Blue Lion Building Corporation (Re), 2024 ONTLAB 279

Toronto Local Appeal Body

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

Date: 2024-11-05

23 230693 S45 11 TLAB

Blue Lion Building Corporation (Re), 2024 ONTLAB 279

REVIEW REQUEST DECISION & ORDER

Issuance Date: November 5, 2024

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

Appellant(s): BLUE LION BUILDING CORPORATION

Applicant(s): BLUE LION BUILDING CORPORATION

Property Address: 62 CROFT ST

COA File No.: 23 201152 STE 11 MV (A0790/23TEY)

TLAB Case File No.: 23 230693 S45 11 TLAB

Hearing Date(s): April 10, May 13, May 21, May 22, June 24, 2024

Decision Delivered By: TLAB Chair D. Lombardi

REGISTERED PARTIES AND PARTICIPANTS:

People Type	First Initial. Last Name	Representative
Applicant / Appellant	BLUE LION BUILDING CORPORATION/M. TEITELMAN	E. COSTELLO
Party	H. GAVENDO
Party	HARBORD VILLAGE RESIDENTS AS
Party	M. WANG
Participant	J. BOBBS
Participant	E. CHEN
Participant	W. MOEDER
Participant	M. VOYSEY
Participant	K. SHINTANI
Participant	B. WHITE-STRAUSS

REVIEW REQUEST NATURE AND RULE COMPLIANCE TO INITIATE

1On November 8, 2023, the Toronto and East York Panel of the City of Toronto (City) Committee of Adjustment (COA) refused seven (7) variances in total to permit the construction of a new three-storey detached dwelling with a front integral garage, a rear third-storey roof deck, and a partial green roof (Application) on the property municipally known at 62 Croft Street (subject property).

2Mark Teitelman (Appellant), the owner of 62 Croft Street, through his agent Blue Lion Building Corporation, appealed the COA’s decision to the Toronto Local Appeal Body (TLAB), and the matter was heard by the TLAB over the course of five (5) Hearing days between April-June 2024 (Appeal).

Prologue

3There is a notable prelude to the Appeal in question which requires explanation at this point.

4In 2019, Mr. Teitelman received approval from the Local Planning Appeal Tribunal (as the Ontario Land Tribunal was called at that time) for consent to sever an existing property in Harbour Village neighbourhood into two lots: (i) a lot fronting on Lippincott Street (157 Lippincott Street); and (ii) the subject property, 62 Croft Street, which has direct frontage on Croft Street.

5At the same time, the Local Planning Appeal Tribunal approved fifteen (15) variances in total to permit the development of the subject property with a new, two-storey dwelling.

6Three years later, Blue Lion Building Corporation applied to the COA for variances to permit a revised development proposal for the subject property, the Application in question in this Review Request, which was refused and appealed to the TLAB.

The TLAB Appeal Hearing

7In total, the subject Appeal consumed a total of five (5) non-consecutive Hearing Days, the first held on April 10, 2024, and the last on June 24, 2024.

8After hearing the Appeal, TLAB Panel Member Ted Yao issued a Final Decision and Order (Final Decision) on August 1, 2024, refusing the variances requested by the Appellant.

9On August 30, 2024, Eileen Costello (Aird & Berlis LLP), filed a Request for Review (Review) of Member Yao’s Final Decision, on behalf of Mr. Teitelman, as permitted under the TLAB’s Rules of Practice and Procedure (Rules).

10The Review Request alleges that the TLAB violated the rules of natural justice and procedural fairness and made errors of law or fact which would likely have resulted in a different final Decision or Order.

11The Requestor (Ms. Costello) asks that the TLAB cancel the Final Decision and order that a new ‘de novo’ Hearing be held before a different TLAB Member as permitted by Rule 31.16 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

12Rule 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 it has been structured to facilitate findings with respect to Rule 31.17 (‘Grounds for Review’).

13These grounds are the only basis upon which an Appeal Decision may be set aside and a new Hearing ordered.

14Before 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 affecting a Party.
• Fundamental to assessing the assertions made in the Review 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.

15It is incumbent on the presiding Member who heard the appeal to listen to the evidence and make decisions based on the application of law, policy, evidence, and the public interest.

16A Member’s decision is based on that Member’s discretionary perception of the evidence and relevant considerations.

17It is with these considerations in mind that I’ve read and reread the Member’s Final Decision and Order, the Review Request, and the submissions filed in this matter by the Requestor as to the main TLAB hearing events.

18The Review Request submission consists of some six-hundred-and-fifty (650) pages, including the requisite ‘Overview of the Review Request’ (‘Overview’), the ‘Written Argument with Documents to be Relied on’, and case law in the form of twelve (12) former Ontario Municipal Board (OMB)/Local Planning Appeal Tribunal (LPAT) and TLAB decisions in a Book of Authorities.¹

19Additionally, I reviewed the relevant portions of the Digital Audio Recordings (DAR) of all five of the Hearing Days of various lengths.

