Martin Rendl Associates (Re), 2024 ONTLAB 237

Toronto Local Appeal Body

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

Date: 2024-07-23

23 175503 S53 12 TLAB 23 175506 S45 12 TLAB 23 175507 S45 12 TLAB

Martin Rendl Associates (Re), 2024 ONTLAB 237

REVIEW REQUEST DECISION

Issuance Date: July 23, 2024

PROCEEDING COMMENCED UNDER Section 53, subsection 53(19), Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")

Appellant(s): MARTIN RENDL ASSOCIATES

Applicant(s): MARTIN RENDL ASSOCIATES

Property Address: 9 ELLSWORTH AVE

COA File No.: 23 109981 STE 12 CO (B0014/23TEY) 23 109986 STE 12 MV (A0175/23TEY) 23 109987 STE 12 MV (A0174/23TEY)

TLAB Case File No.: 23 175503 S53 12 TLAB 23 175506 S45 12 TLAB 23 175507 S45 12 TLAB

Hearing Date(s): November 13, 2023, January 11, 2024

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By: TLAB Chair D. Lombardi

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant/Appellant

MARTIN RENDL ASSOCIATES

DAVIES HOWE LLP – M. MCDERMID

Participant

B. G. MCDONALD

Participant

P. S. JENKINS

Participant

M. KRUK

REVIEW REQUEST NATURE AND RULE COMPLIANCE TO INITIATE

1On June 28, 2023, the City of Toronto (City) Committee of Adjustment (COA) refused applications to obtain consent to sever the property municipally known as 9 Ellsworth Avenue (subject property) into two (2) undersized residential lots, with associated variances to permit the construction of a new three-storey detached dwelling on the conveyed lot¹ fronting Hocken Avenue and maintaining the existing two-storey semi-detached dwelling on the retained lot fronting Ellsworth Avenue (Applications).

2Martin Rendl (Applicant), Martin Rendl Associates, appealed the COA’s decision to the Toronto Local Appeal Body (TLAB) on behalf of Eric Szonyi and Ruth Givertz (Appellants), the owners of the subject property. The TLAB heard the Appeal matter over two (2) Hearing Days – November 13, 2023, and January 11, 2024 (Proceedings).

3Following the Proceedings, TLAB Panel Member T. Yao (TLAB Member), issued a Final Decision and Order (Decision) on February 27, 2024, refusing the applications and confirming the COA’s June 28th decision.

4On March 28, 2024, Ms. Meaghan McDermid (Requestor), Davies Howe LLP, filed a request on behalf of the Appellants for a review (Review Request) of the TLAB Member’s Decision, as permitted by Rule 31 of the TLAB’s Rules of Practice and Procedure. (Rules)

5Ms. McDermid’s Review Request submission consisted of some seven-hundred-and-seventy-five (775) pages, including an Affidavit from Martin Rendl, the expert planning witness retained by the Appellants in the Appeal matter.

6An administrative screening was completed by TLAB staff, and the Review Request was deemed to be compliant.

7Given that there were no other Persons who elected Parties status in this Appeal matter, there was no submission of a Response to Review Request filed with the TLAB, as permitted by Rule 31 of the Tribunal’s Rules.

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.

CONSIDERATION AND COMMENTARY

8Rule 31 of the TLAB’s Rules sets out specific requirements regarding the form and content of the submitted materials in support of a Request for Review and has been structured to facilitate findings with respect to Rule 31.17 ‘Grounds for Review’.

9These grounds are the only basis upon which an Appeal Decision may be set aside, and a new Hearing ordered.

10Before commencing a Review of the grounds asserted in the Request, a reminder of the purpose and parameters of Rule 31 is helpful. These comments are general propositions to be kept in mind 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, 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.

11I note that it is incumbent on the presiding Member who heard the matter to listen to the evidence and make decisions based on the application of law, policy, evidence, and the public interest. Nevertheless, a Member’s decision is based on that Member’s discretionary perception of the evidence and relevant considerations.

12It is with these considerations in mind that I’ve read and reread the Member’s Final Decision and Order and the Request itself.

13I have also reviewed the submissions filed in this matter as to the TLAB Appeal matter, Member Yao’s February 27, 2024, Final Decision, and the Digital Audio Recordings (DAR) of the two completed Hearing days, above referenced.

14Furthermore, I have also reviewed the Review Request submissions filed by Ms. McDermid with the TLAB, consisting of some seven hundred and seventy-five (775) pages and twenty-three (23) Tabs, including an Overview of the Review Request, as well as authorities in the form of ten (10) cases² which the Requestor provided for guidance.

Review Request Grounds

15Counsel for the Appellants is seeking a Review of Member Yao’s Decision on a multitude of grounds comprehended by Rule 31.17. As Counsel has prepared a summary of the Review Request, which is comprehensive and written with clarity, I will, here, simply transcribe into the decision the full text of that summary so that the grounds and the requested remedy are fully set out herein.

16In the ‘Overview of Review Request’, the Requestor sets out the basis for the Request pursuant to Rule 31.17 (b) and (c) and the rationale as to why the Owners ask the Member’s Final Decision be reviewed:

“This Review Request is filed pursuant to Rule 31 of the TLAB Rules of Practice and Procedure (the “Rules”) and section 21.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”). The grounds for review are derived from Rules 31.17(b) and (c).

Regarding Rule 31.17(b), the TLAB violated rules of natural justice and procedural fairness by:

a) allowing Participants to cross-examine the Appellants’ expert witnesses in contravention of Rule 13.8(a); and

b) relying on evidence that was not filed by any Party or Participant, to which the Appellants and their expert witnesses had no ability to review or respond.

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

a) incorrectly interpreting policy 4.1.9 of the Official Plan (error of law);

b) incorrectly interpreting policy 4.1.5 of the Official Plan (error of law);

c) incorrectly interpreting the intent and purpose of the City’s Comprehensive Zoning By-law 569-2013 (the “By-law”) (error of law);

d) failing to properly consider and apply Provincial policies in the Provincial Policy Statement, 2020 (“PPS”) and A Place to Grow: Growth Plan for the Greater Golden Horseshoe, Office Consolidation 2020 (“Growth Plan”) (error of law); and e) incorrectly interpreting policy 3.2.1 of the Official Plan and stated City policy objectives (error of law and fact).”

17In this regard, the full consideration must be stated and applied which is as follows: namely, whether the Member:

“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.” (emphasis added)

18This 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 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.

19Rule 31.16 of the TLAB’s Rules outlines, by authority, the only three (3) remedies available to the Reviewer following the completion of the Review Request:

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 Member.³

20Counsel requests the following remedy and/or remedies:

“This Request has demonstrated that the Hearing was conducted and the Decision was rendered in a manner that was procedurally unfair. Further, it has demonstrated that each of the primary findings in the Decision which led to the refusal of the Applications was founded on errors of law and/or fact, which, had they not been made, would likely have resulted in a different outcome and decision. For these reasons, the Decision ought not to stand.

