Toronto (City) v Wood, 2024 ONTLAB 261

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 211

Toronto, Ontario M4R 1B9

Date:

2024-09-16

20 230446 S53 02 TLAB

20 230447 S45 02 TLAB

20 230450 S45 02 TLAB

Toronto (City) v Wood, 2024 ONTLAB 261

REVIEW REQUEST ORDER

Issuance Date:

September 16, 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):

CITY OF TORONTO

Applicant(s):

DENNIS WOOD

Property Address:

84 NORTH DR

COA File No.:

20 158548 WET 02 CO (B0024/20EYK)

20 158552 WET 02 MV(A0243/20EYK)

20 158553 WET 02 MV (A0242/20EYK)

TLAB Case File No.:

20 230446 S53 02 TLAB

20 230447 S45 02 TLAB

20 230450 S45 02 TLAB

Hearing Date(s):

June 17, 2021, September 13, 2021, September 14, 2021, December 2, 2021, December 16, 2021, April 29, 2022, July 22, 2022, September 27, 2022

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By:

TLAB Vice Chair A. Bassios

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

D. WOOD

Appellant (CITY)

CITY OF TORONTO

D. ELMADANY (CITY OF TORONTO)

M. MAHONEY (CITY OF TORONTO)

Party (TLAB)

P. KRZYWUCKI

D. WOOD

E. BASHURA

(WOOD BULL LLP)

Participant

G. CANCELLI

Participant

M. J. ORR

Participant

A. ZRADO

Participant

J. COMELLA

Participant

S. YIP

Participant

L. CANTARUTTI

Participant

T. SAMILA

Participant

D. OLYNYK

Participant

BUTTONWOOD HILL RESIDENTS' ASSOCIATION

Participant

M. NOTTEN

Participant

L. NOTTEN

Participant

E. BURLACOFF

Participant

L. ANDERSON

Participant

R. BASSYOUNI

Participant

I. ANDERSON

Participant

C. WALTER LEM

Participant

I. PASECHNIK

Participant

N. ROPER

Participant

P. SALIBA

Participant

D. MURRAY

Participant

R. A. PEREZ

Participant

A. ANDERSON

Participant

J. S. SMITH

Participant

M. SHOSTAK

Participant

M. VETTESE

Participant

G. MCKETTON

Participant

C. COSTA

Participant

P. COSTA

Participant

S. TEHRANCHI

Participant

F. RACCO

Participant

M. VETTESE

Participant

M. TKACH

Participant

A. BARNES

Participant

M. COUTTS

Participant

G. COUTTS

Participant

T. COLANGELO

Participant

M. GALATI-MATAR

Participant

L. ARMOUR

Participant

I. KREMBLEWSKI

Participant

A. LEES

Participant

J. MCCUTCHEON

Participant

S. ROPER

Participant

B. K. WILDS

Participant

J. CHU

Participant

F. PLASTINA

Participant

G. YIP

Participant

J. LEM

Participant

T. KULAR

Participant

S. KULAR

Participant

R. ZRADO

Participant

G. COOK-BENNETT

Participant

M. SMITH

REVIEW REQUEST NATURE AND RULE COMPLIANCE TO INITIATE

1On December 3, 2020, the City of Toronto’s Committee of Adjustment (COA) approved an application for consent to sever the property known as 84 North Dr, in conjunction with two associated applications for variances on the resultant new lots.

2On December 18, 2020, the City of Toronto (City) appealed the COA’s decision.

3The hearing of this matter took place over eight separate days, the first of which occurred on June 17, 2021 and the last on September 27, 2022.

4In May 2023, the presiding member resigned, ending his appointment as a Toronto Local Appeal Body (TLAB) Member. In these circumstances, a Member remains responsible for a decision or determination of a proceeding that they have commenced. In early 2024, the presiding Member informed the TLAB that they had suffered a major health issue and would not be able to bring the decision on 84 North Dr to conclusion.

5At the time that the TLAB was informed of the circumstances of the presiding member, the decision of the 84 North Dr Appeal had been outstanding for some 18 months.

6The TLAB Chair issued an Interim Decision on March 26, 2024, finding that the most reasonable resolution was to assign a different Member to complete the matter and issue a final decision and order “given the situation and in order to acknowledge and preserve the significant time and resources already expended in this Proceeding by the Parties and Participants”.

