of the file transferred to the TLAB on an appeal.

69However, this was not the case. In his Response to Review Request, Mr. Helfand asserts that Mr. Wong attempted to introduce the Councillor’s letter on Hearing Day 2 and contrary to Mr. Wong’s assertion, it was, in effect, available at the time of the Hearing.

70Furthermore, the letter in question is addressed to the ‘Committee of Adjustment’ and appears to relate specifically to the COA application that the Committee refused on July 19, 2023.

71Therefore, not only do I find that the letter has no relevance to the proceeding, but I also find it to be consistent with Mr. Wong’s attempt to relitigate the application that was refused by the TLAB, which is not the purpose of a Review Request.

72As to the relevance of Mr. Wong’s assertion that since Mr. Redinger no longer resides at 40 Ulster Street and therefore, “…his objection to my proposal based on his personal preference should be minimized,”⁶ I find this fact to be inconsequential. Mr. Redinger was a resident at the time of the appeal and elected Party status in the matter. The validity of evidence on Mr. Redinger’s behalf is not diminished.

Heard False or Misleading Evidence

73Mr. Wong alleges that Ms. Laroque, Party Redinger’s expert planning witness, “intentionally” (his term) submitted old photos from Google Maps in order to obfuscate the facts regarding an existing second-storey deck at 24 Ulster Street.

74Mr. Wong includes photos of the deck in question in the attached document to his Review Request (on page 25) in support of his claim.

75This is an unfair allegation given that I find that Mr. Wong has failed to demonstrate that Ms. Laroque presented any false or misleading photo evidence during the Hearings.

76Moreover, Mr. Wong had ample opportunity to cross-examine Ms. Laroque and test the evidence in this regard, and if there had been any question regarding the introduction by Ms. Laroque of false or misleading, that would likely have been uncovered by the presiding Member at that time.

77It is disingenuous for Mr. Wong to have raised this allegation now and I find that this is, again, simply another attempt by him to relitigate the Appeal of a final decision that he does not like or agree with.

CONCLUSION

78I have reviewed the Final Decision as a whole and considered it in the context of decision-making by the TLAB.

79The Reviewer is to give deference to the factual findings of the presiding Member and where the original decision maker has provided replicable and reasonable grounds for the evidentiary findings, absent any of the identifiable constraints in the Rules, I am to support the Decision.

80Rule 31.17 of the TLAB’s Rules requires the reasons and evidence provided in the Review Request to be ‘compelling’ and must meet the test for an administrative tribunal as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov.⁷

81In identifying similar (although not identical) language in the rules of the former Ontario Municipal Board (OMB), now the Ontario Land Tribunal, the Board held that a compelling case is one that is “so attractive as to be overpowering and irresistible” which leads the Tribunal to conclude that it is constrained from considering any other path and it has no option but to grant the review relief sought.

82I find that the Review Request has not provided such compelling reasons which demonstrate that the TLAB violated natural justice or exceeded its jurisdiction in this matter, made errors of law or fact with respect to requiring a documented rationale, was deprived of new evidence, or heard false or misleading evidence from a Person, which was only discovered after the Hearing.

83I find that the presiding Member considered the opinion evidence of both of the land use planning experts and reached a reasonable outcome. I find no flaw in the reasoning, or the decision delivered.

84However, even if I had found that the Review Request made an error of law with respect to the assertions alleged in the Review Request, the Requestor has not provided sufficient reasons or evidence to show that the errors would likely have resulted in a different Final Decision, resulting in the approval of the requested variances.

85Therefore, in the matter of the Review Request in question, I find that there are insufficient grounds established under Rule 31.17 a) through e) to grant the remedy or remedies permitted under Rule 31.16 c); that is, “to cancel the Final Decision or final order, with reasons, and where appropriate, direct a de novo Oral Hearing before a different TLAB Member.”

‘Obiter’ Comments

86I would be remiss if I did not comment on and admonish Mr. Wong for the inferences, he made regarding the TLAB in the ‘Conclusion’ section at the end of his Review Request.

87The paragraph in question is replicated in the excerpt below:

“I have no backing of a giant corporation, nor do I have any political influence. I only stretch my ability and knowledge to do the needful research diligently in order to prove my case and build a better home for my future family. In this context, the application is a question of fairness. It is about whether we should allow selfish/richer people (sic) shut the rest of us out of a simple chance to improve our dwelling in the name of NIMBYism.”

88The inference by Mr. Wong that corporate interests and political influences somehow play any part in the appeal process at the TLAB and shape a Member’s decision is both problematic and unacceptable.

89The very premise of the TLAB is to be a forum for the objective, unbiased consideration of appeals within its jurisdiction. The insinuation regarding the integrity of its Members is offensive. In the appeal in question, the presiding Panel Member, in making his decision, preferred Ms. Laroque’s evidence based on the failure of the Appellant to prove that the Application satisfied the tests set out in the Planning Act.

90I also agree with Mr. Helfand that much of the sentiment expressed by Mr. Wong in his Review Request is aimed at his neighbour, Mr. Redinger, who I find participated in the TLAB process in good faith. Mr. Wong’s comments in this regard are inappropriate and self-centredly disrespectful of his neighbours’ rights to engage in the land use planning appeal process.

91Moreover, the review request option within the TLAB’s Rules is not an avenue for a disgruntled party who is simply unwilling to accept a result that they do not like to express negative and specious comments about their neighbours.

92I must remind Mr. Wong that his application was heard and refused by the COA first and then, appealed to the TLAB, which also refused to authorize the requested variance. Therefore, the submission of a Review Request under Rule 31 of the TLAB’s Rules constitutes what I would suggest is a “third kick at the can.”

93I would challenge any Party or Participant at the TLAB to characterize that as being an ‘unfair’ process.

DECISION AND ORDER

94The Review Request is refused, and the Final Decision and Order of Member Yao, dated January 30, 2024, is confirmed.

D. Lombardi

Panel Member

Footnotes

Mr. Wong’s Review Request dated February 28, 2024, last page.
TLAB’s Rules of Practice and Procedure (as amended Dec. 2, 2020), p. 44.
Mr. Wong’s Review Request, dated February 28, 2024, p. 10.
Mr. Wong’s Notice of Review Request, dated February 28, 2024, p. 10.
Mr. Wong’s Review Request, dated February 28, 2024, p. 11.
Mr. Wong’s Review Request, dated February 28, 2024, p. 11.
(SCC, 2019) para. 102-103