The Appellants therefore make the following requests:

a) That the Review Request be granted;

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

c) That relief be granted, if necessary, from the page limit in Rule 31.7 to allow an additional 2 pages to be included as part of this Review Request, to allow the Appellants to fully present their request in sufficient detail; and

d) That the TLAB issue a new decision allowing the Appeals and approving the Applications by granting the provisional Consent subject to the conditions recommended by Mr. Rendl and approving the Variances, both as set out in Appendix C to his Witness Statement.

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

21As an administrative matter, let me first address remedies c) and d) cited in the Review Request, above, as both require rulings from the Reviewer before the TLAB can proceed to assess the remaining remedies sought by the Appellants.

Consideration to Allow Additional Pages as Part of the Review Request

22Under the heading – ‘Requested Remedy’, on page 21 in the Review Request, the Appellants seek relief from the page limit set out in the TLAB’s Rules, as outlined specifically in the following Rule 31.7:

31.7 Excluding supplemental documents including the table of contents, excerpts from by-laws, exhibits and other supporting Documents, which shall not exceed 100 pages in length, the Review Request shall not exceed 20 pages, double-spaced, and written in twelve-point font. Case law and transcripts are not limited”

23The Requestor seeks relief from Rule 31.7 to allow two (2) additional pages to be included as part of the Review Request, to allow the Appellants “…to fully present their request in sufficient detail.”⁴

24It is important to note that the current iteration of the Tribunal’s Rules (as amended on December 2, 2020) followed two previous iterations and extensive discussion and review by TLAB Members.

25Furthermore, amendments to Rule 31 of the TLAB’s Rules occurred separately, after December 2, 2020, following the work and subsequent recommendations put forward by a subcommittee, consisting of a subset of Tribunal Members constituted by the Tribunal.

26As part of the recommendations brought forward and adopted by the Membership, the TLAB amended Rule 31.7 by setting a limitation on the size of the Review Request document, to a maximum of no more than 20 pages, except for supplemental materials as outlined in the Rule.

27The TLAB’s Rules are important to the fair and transparent hearing of an appeal before the Tribunal, and upholding its Rules is paramount to Members. They also allow the Rules to be “liberally interpreted” with substantial compliance with the requirements being sufficient and permit the Tribunal to “grant all necessary exceptions to the Rules, or grant other relief as it considers appropriate…to effectively and completely adjudicate matters before it.”

28Based on a general reading of the Rules, and given that there are no other Parties, I find no prejudice in the Appellants’ request and will allow Ms. McDermid’s 22-page long document into the record for the purposes of this Review Request.

Consideration of the Alternative Disposition to Vary the Member’s Decision

29Concerning remedy d), above, while I acknowledge that it is open to the Review Panel to direct a ‘de novo’ hearing of the appeals before a different Tribunal Member (see (e) above), the Requestor exhorts an alternative disposition, essentially asking that the TLAB ‘vary’ the Decision to allow the appeals and grant the consent and variance relief requested, on the conditions as recommended by the Appellant’s planning witness, Mr. Rendl.

30In support of this alternative disposition, the Requestor directs the Review Panel to Sections 2, 21.2(1), and 25.0.1, specifically, of the Statutory Powers Procedure Act (SPPA), which, on a review of a decision, allows the tribunal to “confirm, vary (my emphasis), suspend or cancel the decision or order (emphasis added).”

31The Requestor does so even though he specifically notes in paragraph 75 of the Review Request that “…while issuing a new decision on the merits of the Appeals is not specifically referenced in Rule 31.16(c) (my underline), it is well within the TLAB’s jurisdiction to do so and appropriate under the circumstances.”⁵

32To support his position, the Requestor cites a 2022 TLAB Review Request decision for 14 Faith Avenue, as precedent for the remedy sought.

33In arguing for this alternative disposition, the Requestor submits that the Review Request and its enclosures contain sufficient evidence upon which the Review Panel can make determinations on each of the statutory tests.

34Furthermore, the Review Request argues that requiring the Appellants to attend before another TLAB Member to relitigate the matter would not secure the most just, expeditious and cost-effective determination of the Appeals.

35It is important to note that Rule 31 of the TLAB’s Rules has been the subject of much debate amongst the Membership and the Rule has been amended, most recently, in 2020.

36A working group consisting of four (4) TLAB Members drafted and brought forward a revised Rule 31 to the December 2, 2020, Business Meeting which, in part, proposed the elimination of the remedy to: “c) vary or suspend the Final Decision or final order, with reasons,” available to Tribunal Member in the previous iterations of Rule 31.

37Following much discussion at that December 2nd Business Meeting, the TLAB adopted a Motion to repeal Rule 31 and replace it with the revised wording that eliminated the remedy to “vary or suspend” a final decision or order.⁶

38The basis for this specific revision to the Rule was premised on the principle that a Review Request is not an opportunity to relitigate the appeal matter. Moreover, it is recognized that the Reviewer is not well situated to consider and dispose of the merits of the appeal since he/she neither sat nor heard the testimony and evidence presented at the Hearing as the presiding Panel Member.

39The Requestor submits for the Reviewer’s consideration that the SPPA makes it plain that variance of a decision on a review is contemplated as an authorized action and, therefore, would be permitted by law. She also notes that the TLAB, in 2022, issued a Review Request decision (14 Faith Ave.) that allowed a decision to be varied after Rule 31 had been amended.

40While I acknowledge the above-cited Review Request decision, I do not support this approach for the reasons stated above. I am not prepared to reconsider the remedies available to the Reviewer within Rule 31 (as amended on December 2, 2020) to include the option of “varying” Member Yao’s Decision.

41Therefore, although I will permit the two additional pages in the Review Request, I will not grant the requested ‘alternate’ remedy submitted by the Requestor to vary Member Yao’s Decision and issue a new decision allowing the Appeals and approving the Applications by granting the provisional Consent, subject to conditions.⁷

42Having addressed these two administrative matters, I now turn to each of the Requestor’s alleged grounds in the order that they appear under Rule 31.17, cited above.

Rule 31. 17 (b): Violation of Natural Justice and Procedural Fairness

43The first ground alleged by the Review Request is that the TLAB Member violated the rules of natural justice and procedural fairness in two ways:

a. by allowing the Participants the opportunity to “cross-examine” Mr. Rendl and Mr. Kipping despite Rule 13.8 (a) of the TLAB’s Rules, which states “a Participant…may not: call witnesses and cross-examine witnesses;” and

b. by relying on evidence that was not filed by any Party or Participant in the Hearing or made available to the Appellants or their expert witnesses.

44Concerning the fundamental notion of procedural fairness, the Requestor states the following at paragraph 12 in the Review Request: “Procedural fairness is a foundation of modern Canadian administrative law, requiring public decision makers to act fairly in coming to decisions that affect the rights, privileges or interests of an individual.”⁸

45In addressing the question of procedural fairness, the Court, for example, in Knight v. Indian Head School Division No. 19, found that “The concept of procedural fairness is eminently variable, and its content is to be decided in the specific context of each case.”⁹

46Similarly, in Baker v. Canada (Minister of Citizenship and Immigration, the Court found that the values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have an opportunity to present their case fully and fairly and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.¹⁰

47In the matter at hand, the Requestor asserts that the TLAB Member permitted Participants Jenkins, McDonald, and Kruk to “cross-examine” the expert witnesses in the absence of a specific request by the Participants and contrary to the TLAB’s Rule 13.8 (a), which does not allow a Participant to cross-examine witnesses.