7The TLAB Chair reassigned the file to Member Yao in accordance with TLAB Rule 2.17.

Rule 2.17 – If a Member presiding over a hearing resigns from the TLAB before a

decision or determination in that Proceeding is given, the Chair may appoint another Member to complete the Proceeding and issue a decision.

8On April 23, 2024, Member Yao (the Member) issued a Decision and Order refusing the consent and the variances requested.

9A Request to Review the final Decision of this Appeal (the Request) was filed on behalf of the Owners of 84 North Dr by counsel (the Requestor).

10A Response to Review Request was filed by the City. A Reply to Response to Review Request was filed on behalf of the Owners.

11The TLAB Chair has designated me to conduct the Review and make a decision in accordance with the Rules.

THE LEGISLATIVE AND POLICY FRAMEWORK

TLAB Rules of Practice and Procedure

2.2 These Rules shall be liberally interpreted to secure the just, most expeditious and cost-effective determination of every Proceeding on its merit.

2.12 The TLAB may grant all necessary exceptions to these Rules, or grant other relief as it considers appropriate, to enable it to effectively and completely adjudicate matters before it in a just, expeditious and cost-effective manner.

2.17 If a Member presiding over a hearing resigns from the TLAB before a decision or determination in that Proceeding is given, the Chair may appoint another Member to complete the Proceeding and issue a decision.

Rule 31 (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

Relief Requested.

12The Requestor cited TLAB Rule 31.16 c) which allows the Chair to cancel the Final Decision or final order, and where appropriate, direct a ‘de novo’ Oral Hearing before a different TLAB Member.

13The remedy requested is that the Final Decision be cancelled, and that direction be given for either (a) a de novo virtual Oral Hearing before a different TLAB Member than Member Yao or (b) the completion of the Hearing and the rendering of a Final Decision by a different TLAB Member than Member Yao, after receiving detailed submissions from legal counsel for the parties, in writing and orally, on the facts and law, in the context of the evidence already tendered at the hearing.

14The Requestor’s preference is the second direction, (b).

Alleged grounds for decision to be cancelled.

15The grounds set out in the Request can be summarized as follows:

a. A violation of the rules of procedural fairness by the Chair in the Interim Decision;

b. A number of violations of the rules of natural justice and procedural fairness by Member Yao and:

c. Errors of fact, errors of law and errors of law and fact which would likely have resulted in a different Final Decision if not made.

a. AND b. PROCEDURAL FAIRNESS: INTERIM DECISION AND THE MEMBER

16The Requestor asserted that (the Chair’s) “Interim Decision and the “completion of the Proceeding” by Member Yao denied the Requestor procedural fairness”. (Paragraph 7).

17The Request outlined the Requestor’s dissatisfaction with the process in that, essentially, they were not consulted on the way in which the Interim Decision directed that a Decision be rendered and the matter concluded.

18The Requestor asserted that the Interim Decision “unilaterally” concluded that the nature of the issue to be addressed was to preserve the significant time and resources already expended in this Proceeding.

19Paragraph 6 of the Request acknowledged that counsel to the Requestor had, prior to the Interim Decision, reached out to the Chair requesting a meeting to discuss the delay in obtaining a final decision.

20The imperative and reason for the Interim Decision was that the Member seized of the matter, after an extensive expenditure of effort and resources on the part of all Parties and Participants, and a significant delay, could not conclude the matter. This, unavoidably for the TLAB, was the nature of the question to be addressed.

21The immediate corollary to the primary issue of the incapacity of the presiding Member to issue a decision was whether the circumstances required a restart to the proceedings with a new Member, or whether the Parties and Participants could be served by an application of the TLAB Rules to secure the just, most expeditious and cost-effective determination of every Proceeding on its merit. This is explicitly the goal of the TLAB and the mandate of the Chair as articulated in Rules 2.2 and 2.17.

22Amongst the vigorous assertions of violations of procedural fairness in this instance, the Requestor has not explained or named the actual principle(s) of procedural fairness that are presumed to have been violated by the Chair’s Interim Decision.