Review Request Grounds

20It is important to note that the Reviewer applies the language of Rule 31 and does not enter into a set of considerations that depart from the responsibilities of a Review.

21A Review is not, as above stated, a re-hearing of the matter to consider whether the review might have come to a different conclusion. It is also not an invitation to simply challenge a final decision and order with which one disagrees.

22On the contrary, it is a canvas as to whether any of the statutory grounds afforded a review under the Statutory Powers Procedure Act (SPPA) are established.

23The TLAB Rules clearly envisage that there must be a demonstrable error(s) in the categories identified that warrant relief of the variety and to the standards provided for in Rule 31.

24In this regard, as the Divisional Court held in Roozbuilt Ltd. v. Jamieson, a decision on a Leave to Appeal Motion regarding a TLAB Review Requestion Decision for 9 Thirty Eighth St.:

“The review process is not purely adjudicative in nature. It is important to remember that a TLAB decision, both initially and in the review, requires determinations about the appropriate policy to be applied to a particular case and in light of the evidence before the tribunal…Policy considerations and their interpretations and applications play a significant role in the TLAB decision making (sic) process.”²

25In the ‘Overview’, the Requestor sets out the basis for the Review pursuant to Rule 41.17 (b) and (c) and the rationale as to why Mr. Teitelman asks that the presiding Member’s Final Decision of August 1, 2024, be reviewed.

26In this regard, the full consideration must be stated and applied, which is as follows: namely, whether the decision-maker:

“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 (my emphasis).”

27This standard implies that the reviewer must not only be apprised by the Review Request of a violation of the rules of natural justice and procedural fairness and a clear error of law or factual matter of significance but also be satisfied that if an error occurred, it would likely have led to a different outcome.

28Rule 31 of the TLAB’s Rules outlines, by authority, the only three remedies available to the Reviewer following the completion of a 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 TLAB Member.”³

29The Requestor asserts that in the Final Decision, the decision-maker:

a) Violated the rules of natural justice and procedural fairness by:

a. Providing insufficient reasons in the Decision;

b. Manufacturing his (Member Yao’s) own evidence and inappropriately taking "judicial notice" of information not properly before him at the Hearing; and

c. Allowing the prejudicial and irrelevant evidence of Party Wang, who was permitted to:

i. file a witness statement containing inadmissible opinion evidence and statements which described her personal history and relationship with the applicant, which was irrelevant to the proceedings and prejudicial to the applicant; and

ii. act as both agent and a witness.

b) Committed an error of law or fact by:

a. wrongly applying and evaluating the proposal against the City of Toronto’s ‘laneway suites’ policies and zoning regulations; and

b. wrongly interpreting and applying Official Plan Policy 4.1.9.

30I note in the ‘Overview’ section of the Review, that the Requestor addresses the issues raised through the Request and outlines the grounds for review in the opposite order to those listed above.

31This makes the review somewhat more difficult for the Reviewer to undertake.

32Therefore, to simplify the exercise and follow the format contained in Rule 31.17 a) through e) of the TLAB’s Rules, I will consider, first, whether the Request has provided compelling grounds to demonstrate that the decision-maker violated the rules of natural justice and procedural fairness.

Did the Decision-Maker Violate the Rules of Natural Justice and Procedural Fairness?

i. Provided Insufficient Reasons in the Decision

33The Requestor asserts that the reasons provided by the decision-maker in his Final Decision are “insufficient” and that this is demonstrated in the concluding paragraph 52, where the Member writes:

“The Act asks me to come to a “big picture” conclusion, one that integrates Council’s competing goals of stability, gradual and sensitive change, proportionality of lot size and interior space, rear and front yard setbacks, plus a specific vision for laneway suites. In my view, taking the big picture, this is too much housing for the lot.”

34In effect, the Requestor alleges that Member Yao was focused on the proposed “house” (i.e., the proposed final developed product), rather than the actual variances.⁴ Ms. Costello submits that this is “incorrect” (her term).

35Ms. Costello contends that the Divisional Court has determined that the law requires an adjudicator to substantively address the four tests in respect of the variance application and that in his Decision, Member Yao failed to do this by assuming a “big picture” approach.

36In making this assertion, the Requestor cites the Ontario Divisional Court’s decision in Vincent v. Degasperis which states that a tribunal’s decision “requires, without exception, a careful and detailed analysis of each application to the extent necessary to determine if each variance sought satisfies the requirements of each of the four tests.”⁵

37Furthermore, the Requestor asserts that in some circumstances, it may be appropriate to find, based on the evidence presented, that certain variances are inextricably linked or interrelated such that the failure of one results in the failure of another.⁶

38The Request concludes that there is no evidence to suggest that this mandatory exercise was undertaken by Member Yao and that the determinations he made in the Decision are based solely on the incorrect conclusion that the failure of a single minor variance results in the failure of the entire variance application.