48In doing so, the Requestor argues that the presiding Member “encouraged them to overstep their role in this proceeding” even with objections of Ms. McDermid. The Requestor also asserts that the Member provided no explanation at the Hearing as to “…why it was appropriate to allow a special exemption for the Participants to cross-examine the witnesses …and that the cross-examination of the expert witnesses unnecessarily prolonged the Hearing by approximately two (2) hours.”¹¹

49On this issue, Member Yao was clear in his Decision as to who had elected Participant status. In paragraph [10], he notes that he heard from four witnesses, including Mr. Rendl and the neighbours, Mr. Jenkins, Ms. McDonald, and Ms. Kruk, who he identified as having “…elected to become “participants” as opposed to being “parties”.”¹²

50It is apparent from the above excerpt that Member Yao was alert to the fact that the neighbours he identified had elected “Participant” status. He was also aware that this election of status included certain responsibilities which he proceeded to highlight in paragraph ([11]) in his Decision.

51In that paragraph, which is reproduced below, he confirms the role of Participants within the TLAB’s Rules and, specifically, the ability to cross-examine witnesses:

11Participants cannot call witnesses and although Mr. Jenkins did retain an architect to prepare renderings, he was unable to call her. Rule 13.8 allows participants to ask a “clarifying question” but not to “cross examine”. 4 I permitted everyone to ask questions of Mr. Rendl, over the objections of Ms. McDermid. S. 15 of the Statutory Powers Procedure Act 5 gives a tribunal the general power to admit evidence. A TLAB Rule of Practice and Procedure cannot override an Act of the Province, and in any case Rule 2.12, permits the waiving of Rules where “appropriate” to effectively adjudicate the hearing. 6 I found such permission appropriate.

52This understanding is further supported by testimony during Hearing Day 1 attributed to the various Participants. For example, when allowed by Member Yao to ask questions of the witnesses, Mr. Jenkins specifically acknowledged that as a Participant he was aware that “he had no right to cross-examine the witness.”

53Mr. Jenkins also framed his inquiries to the witnesses as “questions” (Time-stamped 3:53:58 – 3:54:06).

54For context, the TLAB revised its Rule 13.7 – Role of a Participant, in 2022, by amending subrule (c) and adding the term ‘clarifying questions’ to this component of that subrule. In doing so, the TLAB, in Proceedings going forward, allowed Participants to “ask clarifying questions of witnesses, with the approval of the TLAB.”¹³

55There is no direction in 13.7 (c), however, regarding the number of or point in a Hearing when clarifying questions can be asked or the actual duration of the questioning from Participants.

56In this regard, the presiding Panel Member has the sole discretion to make such determinations during the proceedings since they are in the best position to do so.

57In reviewing the DAR recording of this hearing matter during which this issue arose, I note that Ms. McDermid did raise concerns regarding the use of what she characterized as “cross-examination of witnesses by Participants.”

58In response, Mr. Jenkins responded and confirmed that he was aware of his limitations in his role in this regard, assuring the TLAB and Ms. McDermid that he “would not be crossing the line.”

59Following this exchange, Mr. Jenkins confirmed having more questions for the witness” but described them as “two clarifying questions.” (Time-stamped 3:54:16 on Hearing Day 1).

60Both Ms. McDonald and Ms. Kruk also worded their inquiries of the witnesses as “probing” and “questions in a clarifying sense” which Member Yao allowed, as he viewed them as being relevant.

61Upon further objections from Ms. McDermid regarding the type of questioning being pursued by the Participants, Mr. Jenkins reiterated that he had no intention of cross-examining the witness “…because he is not a Party (Time-stamped @ 4:07:00).”

62In the end, Member Yao took the matter under consideration and ultimately ruled that this line of questioning could continue.

63I am prepared to acknowledge that Mr. Jenkins did admit at one point during Hearing Day 1 that the questioning had become “a bit of cross-examination” and the extent of the questioning of the witnesses by the three Participants was somewhat time-consuming.¹⁴

64However, I find this was not determinant in the Decision, given that Member Yao confirmed that “in the end the participants asked very few questions” and he gave this “little weight.”

65With respect to the allegation that the presiding Member relied on extraneous evidence in making his decision, I find that assertion to be somewhat of a ‘stretch.’

66The Requestor states that the Member referred to a consent regarding 84 Ellsworth Avenue, whereas Mr. Rendl only spoke to a description of the variances approved by the COA for that property in his evidence and testimony.

67I could find only one reference to 84 Ellsworth in the Decision in passing, in paragraph [22], where Member Yao stated that it was one of only two properties within Mr. Rendl’s study area to be granted a severance.

68I find this reference by the TLAB Member to be not only relevant but also appropriate and ‘fair game’ in the circumstances given that Mr. Rendl highlighted the same property in his testimony and evidence. Therefore, I find no violation on the Member’s part in doing so.

69I also find Member Yao’s assessment of the issue of the ‘one-foot reserve’ to be appropriate regarding the subject property, and I am not convinced that he largely ignored the evidence of Mr. Rendl in this regard as asserted by the Requestor.

70Member Yao dedicated almost three (3) pages to the discussion regarding the ‘reserve’ issue and I find that he did not disregard Mr. Rendl’s evidence; rather, he disagreed with it, which he has the choice to do as the decision maker.

71In this regard, TLAB Members are guided by Practice Direction No. 6 which the Tribunal adopted on May 26, 2020. That Practice Direction includes a section entitled ‘How Much Weight is Given to Expert?’ which states the following:

“It is always up to the TLAB Member hearing from a qualified expert to decide how much weight he or she is going to accord the evidence.(my underline) Factors that might impact the weight given to an expert’s testimony could be its usefulness or relevance to the issues in dispute, any detected bias, or the evidence’s quality, when compared to the evidence of other witnesses.

Experts are not necessarily accorded “extra” weight simply because they are experts; however, nor is an expert’s evidence simply to be discounted, either. Each Member must turn his or her mind to this issue, with respect to every witness – lay or expert.”¹⁵

72With respect to the assertions made by the Requestor in Paragraph 21, subsections d), e) and f) of the Review Request, I find similarly that Member Yao did not rely on evidence that was not already highlighted by witnesses at the Hearing.

73For example, the Requestor states that Member Yao relied on an “unreferenced “background report.”

74The Requestor submits that there is no identifying information or source referenced in the Decision for a “background report” and this report was not included in the Exhibits.¹⁶

75The Requestor also surmises that since the Decision includes a graphic titled “Excerpt from Changing Lanes, 2018 report to Council,” this could possibly be the source of the referenced “background report.”¹⁷

76In reading the Decision, specifically the section starting at paragraph [48] under the heading – ‘Mr. Rendl failed to include garden suites in his planned context’, Member Yao discusses the City’s recent housing policy initiatives including garden and laneway suites and references the City of Toronto’s Housing Action Plan (HAP) in Footnote 27.