23From a reading of the Request and an examination of the preferred remedy requested, it is not the reliance on evidence already tendered at the Hearing (before a different Member) as a basis for the Decision that is the source of the Requestor’s procedural concern.

24The preference of the Requestor is not a Hearing ‘de novo’ as contemplated by Rule 31.16 c) but that a different Member be assigned to hear the evidence already tendered, consistent with the directive of the Chair in his Interim Order, but with the condition that legal counsel first be heard “on the facts and the law”.

25The source of the Requestor’s assertion of violation would seem to be founded on the absence of prior notice or consultation with the Parties to obtain their views on what would constitute a procedurally fair process in the context of the introduction of a new decision maker.

26Again, the principle(s) that are alleged to have been violated are not spelled out. Paragraph 3 asserted that the matter of ensuring procedural fairness is “obvious”. Unfortunately for the Requestor, it is not obvious to me how procedural fairness was repudiated.

27The Chair addressed an unfortunate circumstance of tribunal administration in accordance with the Rules and within his authority. The issue of the presiding Member’s inability to complete his assignment was not a procedural issue born within the conduct of this case, but an administrative predicament for the tribunal that affected a number of cases, as was noted in the Interim Decision.

28The Chair appropriately exercised his authority and his mandate to reassign the matters for which a Hearing had been completed and for which a Decision remained outstanding. The instructions in each were the same: that the Members dispose of the matters appropriately, promptly issue a final decision and order, and be given all the latitude permitted within the TLAB’s Rules to complete the assignments.¹

29Rule 2.17 explicitly confers authority to the Chair to resolve outstanding matters in this way. I am left asking how the direction of the Interim Decision and the “completion of the Proceeding” by Member Yao denied the Requestor procedural fairness.

30A situation where a seized Member is unable to complete their assignment and bring a matter to conclusion is certainly not ideal. Circumstances being what they were, however, necessitated the Chair’s exercise of his authority. It is not within the scope of the Review Request to dispute the Chair’s prerogative.

31Paragraph 14 of the Request comes closest to an explicit statement of the nature of the infringement asserted by the Requestor. It states that:

Member Yao should have given the parties an opportunity to make supplementary submissions to him based upon the evidence at the hearing. This is essential as the nature of submissions by counsel is usually a function of knowing that the person to whom submissions are being made is one who shared the same room (virtually) and heard and saw the same evidence as did counsel and where shorthand references to evidence are adequate. In other words, the submissions are different.

32All eight days of the proceedings in this matter were conducted virtually and recorded. Member Yao stated explicitly in paragraph 9 of his Decision that he had reviewed filed materials and listened to recorded audiovisual transcripts of the hearing conducted before the original presiding Member. He heard and saw precisely the same evidence as counsel did. He experienced the same virtual “room”, albeit not in real time. He had a complete foundation upon which to make his decision.

33I have no reason to think that the Member did not diligently attend to the evidence on tape as he would in any of his real time hearings conducted virtually. There is no foundation to suggest that by watching and listening to the recordings of evidence, the Member would not be able to grasp the evidence as effectively as the original presiding Member without the assistance of supplementary submissions from legal counsel.

34I do not accept a premise that the parties to a Hearing have a procedural right to reframe their arguments to tailor them to the new Member when a new Member is assigned. I note that where matters are heard in writing at the TLAB, the Parties most often have no knowledge of who the Member seized with the hearing is until the Decision is issued. In the substantial number of TLAB hearings conducted and concluded within a single day, the Parties do not have prior knowledge of who the presiding member will be, and have limited to no opportunity within that timeframe to customize their submissions for the Member.

35Paragraph 9 of the Request says that “the emphasis of the Chair on addressing an embarrassing situation with speed has resulted in waste for all and prejudice to the Requestors”. I find this insinuation misguided and offensive to the TLAB and to the Chair.

36If there had been any procedural unfairness inherent in the direction of the Interim Decision, the City of Toronto, the other Party, would have been equally subject to it. I see no distinct prejudice to the Requestor in the approach. I fail to see “waste for all” in the process directed by the Chair in comparison to the alternative of a fresh de novo hearing.

37The assertion of the Requestor is that “the Final Decision would have been different had the Chair invited submissions from the Requestor and the City as to a fair process to complete the hearing as it is clear from the Final Decision that the member was not sufficiently knowledgeable as to the evidence and issues at the Hearing and made serious errors of fact, law or both which would, if not made, result in a different decision.”