39In addressing the question of procedural fairness, the Court, 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.”⁷

40Similarly, 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 fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.⁸

41Regarding Member Yao’s Decision, Ms. Costello asserts that the Member provides reasons related only to the density variance, and then concludes that “since each variance must meet all four tests, and [the density variance] fails the Official Plan and zoning branches, the appeal must be rejected.

42She contends that these are not adequate reasons to refuse the application as a whole and do not meet the standard for procedural fairness.

43It is important to remember that an application for variance relief is a request to change the applicable standards (usually a regulation) in a zoning by-law, to something felt more suitable in the given fact circumstances. The statute, the Planning Act, requires certain matters to be addressed before that relief can be granted.

44An application for a variance has been described by the courts as a ‘privilege’, not a right, and while there is a right to make such an application, there is no entitlement that such be granted.

45Hearings before the TLAB are considered ‘de novo’, meaning the entire application must be considered ‘anew’, as if it has not been heard before. The burden of proof is on the Applicant, even when they are not the Appellants.

46In considering an application, the TLAB holds the public interest as paramount; the public interest evokes a consideration of the merits and demerits of the request.

47The public interest is expressed through the Official Plan and zoning by-laws, and departures to be approved therefrom must be expressed with regard to their tenets on the four tests, policy and principles of good community planning.

48As the Divisional Court found in its decision in Plotkine v. Seindenfeld, “the content and substance of any decision needs to be measured against the nature and depth of the hearing or proceeding to which it responds.” ⁹

49In Vincent v. DeGasperis (DeGasperis), the Divisional Court held that the support base for the departure from the zoning by-law is to be reflected through reasons in a decision that addresses the statutory tests and policy.

50Generally, a variance must satisfactorily and independently pass all applicable policy and the four statutory tests to be granted, and in the event of an appeal, the tribunal, in its reasons, must set out whatever may be reasonably necessary to demonstrate how it did so.

51However, jurisprudence established by tribunals such as the TLAB and the Divisional Court has also recognized that the test under section 45(1) of the Planning Act is “disjunctive.”

52More importantly, these judicial forums have acknowledged that the failure to pass any one element is sufficient to refuse the variance where the considerations going into that refusal are relevant and not perverse.

53For example, in Simon v. Bowie, the Divisional Court did not agree with DeGasperis that the appeal tribunal needed to apply each test “entirely separately and formulaically.”¹⁰

54Furthermore, this obligation is not prescribed for a decision that refuses a variance or variances, as the failure of any one of the tests precipitates the refusal.

55It is tautology in the jurisprudence of the Ontario Land Tribunal and the TLAB that if a variance fails any one of the four tests, the variance fails and the application, including that variance, may fail with it.

56In reading the Final Decision, the facts outlined by Member Yao in his analysis of the proposal before him, invoke the ambit of the terminology in case law that if the decision-maker undertook an analysis and its considerations in totality “to the extent necessary,” he or she was not required to comprehensively assess the merits of each variance, namely the residual variances requested.

57In the case at hand, in paragraph [8] in the Final Decision, Member Yao clearly confirms that he applied the four tests as directed by the Planning Act, concentrating on whether the “project” ( his term for the Application) maintains the intent of the cornerstone section of 4.1.5 of the Official Plan.

58More importantly, at paragraph [4], under the heading ‘The Legislative and Policy Framework’, he further acknowledges that the analysis and reasons in his Decision “focus on the four statutory tests.” (my emphasis)

59Then, at paragraph [8], he clarifies that “Although the present application has three stories instead of two, the key variance of concern is the Floor Space Index (FSI)”¹¹ (my emphasis).

60In doing so, he underlines the supporting analysis that results in his conclusion that in his view, “…this is too much housing for the lot.”¹²

61Furthermore, at paragraph [10], he clarifies the above-cited statement by noting that “…the most significant variances (bolded in Table 1) are density (FSI) and the rear yard setback, although of course all seven must meet the tests.”¹³

62In the Zoning By-law, FSI is the numerical indicator of what the OP refers to as ‘density’ and density, in this context, refers to the size of the building in relation to the lot on which it is located and the neighbouring properties.

63As noted above, Member Yao confirmed the issue of density on the subject property as the crux of the matter and essential to whether the Application would succeed.

64The Member heard extensive testimony and evidence in this regard from the Appellant’s expert planner, Mr. Dales. He also heard from other Parties during the five days of Hearings, including Ms. Dexter on behalf of the Harbord Village Residents’ Association, who did not seek to be qualified as an expert witness.