77Member Yao then provides a detailed explanation in the Decision as to why he highlights these recently City-approved built form policy initiatives, citing a comment from Ms. McDonald concerning a garden suite abutting her property (para. [53] in the Decision). In considering garden suites and laneway housing in the context of the Applicant’s request to sever the property, he concludes that “These outcomes can be achieved without severing the property and creating a new lot.”¹⁸

78In attempting to be thorough and comprehensive in his Decision as to the City’s housing intensification efforts, Member Yao included an assessment of not only the two recent Official Plan Amendments (OPAs): 554 (Garden Suites) and 649 multiplexes) discussed by Mr. Rendl in his evidence, but also the other three (I.e.’ OPAs 320, 403, 418) of the sequence of five OPAs refining the City’s Official Plan that take into consideration matters of Provincial interest, which Mr. Rendl did not discuss.

79As the TLAB Member writes in paragraph [56] of the Decision in this regard, “Mr. Rendl was silent about the second and third OPAs, but I have a duty to read all relevant Official Plan Amendments (my emphasis),” as directed by Policy 5.6.1 of the Official Plan.

80Member Yao was perfectly within his rights as the Hearing Officer in the Proceedings to refer to the above-referenced OPAs within the context of the evidence and testimony provided by Mr. Rendl.

81The decision-maker is to come to the matter with an open mind, not an empty one.

82This is supported by the fact that Mr. Rendl, in his Affidavit in support of the Review Request, states that he “…did refer to the presence of laneway housing constructed in my study area as an example of residential intensification and included photos of them.”¹⁹

83I disagree with Mr. Rendl, and the Requestor, that these policies are not relevant to the proposal for the subject property. On the contrary, I find that Member Yao was being thorough in his consideration of the type of development that the Appellants were proposing – a severance and intensification of the subject property.

84This led the TLAB Member to conclude that “Council policy is not in the direction of a new detached house on a new lot, but intensification of existing house forms without new lot creation.”²⁰ Considering the City’s overall housing initiatives as reflected in all of these policy documents led him to the notion that intensification on the subject property could be achieved without severing the property and creating a new lot.

85On the basis of the above, I find no violation of the rules of natural justice or procedural fairness in the presiding Member’s action or his decision.

Rule 31.17(c): Errors of Law and Fact

86In the appeal matter in question, the Requestor alleges the following five (5) instances in which the TLAB made errors of law and fact which would likely have resulted in a different Final Decision.

87The first two errors relate to the allegation of an incorrect Interpretation by the TLAB of Policies 4.1.5 and 4.1.9 of the OP. In my mind, these policies are interrelated, as Policy 4.1.9 establishes alternative development criteria to those in Policy 4.1.5 for infill development.

88Therefore, I will address them together in the following section.

i. Incorrect Interpretation and Application of Policies 4.1.5 and 4.1.9 of the OP

89The Requestor asserts that Member Yao incorrectly interpreted and applied Policies 4.1.5 and 4.1.9 of the Official Plan to the consideration of the applications before the TLAB. The Review Request first addresses errors by the TLAB Member in the interpretation of Policy 4.1.9.

90The Requestor states that the Appellants and Mr. Rendl relied on Policy 4.1.9 of the City’s Official Plan “…as the appropriate policy against which the Applications should be tested.”²¹ This Policy establishes alternative development criteria to those set out in Policy 4.1.5 for infill development on properties that vary from the local pattern.

91The Requestor submits that the TLAB rejected the Appellants’ interpretation of Policy 4.1.9 and that “…in doing so, committed an error of law, which, but for the error, would likely have resulted in a different decision.”²²

92Regarding the interpretation of the Policy, the Requestor, for support, cites the findings by the former Ontario Municipal Board (OMB) in a November 15, 2012, decision that approved a consent and associated variances for the neighbouring property at 7 Ellsworth Avenue.

93Member Yao devotes an entire subsection in his Decision addressing this particular OMB case noting that the “proponents rely on this decision heavily” because of its proximity to the subject property. He also noted that “…although the Appellants opposed the application in 2012…they now have decided to pursue a similar development.”

94He states, appropriately, that “…the law is that the earlier decision is not binding on other tribunal members, including me…in any case, the facts are distinguishable"²³ and provides seven (7) bullet points describing the significant differences between the two cases.

95The Requestor contends that in interpreting the Official Plan, Member Yao ignored the actual words in the text of the preamble for the Development Criteria in Neighbourhoods and instead adopted his own “purposive interpretation.”

96In doing so, the Review Request asserts that while Official Plan policy is to be given broad, liberal purposive interpretation, the presiding Member’s own interpretation cannot be used to override the clear and specific words in the Policy.

97Firstly, I find no use of the term “purposive interpretation” by Member Yao in paragraph [19] as stated by the Requestor nor do I find it anywhere else in the final Decision.

98Secondly, I am satisfied that Member Yao properly interpreted the Official Plan and relevant policies and I find that the Requestor’s parsing of the words of the decision-maker is an attempt to justify the allegation of errors by the TLAB Member and ‘make its case’.

99Thirdly, I disagree that the TLAB Member narrowed the scope of the Policy beyond that which is contemplated in Policy 4.1.9. The Requestor’s argument in this regard is based on Mr. Rendl’s interpretation of the wording of Policy 4.1.9 vis a vis the proposed development which refers to any residential infill development on a property that varies from the local pattern in terms of lot size, configuration and/or orientation.

100Mr. Rendl’s opinion was that the through lots on Ellsworth Avenue are “…unique in the study area and do in fact vary from the prevailing local pattern in terms of their configuration and/or orientation…”²⁴ He cited the 7 Ellsworth Avenue (and 18 Hocken Ave.) OMB decisions in support of his planning opinion that Policy 4.1.9 and its development criteria are more suited to the evaluation of proposed infill development on lots such as the subject property.

101Member Yao addresses Policy 4.1.9 and its relation to the proposed development in the excerpt below, under the subheading – ‘The “infill” argument’ in the Decision:

“The Plan states that non-standard sized lots can still be acceptable if they are the product of “gaps”; that is, “properties that “differ from the prevailing patterns of lot size, configuration and orientation”. The existing property does not differ from the prevailing pattern of lot size, configuration and orientation. It is an existing lot of record that reflects the pattern of its neighbours on Ellsworth Ave.”²⁵

102The TLAB Member concluded that the subject property does not differ from the ‘prevailing’ pattern of lot sizes, configuration and orientation and that it is an existing lot of record that reflects the pattern of its neighbours on Ellsworth Avenue.

103Furthermore, he considered the ‘through lot’ aspect of the subject property from both the Ellsworth Avenue frontage and Hocken Avenue rear lot line perspectives and interpreted the Official Plan differently than Mr. Rendl.

104Member Yao concluded that what the author of the Official Plan was trying to achieve is adapt and reuse oddly shaped or lots that for one reason or other history had left undeveloped. Based on this interpretation, he concluded that the proposal before the TLAB was not that type of situation.

105I find no error of law in the decision-maker's determinations.