38It is a stretch of epic proportions for the Requestor to suggest that any errors of fact or law which might be found in the Final Decision are attributable to the lack of “fair process” submissions from counsel. Bearing in mind that the preferred remedy of the Requestor is a reliance on the same evidence already heard, I find it difficult to credit the implication that “submissions on a fair process” would ensure that a new Member would become sufficiently “knowledgeable as to the evidence and issues” when this Member was supposedly not.

39The Requestor has not substantiated grounds for me to conclude that denial of procedural fairness arose from the Interim Decision.

40I note also the City of Toronto’s observation that an Interim Decision is not subject to Review. I have, nonetheless, addressed the assertion regarding procedural fairness in the context of the (reviewable) final Decision, recognizing the unusual circumstances that were spelled out in the Interim Decision and the procedural direction that reassigned the matter to a new decision maker.

c. ALLEGED ERRORS OF FACT AND/OR LAW

Alleged Errors of Law

1. Failure to have regard to the decision of the Committee of Adjustment.

2. Failure to conduct a site visit.

3. Consideration of restrictions on land proposed to be subdivided etc. without benefit of evidence or submissions.

Alleged Error of Fact

4. Failure to consider contrary evidence in regard to alleged instability arising from approvals of the applications.

Alleged Errors of Fact and Law

5. Failure to properly apply Official Plan Policy 4.1.5 in regard to existing physical character.

6. Misinterpretation of Romano evidence in regard to the appropriateness of the City study areas.

7. Election to consider prevailing lot size as meaning lot frontage.

8. Misinterpretation of Romano evidence in regard to prevailing lot size.

9. Introduction of “Too Big/Too Important” into Consideration of Minor When It Had Not Been Part of the Hearing.

41Before commencing a Review of the grounds asserted in the Request, a reminder of the purpose and parameters of Rule 31 are helpful. These comments are general propositions to be kept in mind in consideration of any Review.

• The first and most important reminder is that 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.

• The task of the Reviewer is not to assess the “correctness” of the Decision, nor to take into consideration what another Adjudicator may or may not have decided having been presented with the same evidence in this case. The task of the Reviewer is to establish whether there are arguable, definable errors, and, as well, whether they are of a nature (i.e., are of such significance) that could meet the threshold established in the Rules.

• 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) every argument made, and not received as desired, by the requesting party.

• The Grounds for Review mandated under TLAB Rule 31 set a consequential standard for findings, that the reasons and evidence are compelling, and specifically under Rule 31.17 c) that an error of law or fact has been made which would likely have resulted in a different order or decision.

• The basis for a decision must be understandable and, preferably, written in plain English. A Decision must reflect a suitable basis for its conclusions, taking into account relevant considerations and applying the law and policy germane to the TLAB’s mandate, including its own deliberations.

1. Failure to have regard to the decision of the Committee of Adjustment.

42The Requestor asserts that the Member did not have regard for the decision of the COA and had he done so, a different final decision would have been made.

43The substantiation for this claim in the Request does not attend to the regard that was had for the COA decision, but offers instead an explanation of the uniqueness of the COA decision. (A once in ten years decision for this type of consent). In my opinion, the unusualness of the COA decision is not a reason to motivate its reinforcement, but perhaps a reason to closely scrutinize the facts of the matter through the Appeal process.

44The Requestor suggests that the Member would be compelled to give “careful consideration to the facts of these applications and why they were seen as meritorious by all of the members of the Committee.” The COA decision did not offer insight into how the facts were weighed; it simply documented that the COA decided the applications met the required statutory tests. The only actual fact for which the TLAB could have regard was that the COA approved the applications on the basis that the statutory requirements were met.

45It would be absurd to suggest that having regard for the decision of the COA requires that the Member come to the same decision as the COA. It seems redundant to reiterate that a Hearing before the TLAB is a hearing de novo.

46Regard for the decision of the COA does not over-ride the Member’s duty to adjudicate the Appeal on the basis of the criteria set out in s.51(24) and s. 45(1) of the Planning Act. The claim that a different Appeal Decision would have been made through regard for the COA decision is unfounded.