65He provides a thorough analysis in his Decision, utilizing several tables and graphics, focusing on criteria a), c), f) and g) of Policy 4.1.5 as well as ss. 4.1.9 and 4.1.10 (see paragraphs [19] through [47] in the Final Decision).

66At paragraph [47], the Member then concludes that “…since each variance must meet all four tests, and this one (FSI variance) fails the Official Plan and zoning branches, the appeal must be rejected.”¹⁴

67The Requestor asserts that the Final Decision violated a rule of natural justice by failing to provide sufficient reasons for the decision-maker’s conclusion that the application was not minor and desirable, and that the Member followed no “path” of decision making related to the two critical tests. I find this assertion to be flawed.

68After reading the Final Decision numerous times, considering the Review Request, and listening to hours of the DAR recording for the Hearing days, it is clear to this reviewer that the key tests related to maintaining the general intent and purpose of the Official Plan and Zoning By-law.

69In this regard, I find that Member Yao addressed these through considerable analysis in the Final Decision and, although he did not provide the same amount of analysis for the other two tests, I find that he was nevertheless alert to issues in this regard.

70In his consideration of the test regarding the general intent and purpose of the Official Plan, the Member considered the requirements of OP Policy 4.1.5 c) and addressed both the FSI variance and the rear yard setback variance (in paragraph 23) and noted the front yard setback context. In conclusion to the discussion of these features, the Member determined that the proposal failed the most significant test in s.4.1.5.

71In the absence of approval for the massing, scale and density of the proposal (OP Policy 4.1.5 c)) as expressed through the FSI, rear yard and front yard setbacks, the submitted plans are not viable. A fundamental redesign of the proposal would be required and, therefore, the remaining variances are, from a practical perspective, bereft of context and rendered moot.

72I also find that the analysis in the Member’s decision was sufficient and appropriate, properly grounded and reasonable and, therefore, supported his conclusion to refuse the Application on the basis of failing the OP and zoning tests.

73Member Yao concluded that the FSI variance did not satisfy OP Policy 4.1.5 and, therefore, the Application should be refused. He did so after hearing extensive evidence from the Applicant over five Hearing Days.

74By refusing the first requested variance (for FSI), there was no requirement for the Member to make comprehensive findings in the Final Decision respecting the tests for the other variances sought by the Applicant.

ii. The Member manufactured his own evidence

75The Requestor asserts that Member Yao committed a related breach of natural justice by improperly taking “judicial notice” of certain matters and by manufacturing his own evidence. In doing so, the Member prejudiced the Applicant which can only be remedied by cancelling the decision and ordering a fresh hearing.

76In the Review Request, Ms. Costello takes issue with two matters raised in the Final Decision that were not presented as evidence at the Hearing.

77The first relates to a hand-drawn sketch by Member Yao in paragraph [2], titled Diagram of Variance #7, under Table 1 (Variance sought for 62 Croft St.).

78The Requestor asserts that this diagram was not adduced by any witness to the Proceeding, was manufactured by Member Yao, appearing for the first time in the Final Decision, and that the Member did not allow any evidence or allow any Party to test the relevance of the diagram through questioning.

79I find this particular assertion from the Requestor puzzling given that I interpret the diagram as simply the Member’s attempt to represent Variance #7 for diagrammatic and simplicity reasons, and nothing more.

80Further, I can find no instances in the Final Decision where the diagram is referenced and I do not understand the Requestor’s concerns that this violates the basic principles of natural justice.

81Of all the current, and past TLAB Members, I find that Member Yao is the most proficient at utilizing graphics (e.g., tables, charts, hand-drawn sketches, etc.) in an attempt to explain and simplify what are often technical topics.

82I interpret the Member’s inclusion of the diagram for Variance #7 in this same manner and I do not find it to be an attempt to “manufacture” evidence as asserted but simply to represent his analysis in an accessible way.

83The second matter raised by the Requestor relates to the Member expressly relying on his “own specialized knowledge” (the Requestor’s words) by discussing in the Final Decision the policies for Laneway Housing relative to the proposal for 62 Croft St.

84Ms. Costello notes, at paragraph [48] in the Final Decision, that under the subheading ‘Laneway Housing’, the Member states the following:

“I now turn to laneway housing (technically called laneway suites) …For some of this discussion I depend on Ms. Dexter’s materials and my specialized knowledge.”20

85In Footnote 20 in the Final Decision, he cites the ‘Notice of facts and opinions’ criteria for tribunals in making a decision in a proceeding.

86Ms. Costello contends that this is not a proper or fair use of the powers of judicial notice. She argues that the Member did not state which facts or opinions he took judicial notice of and, therefore, it is not clear how the purported judicial notice impacted his analysis or decision.