106The Requestor then asserts even if it is correct that Policy 4.1.9 does not apply to the subject property, the Decision incorrectly interprets and applies Policy 4.1.5, for the following reasons:

a. it relies only on approved variances or severances within the last 10 years to determine “existing physical character”;

b. it ignores the lot size standard under the By-law and the implications of policy 4.1.8 of the Official Plan; and

c. it interprets the “prevailing” component of the policy to require some numerical threshold to be achieved.

107With respect to the issue of “existing physical character,” the TLAB Member correctly confirms that where Policy 4.1.9 does not apply, the cornerstone Official Plan test for new development in neighbourhoods requires that the applications respect and reinforce the physical character of the neighbourhood. Mr. Rendl agrees.²⁶

108Member Yao also highlights in the Decision the two study areas (larger and immediate context) delineated by Mr. Rendl to assess area character as directed by the Official Plan. The TLAB Member found this ‘Geographic Neighbourhood’ acceptable as a reasonable area for planning analysis.

109Mr. Rendl determined the prevailing physical character of properties in his immediate and broader neighbourhood contexts by completing a contextual assessment of the physical character supplemented by COA decisions from the last 10 years, where he concentrated his attention.²⁷

110Based on these study areas and after fully considering the evidence and testimony of Mr. Rendl, Member Yao concluded that “…severances are not common, at least in the last decade for which we have information.”²⁸

111Commencing at paragraph [25] in the Decision, Member Yao then addressed the Official Plan test of ‘prevailing’ and concluded that “to qualify as “prevailing” would require more than a very small number of comparables.” In the end, he determined that “the analysis provided does not establish that the proposed FSI’s (sic) represent the “prevailing” characteristics or pattern.”

112While I agree with the Requestor’s assertion in paragraph 50 of the Review Request that “the “prevailing” test is not meant to be a strictly numerical analysis and that a contextual analysis is required,” I disagree with the submission that the TLAB Member’s analysis was ‘strictly’ numerical.

113Member Yao considered Mr. Rendl’s contextual analysis of the physical character in the neighbourhood that he provided in testimony and evidence, as well as the supplemental data regarding prior variance decisions. Based on this consideration., he concluded that the variances requested “…do not meet the test of respecting and reinforcing the enumerated physical characteristics in the neighbourhood. I find the two proposed undersized lots with short year yards do not “fit in”…”²⁹

114The Requestor further submits that the Decision errs by focusing only on FSI rather than the full text of policy 4.1.5 (c) which directs the consideration of other assessment criteria such as “prevailing heights, massing, scale, density and dwelling type of nearby residential properties.”

115The Requestor asserts that “the policy indicates that these characteristics are all to be assessed and considered collectively, aligning with the contextual analysis conducted by Mr. Rendl.”³⁰

116I find that Member Yao did, in fact, consider the full text of criterion (c ) of Policy 4.1.5 concerning the variances requested for both lots Part 1 and 2 of the Applications. I find he also correctly assessed those specific aspects of the Policy such as ‘density’, again, relative to the variances being sought.

117Furthermore, I find that he was also alert to the contextual analysis conducted by Mr. Rendl, as supported by the following excerpts from the Decision in which Member Yao directly addresses the COA decision summary provided by the planning witness:

“The overwhelming majority of decisions involve increases in FSI (Floor Space Index or Gross Floor Area divided by the area of the lot) and this is where the proponents’ planner concentrated his attention.”³¹

“While the cornerstone test applies to variances and the “conforms with the Official Plan and adjacent plans of subdivision” test applies to a severance, severances lead to predicable variances, and reading all policies together, unearthing only one real comparable lead me to conclude both the FSI and the severance fail the Official Plan tests in the Planning Act.³²

118The preamble to Official Plan Policy 4.1.5 sets the objectives for development in Neighbourhoods, requiring that development must be sensitive, gradual, and ‘fit’ the existing physical character. The policy requires that development in established neighbourhoods respect and reinforce the existing physical character and identifies criteria for consideration.

119The Requestor, at paragraph 52 in the Review Request, cites Policy 4.1.5 (c) as requiring a full analysis of “the prevailing heights, massing, scale, density and dwelling type of nearby residential properties.” The Requestor asserts the presiding Member failed to fully undertake this analysis.

120Official Plan Policy 4.1.5 (c) establishes that “prevailing” means the most frequently occurring. Mr. Rendl, in his evidence, provided a table and map of properties in the neighbourhood outlining where variances similar to those being proposed have been granted by the COA. He utilizes this as the basis for his evidence that the proposal respects and reinforces the character of the neighbourhood.

121The TLAB has established that Parties who bring forward the details of the decisions made by the COA in the Geographic Neighbourhood, or Immediate Context, as the case may be, need to bear in mind that the decisions usually date back no more than 17 years to 2006.

122It is important to note that this type of information does not represent the quantum of change in the community because the timeframe of seventeen years does not help in understanding whether any change took place before 2006, and how the development/lack thereof shaped the community.

123The concept of “prevailing” in Section 4.1.5, which is key to determining how the proposal respects and reinforces the prevailing physical character, requires that the prevailing type, or prevailing types be determined through a numerical count.

124In reality, the number of properties impacted through COA decisions constitutes a small subset of the properties in the Geographic Neighbourhood, or Immediate Context and the knowledge of changes brought about through COA decisions in a limited time frame may be helpful to understand the general pattern of change, but shed no light on the sum total of change in a community, and cannot fully address the “prevailing” test.

125Mr. Rendl’s planning evidence that the proposed development was compatible with other properties and development located within the context of the subject property. The Requestor, supported by Mr. Rendl’s opinion, was that reducing the Official Plan’s respect and reinforce test to a statistical one that requires a variance to match or replicate the most frequently occurring or prevailing characteristic present in an area conflicts with the core planning principles the Official Plan sets for change in Neighbourhoods.

126At issue is whether that conclusion creates the definitive descriptor of area context to support a finding of policy compliance on issues of ‘fit’, ‘respect and reinforce’, and ‘gradual’, ‘sensitive’ change to the ‘physical character of the neighbourhood’. This analysis requires a detailed consideration of the criteria listed in Policy 4.1.5 of the Official Plan and, of course, section 51(24) of the Planning Act.

127The assessment of the physical character of a neighbourhood does not begin and end with ‘examples’ or ‘ranges’ of statistics within which similarities to a proposal can drawn. While the presence of similar lot sizes and variances is relevant, the policy directive to respect and reinforce the neighbourhood is not, to paraphrase my former TLAB colleague/Chair, Ian Lord, “…a sword to advance examples; rather, it is a shield to protect the investment in the existing lot pattern, built form and identifying characteristics that create the neighbourhood and demonstrate a sense of place.”

128The policy leaning is not to preclude change, but to test it on defined criteria to be considered holistically, without favour or apparent emphasis or priority, which Member Yao did. He found that those policies, above referenced, did not support a proactive basis to advance change, by way of severance and variances, to reinforce smaller lots and FSIs, to advance a definition of conformity.

129The Requestor asserts that Member Yao’s Decision “…speaks only to density (specifically, FSI)…”³³ The measure that is used to represent density in the Zoning By-law is the floor space index (FSI). FSI is a ratio of the gross floor area in relation to the area of the lot.