47In his Decision, the Member set out, in detail, his reasons for refusal of the applications. Those reasons stand and may be tested for errors of law or fact. The Member would have, as the COA did, considered the evidence put before him, which presumably overlapped with the evidence put before the COA, and weighed those facts differently than the COA did. This re-test of fact and law is the fundamental purpose of an Appeal.

48I accord no credence to claim that the Member did not have regard for the decision of the COA and that had he done so, his decision would have been different. I find no basis for the claim that the Member made an error of law.

2. Failure to conduct a site visit.

49The Request contains no substantiation for the claim that the Member did not conduct a site visit, except to imply that he must not have done so because, had he seen the neighbourhood, his Decision would have been different.

50The grounds for Review (Rule 31.17) require that definable errors be identified in the Decision and that they be compelling.

51The (unsubstantiated) suggestion that the Member did not make a site visit, and that this constitutes an error of law or fact in the Decision, is a leap of interpretation which is unsustainable. There is no error.

3. Consideration of restrictions on land proposed to be subdivided etc. without benefit of evidence or submissions.

52The Request asserts as follows: Introduction by Member Yao into the Hearing, without the benefit of evidence or submissions, the s.51(24) (g) consideration of “the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land”).

53If this claim rests simply on the fact that the Member mentioned in the Decision the requirement of s.51(24)(g), whereas no evidence or submissions had been made on this criterion, then it should be plain that consideration of all the legislated requirements for approval of a consent to sever are part of the Member’s obligation whether or not the Parties chose to address them.

54The mandate of the TLAB in the Appeal of a consent to sever is that the TLAB must be satisfied that a plan of subdivision is not necessary for the orderly development of the municipality pursuant to s. 53(1) of the Act and that the application for consent to sever meets the criteria set out in s. 51(24) of the Act. These criteria require that " regard shall be had, among other matters, to the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality and to, the specific criteria listed (a) to (m), which includes the criterion referenced in the Request.

55The Member’s reference to criterion 51(24(g) is made, in paragraph 34 of his Decision, with respect to his reasons for preferring the evidence of Ms. James and rejecting Mr. Wood’s criticism of her evidence. This reference was made in the context of comparing the language of the Planning Act and the language of the Official Plan for the purpose of determining the weighting of lot frontage evidence.

56The Member’s primary reference in considering the weighting of lot frontage as a consideration is criterion 51(24)(f) the dimensions and shapes of the proposed lots, with 51(24(g) referenced as an adjunct illustration of the intent of the Planning Act with respect to controls on shapes and dimensions of lots.

57The Member’s conclusion to the paragraph which included reference to criterion 51(24(g) is as follows: “ I reject Mr. Woods’ criticism of Ms. James that she overemphasized the frontages. The severance test requires frontages to be considered.”

58Paragraph 41 of the Decision connects the Planning Act language of “restrictions” to the restrictions imposed by Zoning. The paragraph nonetheless correctly cites s.45(1) of the Act as the basis for the finding regarding the lot frontage variance and the general intent and purpose of the Zoning By-law. This is separate from the findings leading to refusal of the severance.

59I do not agree with the Requestor that had the Member made his decision without reliance on this reasoning, the Decision would have been different. I see the comments regarding criterion 51(24(g) as somewhat incidental to the overall thread of reasoning. The Member set out detailed, thorough, reasons for the importance he placed on lot frontage in his adjudication of the applications for the severance and variances. The Decision articulates multiple reasons why he considered the evidence to fall short of the tests imposed by the Planning Act.

4. Failure to consider contrary evidence in regard to alleged instability arising from approvals of the applications.

60A 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. 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) every argument made, and not received as desired, by the requesting party.

61The Member applied his mind to the question of stability in the context of s. 45(1) of the Official Plan. He acknowledged the evidence of Ms. James and found that stability would not be promoted and that, on balance, Council’s Official Plan goal would not be achieved.

62That the Member did not agree with the Applicant’s position on the issue of neighbourhood stability is not an error of fact or law, it is a finding that represents the appropriate exercise of his adjudicative responsibility.

63As the Reviewer, I am to give deference to the factual findings of the seized Member and provided that the decision-maker has provided replicable and reasonable grounds for the evidentiary findings, their responsibility is met. There is no error of fact or law in the Member’s finding regarding the direction of s. 4.1 of the Official Plan.