87Furthermore, she submits that the Member “improperly” (her term) considered the policy framework related to laneway suites for the subject application through judicial notice.

88While I agree with the Requestor that “the threshold for judicial notice is strict,”¹⁵ I disagree that the Member improperly considered the issue of laneway housing relative to the proposal before him by way of specialized knowledge.

89At paragraph [49] in the Final Decision, Member Yao clearly states that the Application does not use a laneway suite “…as the template and then seek to vary from this template.” He also agrees with Mr. Dales that laneway suites did not form part of the Official Plan and zoning intent in 2017 when the LPAT considered the previous iteration of this application.

90However, the Member follows that by stating that “…they do now,” a signal to the Applicant at the Hearing of his intent to address the Application “wholistically” as required of the Tribunal by the Planning Act.

91Hence, Member Yao’s introduction and use of the colloquial term “big picture” in the Final Decision to describe how he approached the consideration of the proposal and variance requested.

92This ‘approach’ stems from the Member’s consideration of the subject property’s recent history highlighted in the ‘Background’ and ‘Issues and Analysis’ sections of the Final Decision.

93As Member Yao described, the subject lot was created in 2019, after a lengthy hearing in 2017; Mr. Teitelman sold the Lippincott part and retained the Croft portion.

94Although the COA refused the variances sought by the Appellant in November 2023, City Community Planning staff did not attend in opposition but advised the Committee that the proposal “…would result in appropriate intensification of the site,” the term ‘intensification being the operative word of significance for Member Yao.

95At the Hearing, Mr. Dales argued that the proposed development represented ‘infill’ and, as the Member noted in the Final Decision, most of the evidence was concentrated on ss. 4.1.5, 4.1.9, and 4.1.10.

96Mr. Dales also made further arguments throughout his evidence and testimony that the proposal represented “intensification,” asserting that any increase in density was intensification and, therefore, favoured by the Provincial Policy Statement.

97Member Yao simply took the ‘intensification’ argument made by Mr. Dales under consideration within the specific vision of the City’s ‘laneway’ policy direction as background to understand the subject property’s existing and planned context.

98In the Final Decision, the Member clarifies this, stating that “along with other Official Plan amendments, intensification by way of new units on the same lot are part of the general intent and purpose of the Official Plan and zoning by-law and form the planning context.”

99He made the determination that in his view, the proposed approach and variances were contrary to the intent and policy direction as indicated by Council; in other words, the proposal is not intensification and given its context, is too much house for the subject property.

iii. Allowed the prejudicial and irrelevant opinion evidence of Party Wang

100The Requestor asserts that the presiding Member improperly admitted the evidence of Ms. Wang who, according to the Review Request, “…has a long history with the applicant.”¹⁶

101It is my understanding that Ms. Wang, a neighbour who elected Part status in the matter, represented herself at the Hearing. The TLAB’s Rules of Practice and Procedure permit Parties to make submissions in a Proceeding and be a witness and call evidence, provided they comply with all the requirements of Rule 16 pertaining to Parties.

102The Requestor submits that Ms. Wang filed a witness statement (on May 12, 2024) and an amended witness statement (on June 20, 2024) portions of which counsel for the Applicant attempted to strike by way of a Motion, which the Member denied.

103Ms. Costello argues that these statements contained “…personal history between the Applicant and Ms. Wang which is not relevant to this exercise of authority, and her evidence ought not to have been accepted.”¹⁷

104While it appears that the Member accepted Ms. Wang’s submissions, I find no evidence in his Decision and/or reasoning that this information influenced Member Yao’s decision-making process.

105This is supported by the fact that nowhere in the Final Decision is Ms. Wang’s evidence cited or summarized by the Member and I find no foundation for the Requestor’s assertion that this information influenced, negatively, the Member’s perception of the Application.

106Finally, the Review Request also includes an assertion by the Requestor that “the Member demonstrated a reasonably (sic) apprehension of bias (Rule 31.17(b) – breach of natural justice).”¹⁸ This is based on the submission that Member Yao was aware of the subject property and the proposed development before the November 28, 2023 Appeal.

107Ms. Costello contends that in 2018, the Member heard consent and minor variance applications for the property at 1-3 Croft Street, which he approved. The Requestor cites two passages from that December 19, 2018, TLAB Decision, at pages 5 and 8, to suggest that the Member “…drew distinctions between a “vertical” severance, which he approved, and the “horizontal” severance, which was, at the time, being proposed for the subject property and pending an LPAT appeal.”¹⁹

108The Member’s statement at page 8 in that Decision is of particular importance. It is highlighted in the Review Request and recited below in its entirety:

“The City does not wish that individuals on one lot obtain services from other lots nor does it wish to incur costs of new services. This is not the case here, because the Landmark lot is existing; and already enjoys municipal services. However, this reason should not be used to justify the creation of a new through lot through horizontal severance, even if on a lane with full services…This puts 1-3 Croft in a different position from 157 Lippincott (the subject property in this review), now pending before the LPAT.”²⁰

109Given these citations, the Requestor concludes that based on the Member’s opinions expressed in the 1-3 Croft Decision, “…it is evident that the Member did not approach the subject appeal with an open mind.”²¹ (my emphasis added)

110The Requestor submits that since the 1-3 Croft St. Decision reflected the Member’s belief that “horizontal” severances do not represent “good planning,” then Member Yao disagreed with the outcome of the LPAT decision which created the subject property.