130Understandably, the public generally focuses on the maximum FSI provision in the Zoning By-law. The test set by OP Policy 4.1.5, however, is not the FSI maximum number set in the By-law, but the prevailing density in the broader and immediate neighbourhood as described by OP Policy 4.1.5. The maximum FSI number in the Zoning By-law serves as the threshold beyond which the requirement for a variance is triggered.

131However, the provisions of the By-law do not work in isolation. The intent and purpose of the FSI maximum, for which there is a variance requested, is to assert an additional level of control beyond that which is provided by the By-law building envelope – height, length, depth, and rear, front, and side yard setbacks.

132The purpose of the FSI maximum in the By-law is to regulate the total amount of development on the site; in the language of the governing Official Plan, the overall proposal should reflect the prevailing density (amongst other features) of the neighbourhood.

133Member Yao concluded that “…the analysis provided does not establish the proposed FSIs represent the “prevailing” character or pattern.”

134Finally, the presiding Member also addressed the variances sought by the Appellants for ‘rear yard setback’ and ‘decks’ for both Parts 1 and 2 in his Decision, and made the following statement: “I find both issues: rear yards and deck “encroachments” are related; and I find the evidence does not sufficiently substantiate meeting the Official Plan test for either characteristic…”³⁴

135At the end of the consideration, the TLAB Member remained in doubt, despite the professional evidence, that essential policy considerations of the Official Plan were met. He found that the Applications entailed a built form and lot pattern change that was inconsistent with the general pattern and physical character of development in the neighbourhood, however it was defined in scale.

136The discussion of other factors such as height is not only unnecessary in a decision but also irrelevant. Discussion of the absence of evidence on these other factors, or Member Yao’s lack of confidence that the Appellants have substantiated that the policy is met, or even that he finds merit in their argument, does not detract from the point that the Member found that the prevailing density was not reflected. It is not incumbent on the decision-maker to rebut the conclusions of the Expert, but, rather, to outline the reasons for refusing the application(s).

137In the case at hand, Member Yao found that the policy in this regard was not met and so came to the conclusion he reached in the Decision. His findings related to ‘density’ are not offset or ameliorated by any consideration of the height, scale, etc. That is sufficient in the circumstances.

138Therefore, based on the above, I do not find that the TLAB incorrectly interpreted or applied either Policy 4.1.5 or 4.1.9 in the Decision.

ii. Incorrect Interpretation of By-law 569-2013

139The Requestor asserts that Member Yao drew inaccurate conclusions in the Decision regarding the intent and purpose of Regulation 5.10.30.20(1) (Regulation) of the Zoning By-law in the absence of any identifiable supporting evidence raised by Mr. Rendl or the Participants.

140He cites for support the following finding from a 2020 Local Planning Appeal Tribunal (LPAT) decision: “An administrative Tribunal’s factual findings may result from an error of law, particularly in circumstances where the Panel Member finds facts in the absence of evidence and fails to consider all of the relevant evidence,”³⁵

141The Regulation states:

10.5.30.20(1) Designated Front Lot Line for Through Lots

Despite regulation 5.10.30.20(2), on a through lot in the Residential zone category, any lot line separating the lot from the street may be selected as the front lot line, if: (A) the lot line is not separated from the street by a 0.3 metre reserve; and (B) the lot line buts a street where an adjacent lot has its front lot line on the same street.

142Mr. Rendl’s evidence was that because the subject property is a ‘through lot’ and abuts more than one street, there is more than one lot line that would meet the definition of the “Front Lot Line” in the Regulation cited above.

143He also suggested that the variances from the sections of this Regulation were “technical or minor” and “of no import.”

144The Requestor submits that this is contrary to the TLAB Member’s interpretation and his conclusion regarding the Regulation expressed in the Decision that “…the intention is clearly to stop the creation of a rear lot that tries to use the reserve lot line as its frontage.”³⁶

145Starting at paragraph [21] in the Decision, Member Yao addresses this matter under a separate subheading ‘Intent of the zoning by-law’. There, he provides an explanation of the Regulation in question and a broad discussion as to why he found that Mr. Rendl failed to make his case in this regard.

146After hearing all of the evidence and considering the Regulation, the TLAB Member concluded that “the end result seems to be that the lot does not have a front lot line…the proponents failed in their obligations to meet the four tests.“³⁷

147Furthermore, he concluded that a variance from these sections (the Regulation) can hardly be considered ‘minor’ since if the owner is unable to select a frontage, other sections of the Zoning By-law preclude the erection of a building on a lot that does not abut a street.

148It was Mr. Rendl’s evidence that the TLAB Member erred in his interpretation of the purpose of the Regulation and a different outcome would have resulted since the City raised no concerns with the presence of the 0.3m reserve and the required variances “…would be moot if and once the consent was approved, since the Subject Property would no longer be a Through Lot.”³⁸

149I respectfully disagree.

150Based on a review of the Decision, I must conclude that Member Yao interpreted the intent and purpose of the language of the Regulation as it relates to the subject variances properly whereas Mr. Rendl’s evidence, as suggested by the language highlighted in the quote above, was based on a ‘presumption’ that a severance of the subject property would be granted.

151Such a supposition is premature and without support. The TLAB Member assessed the subject property and the Regulation based on the proposal before the Tribunal requesting a severance, which had not yet been granted.

152With respect to the Requestor’s assertion that the Decision further errs in its interpretation of the zoning requirement for soft yard landscaping with the requirement for a front yard setback, I find no such conflation.

153The Requestor submits that the proposed new house to be constructed on the newly created Part 2 (retained) lot complies with the By-law standard for front yard setback and asserts that Member Yao refused to approve the Applications “...on the basis of a matter which complies with the By-law and does not require a variance is an error of law.”³⁹

154I find no substantiation in the Decision of this alleged error. On the contrary, the proponents do require a Variance (Variance #9) for a percentage of the front yard devoted to soft landscaping for the new home proposed on the Part 2 lot (fronting on Hocken Ave.).

155Member Yao addresses this variance directly in paragraph [31] of the Decision. There, he notes that the proponents seek to be allowed to provide 0%, whereas the By-law requires a minimum of 50% soft landscaping. He clarifies that the proposed 0% is for a front yard that is “…at most 0.15m deep, which is virtually no front yard.”⁴⁰

156He does not conflate the zoning requirement but, rather, assesses the proposal that was before the TLAB within a broader context concluding that to construct a “reasonably sized house” (his term) on a lot approximately 54 feet deep (subject property) would be “…contrary to the intent of the zoning by-law”⁴¹ because it would require compromises to such zoning by-law standards as rear yard setbacks, a conventional front yard, and FSI.

iii. Failing to Consider Provincial Policy

157The Review Request then addresses the TLAB Member’s alleged failure to fully consider Provincial Policy.

158The Requestor submits that while policy objectives and directives of the PPS and Growth Plan apply across the Greater Golden Horseshoe generally, they nevertheless establish a policy framework which promotes intensification and more efficient use of land, particularly in areas served by higher-order transit, such as the area in which the subject property is located.