5. Failure to properly apply Official Plan Policy 4.1.5 in regard to existing physical character.

64This claim presents as an attempt to again re-litigate or reargue arguments that were made but not favourably received in the Decision.

65The Requestor attempts in the Request to re-introduce their countervailing arguments and to represent the Member’s findings to the contrary as errors of fact or law.

66Repeatedly, the Requestor asserts that as the Member did not refer to one or other parts of their evidence and argument in the Decision and that, therefore, the Member did not consider or failed to consider their evidence. Simply put, the Decision does not require an acknowledgement and repudiation (or concurrence with) every argument made, and not received as desired, by the requesting party.

67In coming to a decision, a Member must set out their reasons by tracing, where appropriate, the relevant threads through the evidence, by identifying those facts and arguments that the Member finds most relevant, and those to which they give most weight in coming to their determination.

68The Member devoted a substantial amount of space in the Decision to a consideration of OP Policy 4.1.5 and to consideration of the nature of the physical character of the neighbourhood, including annotated drawings and pages of analysis.

69The Decision provides a clear and detailed exposition of the reasons the Member came to the conclusion they did. That the arguments of the Applicant were not supported simply does not constitute an error on the part of the Member in absence of a specific, identifiable, compelling, actual error.

6. Misinterpretation of Romano evidence in regard to the appropriateness of the City study areas.

70My response to this claim is much the same as paragraphs 67 to 72 in the claim above, as the complaints are similar.

71A Review Request is not afforded as an opportunity to re-litigate or reargue a point that was made but not favourably received in the Decision. In writing a decision, a TLAB Member must consider opinion and evidence, and decide what weight to ascribe to each, in coming to his or her conclusions. The Decision must provide its basis for coming to the conclusion it did, but it does not require an acknowledgement and repudiation (or concurrence with) every argument made, and not received as desired, by the requesting party.

72The Member included a full and detailed analysis of the different study areas, including transcribed quotes from the Hearing, annotated drawings and consideration of Official Plan direction for defining study areas contained in OP Policy 4.1.5. In paragraph 37 of the Decision, the Member says:

“I accept Ms. James’ thesis of two neighbourhoods. I accept that besides having different frontages, there are differences in trees, driveway design, size of front yards, streetscape, landscaping and porosity, i.e., the ability to see between houses.”

73In the end, the Member preferred the evidence of the City’s Expert Witness regarding the general intent and purpose of OP Policy 4.1.5 and the “fit” of the proposed development within the neighbourhood. The Requestor has not established errors of law or fact.

7. Election to consider prevailing lot size as meaning lot frontage.

74This claim is the most blatant attempt to re-litigate and reargue arguments made in the Hearing. The Decision sets out a detailed analysis and reasoning for the Member’s determination, and concluded “ I find that on the evidence, the Mr. Romano’s opinion that there is only one character throughout the study area, and that there is no prevailing lot size, to be unsupportable”.

75The Requestor has not identified a clear, definable, actual, error on the part of the Member, except to assert, in essence, that their argument should have prevailed.

8. Misinterpretation of Romano evidence in regard to prevailing lot size.

76Similarly, the claim that the Member erred in “misinterpreting” Mr. Romano’s evidence and that this constitutes an error of fact and law is wholly unsupportable.

77The Member did not agree with Mr. Romano’s advice that there is only one character throughout the area, and Mr. Romano’s related advice that there is no (distinguishable)² prevailing lot size.

78In paragraph 38 of the Decision the Member sets the bar for the Applicant. “For the variances, the burden on the proponents is not just to show 22 m or less is the most prevalent, but ultimately that the frontage variance “maintains the intent of the Official Plan and zoning by-law”

79In paragraph 39 of the Decision, the Member says as follows:

What the Figure 5 map shows is that the “most prevalent” frontage is yellow. And the two 21.29 m lots are numerically close to this yellow subgroup. But this is but one step on the way to “respecting and reinforcing neighbourhood character”. I do not agree that the character of the large, “unconventional” lotting fabric on the south side and elsewhere is respected. It certainly is not reinforced.