111The Requestor concludes, therefore, that Member Yao “… did not come at this appeal (62 Croft St.) with a disinterested, open state of mind.”²²

112Ms. Costello offers a description of the Supreme Court of Canada’s concept of impartiality, adding that “bias denotes a state of mind that is in some ways predisposed to a particular result, or that is closed with regard to particular issues.”

113As a result of the two citations from the 1-3 Croft St. Decision underscored by Ms. Costello, I found it prudent to review that Decision in its entirety.

114In doing so, I’ve determined that two points of clarification are necessary regarding the statement at paragraph [105] above.

115First, the statement, as cited by Ms. Costello, is somewhat misleading. The last sentence in the statement, which I’ve underlined, is actually not part of the citation; rather, it forms a footnote at the bottom of page 8 of that decision. Although perhaps a minor point of clarification, I believe it is, nevertheless, germane to this review.

116Second, in that statement, the Requestor has added a quotation in parentheses after the reference to ‘157 Lippincott’ indicating that that address is the subject property in this review.

117That citation is inaccurate and somewhat disingenuous since the subject of Member Yao’s Decision and this Review Request is 62 Croft St. and not 157 Lippincott.

118What Member Yao actually wrote regarding the subject of ‘horizontal severance’ in his 2018 Decision is the following:

“Laneway housing”, which means all other non-suites, where the laneway house is the main and only dwelling on the lot. The City and HVRA oppose laneway housing and I agree that if a proposal for laneway housing is accompanied by a request for a horizontal severance, this constitutes bad planning.”²³

119Clearly, the Member was speaking about a ‘laneway house’, a very different development than the proposal for the subject property.

120As to the issue of whether the Member demonstrated bias in the Appeal in question, I am not persuaded by Ms. Costello’s arguments. I do not find that Member Yao’s previous opinions in his 2018 Decision relating to Croft Street gave the “…overwhelming Impression that he had closed his mind to critical issues in this appeal.”²⁴

121The argument made by the Requestor that the Member should not have taken on the Hearing assignment for 62 Croft knowing that he had expressed an opinion on the proposed development of the subject property is unconvincing.

122On the contrary, after reviewing his Final Decision and relevant sections of the recordings of all five Hearings days, I believe that Member Yao approached the Application/Appeal with an unbiased state of mind and decided the outcome of the matter on its merits without any perceptible bias.

123Therefore, based on the above, I find no violation of the rules of natural justice and procedural fairness in the presiding Member’s actions or approaches.

Did the Decision-Maker Make Errors of Law or Fact?

124The Review Request purports that the presiding Member made two errors of fact and law which, if not made, would likely have resulted in a different Final Decision and Order.

i. The Member wrongly treated the proposed development as a “laneway suite”

125The Requestor asserts that the Member made an error by considering the proposed development as a ‘laneway suite’ and then evaluating the proposal against the City’s policy and zoning framework for such developments.

126Despite acknowledging how the City classifies laneway suites and accepting facts at the Hearing which established that the proposed development cannot be a laneway suite, the Requestor asserts that Member Yao, nevertheless, evaluated the Application as if it were such a proposal.

127The Review Request cites the following passages from paragraphs 50 and 51 of the Final Decision in this regard:

“laneway suites are now permitted in the zoning by-law under regulation 150.8.60.40 of the Zoning By-law, which among other restrictions, limits suites to a height of 6.3 m and two stories. Moreover, the City’s intent is that laneway suites should be rental units. Along with other Official Plan amendments, intensification (my emphasis) by way of new units on the same lot are part of the general intent and purpose of the Official Plan and zoning by-law and form the planning context.

the proposed massing for 62 Croft must be placed in the planned context of a laneway suite no more than 6.3 m high and no more than two stories. As rental units, these potential suites may possibly be more affordable or near affordable, which this is unlikely to be the case for a private, owner-occupied house at 62 Croft. In my view, the proposed approach and variances are contrary to the intent and planning policy direction and intent as indicated by Council.”