159For context, the PPS and Growth Plan contain policies that support, among other directives, the goal of ‘intensification’ through ‘Built Up’ areas. This is achieved by projecting, providing direction, and allocating population and employment growth targets and setting geographic distributions in that regard.

160Such allocations are connected to a series of additional directions, density targets, municipal direction in approved Official Plans and a host of possibly competing policy objectives respecting housing types, quality, distribution, the natural environment (‘green infrastructure’) and other elements that result in complete communities.

161However, these specific, yet broad provincial directives are subject to qualifiers such as development is to occur ‘where appropriate’ and that determinations of local land use priorities and the implementation of the mandates and policy priorities espoused, except in retained areas, are to be the prerogative of the local municipal Official Plan.

162The assertion suggested is that Member Yao summarily dismissed the proposal as “too general” to be helpful for the development of a single lot. In doing so, the TLAB Member failed to meet the TLAB’s obligations under s. 3(5) of the Planning Act to consider and apply these Provincial policies.

163Furthermore, the Requestor contends that if these Provincial policies, and specifically those that relate to ‘intensification’, had been considered and applied by the decision-maker, as Mr. Rendl did in his evidence, a different outcome likely would have resulted.

164Again, I must respectfully disagree. I find that Member Yao neither ignored this important policy framework nor failed to meet his obligation under the Planning Act.

165In paragraph [7] of the Decision, Member Yao clearly states that a decision of the TLAB must be consistent with the 2020 PPS and conform to the Growth Plan and acknowledges that these policy documents provide guidance.

166He then states that, in his view, matters identified in that section are too general to be helpful in assessing the development of a single lot on the subject property, as proposed by the Applicants.

167It is the City Official Plan that, by provincial PPS direction and approval pursuant to statutory processes, is the principal policy document of relevance to the subject Applications (for consent and variances). There was no disagreement from Mr. Rendl in this regard.

168This is confirmed in paragraph [7] of the Decision where Mr. Rendl is quoted by the TLAB Member as stating that these (PPS and Growth Plan) are “…high level policy documents implemented through the Official Plan.”

169In the matter at hand, the Applications that were before the TLAB propose severing the subject property to create two lots, retaining the first newly created lot, maintaining the existing residential dwelling, and constructing a new dwelling on the other newly created lot.

170The severance and the variances required result in a proposal at a scale for which I do not find that the high-level policies of the PPS and Growth Plan offer more than general guidance, and I agree with Member Yao’s determination arrived that these “documents are too general to be helpful” and not directly engaged.

171Rather, Member Yao based his assessment of the proposal by relying primarily on application of the Official Plan policies and the Zoning By-law provisions to implement provincial policy directions, as alluded to in the Decision.

172The Appellants have described the proposal before the TLAB for a severance of the existing lot and associated variances to permit both the existing dwelling on the retained lot and the construction of a new dwelling on the other lot as ‘intensification’ of the subject property.

173The Provincial policy support for intensification, while including population growth, is tempered by two important qualifiers referenced above: intensification “where appropriate;” and subject to the local Official Plan as being “the most important vehicle” to implement provincial policy.

174The municipality does not have unfettered discretion as to its provincial policy implementation strategy. A severance, the division of lots to achieve identification objectives, is a prima facie policy supporting an entitlement to severances within Neighbourhoods in the City. While not prohibited (either by the Province or the City), consent to sever in Neighbourhoods must be both appropriate and in conformity (and be consistent with 3.2.1.2) with the City Official Plan.

175The test of ‘conformity’ with the Official Plan, mandated and supplemented by slightly differing language in s. 45(1) to include ‘intent and purpose’, brings in not only the policy language of the Official Plan but also all of its integrated and constituent parts, read as a whole, as to what it is attempting to accomplish.

176From a review of the Decision, it is my view and I believe that of Member Yao, that the provincial position on severances in City Neighbourhoods respecting intensification and population growth, is largely to defer to the City’s policy expressions in its Official Plan.

177Where the Official Plan cites a realization that change will occur, it allows for the inevitable: renovation, restoration, replacement, additions and enlargements, and infill. While not precluded, there is nothing in that language that supports or assigns a role for lot division for the purpose of accommodating the production of any and all new dwelling units, in any form proposed.

178Indeed, the policy language, supra, is expressed and framed in the negative: “No changes will be made through…minor variance, consent…that are out of keeping with the physical character of the neighbourhood.”

179Member Yao was alert to these policy interpretations and arrived at his decision regarding the subject of Applications with these in mind. I find no support for the Requestor’s assertions that the presiding Member ignored or failed to properly consider and apply any relevant policy framework, whether provincial or municipal, nor failed to meet his obligations under s. 3(5) of the Planning Act.

180The TLAB Member found that in the circumstance, the proposal before the Tribunal was for a severance and an additional new home, and the high-level policies of the PPS and Growth Plan were not directly engaged. Instead, he relied on the application of the OP policies and the Zoning By-law provisions to implement provincial policy directions.

iv. Incorrect Interpretation and Application of City Policy

181The Requestor asserts that the decision-maker erred in law by concluding that the Applications are unlikely to further the City’s public interest objectives, referring to City initiatives through the “Housing Action Plan (HAP)” which introduced legislation to increase housing supply through such built form as Garden Suites, Secondary Suites and Laneway Houses.

182It is the Requestor’s contention that the presiding Member assumed, erroneously, “…that Garden Suites and Laneway Houses are the only form of housing which would meet the City’s policy initiatives in this regard,”⁴² and that arriving at such an assumption is not supported by the evidence.

183Again, I respectfully disagree with the Requestor. In paragraph [57] of the Decision, Member Yao reconfirms Mr. Rendl’s testimony and evidence that “…although the proposal is not a garden suite or multiplex, the HAP (Housing Action Plan) efforts were relevant in assessing the planned context.”⁴³

184Member Yao concurs but goes further by stating “…so are the ones he did not discuss,” which refers to all the relevant OPAs he referenced in his Decision (para. [57]) and which have been listed earlier in this Review Request decision (see para.[68]).

185The TLAB Member does not conclude, as asserted by the Requestor, that Garden Suites or Laneway Houses are the only form of housing which would meet the City’s policy objectives to increase the supply of housing, particularly low-rise forms of housing.

186Rather, the TLAB Member states the following in paragraph [57] in the Decision:

“The statement in the Official Plan on housing is that what is needed is a “healthier balance among high rise ownership housing and other forms of housing (Footnote 23). Laneway and garden suites have the potential to be rental housing and helping (sic) to rebalance forms of ownership housing. A new detached house on a severed lot is unlikely to further these objectives (my emphasis).”⁴⁴

187I do not find that this conclusion presumes that rental and affordable housing is the only type of housing that is intended to be increased nor is Member Yao’s interpretation of the City’s HAP and relevant policy initiatives incorrect.

188Therefore, I find no error of law, as alleged, in Member Yao’s conclusions in this regard.

CONCLUSION

189I have reviewed the Final Decision as a whole and considered it in the context of decision-making by the TLAB.

190The 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.