80The Decision did not parse and detail Mr. Romano’s evidence in a way that the Requestor would have preferred. The Member also did not accord Mr. Romano’s evidence weight in a way that the Requestor would have preferred. This does not constitute an error; it is the prerogative of the adjudicator.

9. Introduction of “Too Big/Too Important” into Consideration of Minor When It Had Not Been Part of the Hearing.

81The City’s Response to the Request for Review says as follows:

“52. Member Yao made no errors in applying the statutory test to interpret the meaning of “minor” for these applications. Member Yao’s recitation of the test was correct in law despite not being a direct quote of the De Gasperis decision cited by the Applicant in the Review Request.

53. Both parties discussed the interpretation of “minor” at the hearing when making final submissions, whether explicitly or via inference. The interpretation of “minor” in the Decision is trite law for experienced counsel, in any event, and both parties had experienced counsel.

54. The Applicant holds the onus to prove their Application at the hearing. To the extent that the Applicant states at paragraph 56 of the Review Request that the Member’s recitation of the interpretation of “minor” was not introduced at the hearing is a tacit admission by the Applicant that it did not meet its onus.”

82The Requestor’s own cited authorities³ include the landmark case DeGasperis v. Toronto (City)⁴ and the highlighted following paragraphs:

“The Court noted that while impact may be an important factor, it is not the only factor. Moreover, "impact" cannot be the only consideration in determining whether a variance is "minor" — the size of the variance must also be considered.“

“It follows that a variance can be more than a minor variance for two reasons, namely, that it is too large to be considered minor or that it is too important to be considered minor.”

83I agree with the City that the onus was on the Applicant to fully address judicial standards for the consideration of Minor. The attendance of the Member to this statutory test in absence of argument from the Applicant on this aspect does not constitute an error on the part of the Member but perhaps an omission in the case of the Applicant.

CONCLUSION

84The preponderance of the errors claimed in this Request present as attempts to reargue contested issues from the Hearing that were addressed in the Decision, but not to the favour of the Applicant.

85I quote from Chair Lombardi’s decision in Toronto (City), Long Branch Neighbourhood Association v. Singh⁵.

“Member is entitled, on the standard of reasonableness, to draw inferences and conclusions from the evidence, provided there is some relevant evidence tendered to support the conclusion and the conclusion itself is not perverse. Having heard the evidence, and having made observations, the Member is entitled to formulate their own opinion on acceptability or disagreement with the professional witness.

Without something further in law or principle, that exercise is part of the job function of the TLAB Member. To repeat, that function does not extend to require an elaboration on each detail, formulation or aspect of evidence of every witness along the way, provided it is clear that relevant considerations were entertained and irrelevant ones discarded.”

86The standard of review requires that a definable error be identified and established. To put a fine point on it, the Decision itself, provided it is properly reasoned, is not reviewable; the reviewer is not to “second guess” the Member’s findings.

87The task of the reviewer in establishing grounds under Rule 31.17 c) is to establish whether the Member got any of the law wrong or any of the facts wrong. A finding of error of fact must be consequential, i.e. that had the error not occurred, a different decision would have been made. I find no such error.

88I do not find that there has been a breach of procedural fairness on the part of the Chair in the Interim Decision, or on the part of the Member.

89Distinguishing the procedural direction of the Chair from the remedy requested by the Requestor, I find no substantive difference except that the remedy seeks to have an opportunity for the Parties to make detailed submissions on the facts and the law, still in the context of the evidence already tendered at the hearing. I reject the premise that the absence of such an opportunity denied the Requestor procedural fairness.

90I find no error of law or fact such that a different decision would have been made. Neither do I find that a breach of procedural fairness has been established.

DECISION AND ORDER

91I confirm the Decision of the TLAB issued April 23, 2024.

A. Bassios

TLAB Vice Chair, Panel Member

Footnotes

1. 1The case cited in Tab 5 of the Requestor’s Book of Authorities (Reply to Response to Review Request) is distinguishable from this case as the hearing of evidence in that matter had not yet commenced.
2. 2My descriptor for clarity
3. 3Affidavit Schedule H.
4. 4DeGasperis v. Toronto (City) Committee of Adjustment, 2005 CarswellOnt 2913.
5. 5Toronto (City), Long Branch Neighbourhood Association v. Singh, 2023 ONTLAB 128