128The Requestor contends that the Member’s decision was “…coloured by his incorrect conclusion that laneway suite policies and regulations applied, and as a result his entire (my emphasis) analysis related to the official plan and zoning by-law test is flawed.”²⁵

129This assertion has been addressed at some length, in the preceding sections in this Review Request under the subheading relating to violations of natural justice and procedural fairness.

130Nevertheless, I will reiterate my findings in this regard. I disagree with the Requestor that the Member did not comply with the enabling statute or with the legal test applicable to the decision-making process as alleged in paragraph 20 in the Review Request.

131Member Yao did apply the four tests as directed by the Planning Act, concentrating primarily on whether the Application maintained the intent of the “cornerstone: section 4.1.5 of the Official Plan.

132As I’ve highlighted in the passages cited by the Requestor in paragraph [119] above, and as discussed in the preceding sections of this Review Request Decision the issue raised by the Requestor relates to the question of “intensification.”

133In considering the matter of ‘intensification’ of the subject property, Member Yao took a “big picture” approach and came to what I consider a ‘comprehensive and thorough’ conclusion, one he noted in his Final Decision:

“Mr. Dales (sic) arguments took the general form of a checking off a “to do” list of items. The (Planning) Act asks me to come to a “big picture” conclusion, one that integrates Council’s competing goals of stability, gradual and sensitive change, the proportionality of lot size and interior space, rear and front yard setbacks, plus a specific vision for laneway suites.”²⁶

134Taking into consideration this broader and more measured approach to the Application before him, the Member concluded that he could not grant the requested variances.

ii. Wrongly interpreted and applied Official Plan Policy 4.1.9

135The Requestor asserts that the presiding Member made a fundamental error by concluding that Policy 4.1.9, which sets out development criteria in the Official Plan for ‘infill’ development on properties that vary from the local lot pattern in terms of lot size, configuration and/or orientation, did not apply in the case of the proposed development.

136On the contrary, the Requestor disagrees, arguing that the proposal is ‘infill development’ on the basis that the proposed development contemplates the construction of a new residential unit on a lot that currently contains a vacant, dilapidated garage within a development area.

137In fact, Ms. Costello submits that since the proposed development contemplates the construction of a new residential unit on a lot that currently contains a vacant, dilapidated garage, the proposed development “…cannot reasonably be characterized as anything but an “infill” development.”²⁷

138Member Yao dealt with the question of whether the development was infill under the subsection entitled ‘Infill’ in the Final Decision. In that subsection, he cites sections 4.1.9 and 4.1.10 of the Official Plan as providing special criteria for infill development and concludes “…I do not find that this development is infill.”

139He then cites Chapter 2, which he notes offers the most detailed discussion on ‘infill’ describing how the Official Plan will accommodate “enhancements, additions and infill housing.”

140Member Yao was clearly alert to the relevant policy sections and criteria dealing with infill. He said so in his Decision. He not only heard but also considered the evidence from the Parties in this regard.

141He noted in his Decision that on the question of ‘intensification’, Mr. Dales made a further argument that any increase in density was “intensification” and therefore favoured by the PPS.

142Mr. Davidson (Harbour Village’s planner) disagreed stating that intensification should be confined to an increase in the number of dwelling units per hectare.

143Although the Member acknowledged that the PPS encourages ‘intensification’, which includes ‘infill’, he found Mr. Davidson’s interpretation more compelling and, in doing so, concluded the following in paragraph [41] in the Decision:

“I do not find Mr. Dales’ infill arguments tenable and accordingly neither s. 4.1.9 nor 4.1.10 of the Official Plan is applicable.”

144He carefully considered the wording of the relevant sections of the Official Plan and concluded that the proposed development did not represent “…a reasonable interpretation of the infill rules.”²⁸

145I find his interpretation of the infill rules to be consistent with the intent of the Official Plan and with the interpretation he employed in 2018, as the following wording in his 1-3 Croft Street Decision would suggest. In that 2018 Decision, the Member wrote:

“The Infill sections in the Official Plan represent policies for exceptional circumstances…These provisions apply to “former non-residential uses such as an industry. . . that were passed over in the first wave of urbanization.”²⁹

146He found that the proposal qualified as infill in his 2018 Decision; he found the proposed development did not meet the interpretation in the 62 Croft Street Decision.

147The Requestor asserts that by failing to apply policy 4.1.9, the decision-maker made an error of law. The Request also asserts that had the Member correctly determined that the proposed development was subject to policy 4.1.9, it is very likely a different decision would have been the result.

148I disagree. The Member did apply the policy based on his consistent interpretation of that policy within the framework of the Official Plan and after considering the evidence presented by the Parties.

149I am also not persuaded that had policy 4.1.9 been applied, the Member would likely have arrived at a different decision.

150Therefore, I do not see an error in law or fact in this regard as asserted by the Requestor.

CONCLUSION

151I have reviewed the Final Decision as a whole and considered it in the context of decision-making by the TLAB.