191Rule 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.⁴⁵

192In 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.

193I find that the Requestor has not provided such compelling reasons which demonstrate that the TLAB violated natural justice or made errors of law and fact with respect to any of the grounds expressed in the Review Request including relying on evidence not filed, incorrectly interpreting Official Plan policies, or failing to properly consider and apply Provincial policies.

194I find that the TLAB Member dutifully considered the opinion evidence of the Appellants’ expert land use planner and reached a reasonable outcome. I find no flaw in the reasoning, or the decision delivered.

195Even 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.

196Therefore, in the matter of the Review Request in question, I find that there are insufficient grounds established under Rule 31.17 b) and c) 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.”

DECISION AND ORDER

197The Review Request is refused, and the Final Decision and Order of Member Yao, dated February 27, 2024, is confirmed.

D. Lombardi

TLAB Chair, Panel Member

Footnotes

1. 1The proposal to construct the new three-storey detached dwelling includes a ground floor deck on the side (east) wall, ground floor stairs on the side (west) wall leading to a side entrance, a rear second storey balcony, a third storey balcony on the side (east) wall, a rear ground floor concrete deck with a rear basement walkout, an in-ground swimming pool in the rear yard, and a side yard parking space.
2. 2Dunsmuir v. New Brunswick, 2008 SCC 9 (‘Dunsmuir’); Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699; R. v. J.M., 2021 ONCA 150 (‘Baker’); O.M.B. Decision, PL120479, decision of Member Denhez, November 15, 2012 (‘7 Ellsworth Ave. OMB’); Niagara River Coalition v. Niagara-on-the-Lake (Town), 2010 ONCA 173 (‘Niagara’); Bele Himmell Investments Ltd. V. Mississauga (City), 1982 CarswellOnt 1946, (Div. Ct.) (‘Belle’); Merriam-Webster Dictionary, definition, accessed from: merriam-webster.com/dictionary/virtually; CZ Designs and Consulting Inc., 2022 CarswellOnt 12087 (T.L.A.B.); Morad, Re, 2019 CarswellOnt 1222 (T.L.A.B.) (‘CZ Designs’); TLAB Decision Re: 63 Metheun Avenue, Issued August 04, 2021, TLAB File No. 20 223297 S45 04 TLAB (‘63 Metheun’); TLAB Review Request Order Re: 21 Valley View, Issued November 9, 2022, TLAB File No. 22 108489 S45 11 TLAB (’21 Valley View’); TLAB Decision Re: 225 Brunswick Ave., Issued December 17, 2021, TLAB File No. 21 143563 S45 11 TLAB (‘225 Brunswick Ave.’); CAMPP v. Windsor Essex Residents Association v. Windsor (City), 2020 ONSC 4621 (‘CAMPP’); and TLAB Review Request Order Re: 14 Faith Avenue, Issued November 15, 2022, TLAB File No. 22 119722 S53 06 TLAB, 22 118723 S45 06 TLAB, 22 119725 S45 06 TLAB (’14 Faith Ave.’).
3. 3TLAB’s Rules of Practice and Procedure, as constituted after December 2, 2020, p. 44.
4. 4Review Request for 9 Ellsworth Avenue, dated March 28, 2024, para. 74, p. 21.
5. 5Review Request for 9 Ellsworth Avenue, March 28, 2024, paragraph 75, p. 21.
6. 6Minutes of the December 2, 2020, No. 29 TLAB Business Meeting, Agenda item 29.3, p. 6.
7. 7TLAB Review Request for 9 Ellsworth Avenue, dated March 28, 2024, para. 74 d), p. 21.
8. 8Review Request for 9 Ellsworth Avenue, dated March 28, 2024, para. 12, p. 4.
9. 9Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653, para. 682.
10. 10Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, para.28.
11. 11Review Request for 9 Ellsworth Avenue, March 28, 2024, para. 17, p. 5.
12. 12Member Yao’s Final Decision & Order, dated February 27, 2024, paragraph [10].
13. 13TLAB’s Rules of Practice and Procedure, as amended Dec. 2, 2020, p. 20.
14. 14Review Request for 9 Ellsworth Avenue, dated March 28, 2024, para. 10, p. 3 – “Mr. Jenkin’s oral testimony lasted for two (2) hours.”
15. 15TLAB Practice Direction No. 6, adopted May 26, 2020,
16. 16Review Request for 9 Ellsworth Avenue, dated March 28, 2024, para. 21 e), p. 7.
17. 17Ibid., p. 8.
18. 18Member Yao’s Final Decision for 9 Ellsworth Ave., dated February 27, 2024, para. [52].
19. 19Mr. Rendl’s Affidavit, dated March 28, 2024, para. 62., p. 11.
20. 20Member Yao’s Final Decision for 9 Ellsworth Avenue, dated February 27, 2024, para. [49].
21. 21Review Request for 9 Ellsworth Avenue, dated March 28, 2024, para. 23, p.9.
22. 22Ibid., para. 24.
23. 23Member Yao’s Final Decision for 9 Ellsworth Avenue, dated February 27, 2024, para. [17].
24. 24Mr. Rendl’s Affidavit, dated March 28, 2024, para. 16, p. 5.
25. 25Ibid., para. [18].
26. 26Mr. Rendl’s Affidavit, dated March 28, 2024, para. 22, p. 6.
27. 27Ibid., para. [23], Figure 4. Rendl summary of Minor Variance Approvals Chart
28. 28Member Yao’s Final Decision for 9 Ellsworth Avenue, dated February 27, 2024, para. [22].
29. 29*Ibid., para. [15] – I note that para. [15] is duplicated in Member Yao’s Decision, but this reference refers to paragraph [15] under the subheading ‘Part 1- Cornerstone Official Plan test’.
30. 30Review Request for 9 Ellsworth Avenue, dated March 28, 2024, para. 52, p. 15.
31. 31Member Yao’s Decision for 9 Ellsworth avenue, dated February 27, 2024, para. [24].
32. 32Ibid., para. [26].
33. 33Review Request for 9 Ellsworth Avenue, dated March 28, 2024, para. 52, p. 16.
34. 34Ibid., para. [27].
35. 35CAMPP v Windsor Essex Residents Association v Windsor (City), 2020 ONSC 4621, at para. 33.
36. 36Review Request for 9 Ellsworth Avenue, dated March 24, 2024, para. 58, p. 17.
37. 37Member Yao’s Final Decision for 9 Ellsworth Avenue, dated February 27, 2024, para. [26].
38. 38Review Request for 9 Ellsworth Avenue, dated March 24, 2024, para. 60, p. 17.
39. 39Review Request for 9 Ellsworth Avenue, dated March 28, 2024, para. 63, p. 18.
40. 40Member Yao’s Final Decision for 9 Ellsworth Avenue, dated February 27, 2024, para. [32].
41. 41Ibid.
42. 42Review Request for 9 Ellsworth Avenue, dated March 28, 2024, para. 71, p. 20.
43. 43
44. 44Member Yao’s Final Decision for 9 Ellsworth Avenue, dated February 27, 2024, para. [57].
45. 45(SCC, 2019) para. 102-103