152The 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.

153Rule 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.

154In 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.

155I find that the Review Request has not provided such compelling reasons which demonstrate that the TLAB violated natural justice or exceeded its jurisdiction in this matter or made errors of law or fact with respect to providing insufficient reasons, manufacturing evidence, permitting prejudicial and irrelevant evidence of a Party, or wrongly applying Official Plan policies incorrectly.

156I quote from a previous decision I rendered in Toronto (City), Long Branch Neighbourhood Association v. Singh:

“A 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.”³⁰

157I find that the presiding Member considered the opinion evidence of both expert land use planners, Mr. Dales for the Applicant, and Mr. Davidson for the Harbord Village Residents’ Association. He also heard evidence from Ms. Dexter and the many Participants and reached a reasonable outcome. I find no flaw in the reasoning or the decision delivered.

158To quote the TLAB Vice-chair Bassios’ Review Request Decision in Toronto (City) v. Krzywucki:

“The 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.”³¹

159Even 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.

160Therefore, 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

161The Review Request is refused; the Final Decision and Order of Member Yao, dated August 1, 2024, is confirmed.

D. Lombardi TLAB Chair, Panel Member

Footnotes

1. 1Niagara River Coalition v. Niagara-on-the-Lake (Town), 2010 ONCA 173; Vincent v. DeGasperis, 2005 CanLII 24263; Poorsina v. Toronto (City), [2015] O.M.B.D. No. 994; Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670; Simon v. Bowie, 2010 ONSC 5989; 521 Hillsdale Avenue East TLAB Review; 1 Croft Street TLAB Decision (18 125238 S53 20 TLAB, 18 125239 S45 20 TLAB, 18 125240 S45 20 TLAB, 18 125241 S45 20 TLAB); r. v. R. (R.D.), ONCA 150; R. v. J.M., 2021 ONCA 150; Jones v. Toronto, 2016 CarswellOnt 16590; Nixon v. Ottawa (City), 2022 CanLII 27711 (ON LT); and, Planning Act, RSO 1990, c. P. 13, Excerpts.
2. 2Roozbuilt Ltd. v. Jamieson, 2002 ONSC 2029, dated April 4, 2022, para. 32.
3. 3TLAB’s Rules of Practice and Procedure, as constituted after December 2, 2020, p. 44.
4. 4Mr. Teitelman’s Review Request for 62 Croft St., dated August 30, 2024, p. 10, para. 32.
5. 5Vincent v. Degasperis, 2005 CanLII 24263 at para. 20.
6. 6Poorsa v. Toronto (City), [2015] O.M.B.D., No. 994, para. 8.
7. 7Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653, para. 682.
8. 8Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, para. 28.
9. 9Plotkine v. Seindenfeld, 2014 ONSC 4157 (Div. Ct.), para. 11-16.
10. 10Simon v. Bowie, 2010 ONSC 5989, 2010 CarswellOnt 10838, para. 15.
11. 11Member Yao’s Final Decision for 62 Croft St., dated August 1, 2024, para. [8].
12. 12Ibid., para. [52].
13. 13Ibid., para. [10].
14. 14Ibid., para. [47]
15. 15Mr. Teitelman’s Review Request for 62 Croft St., dated August 30, 2024, para. 58., p. 14.
16. 16Mr. Teitelman’s Review Request for 62 Croft St., dated August 30, 2024, para. 77, p. 17.
17. 17Ibid., para. 78, p. 18.
18. 18Mr. Teitelman’s Review Request for 62 Croft St., dated August 30, 2024, Issue 5:, p. 15.
19. 19Ibid., para.61, p. 15.
20. 20Ibid., para. 63, p. 15.
21. 21Ibid., para. 64, p. 15.
22. 22Ibid., para. 67, p. 16.
23. 23TLAB Member Yao’s Final Decision and Order for 1 Croft St., dated December 19, 2018, p. 5.
24. 24Mr. Teitelman’s Review Request for 62 Croft St., dated August 30, 2024, para. 68, p. 17.
25. 25Mr. Teitelman’s Review Request for 62 Croft St., dated August 30, 2024, para. 22, p. 8.
26. 26Member Yao’s Final Decision for 62 Croft St., dated August 1, 2024, para. [52].
27. 27Mr. Teitelman’s Review Request, dated August 30, 2024, para. 28, p. 9.
28. 28Member Yao’s Final Decision and Order, dated August 1, 2024, para. [40].
29. 29TLAB Decision for 1-3 Croft Street, dated December 19, 2018, p. 15-16.
30. 30Toronto (City), Long Branch Neighbourhood Association v. Singh, 2023 ONTLAB 128
31. 31Toronto (City) v. Krzywucki, TLAB Review Request Decision, dated September 16, 2024, para. [86].