Suri (Re), 2025 ONTLAB 301

Toronto Local Appeal Body

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

Date: 2025-01-29

24 193241 S45 11 TLAB

Suri (Re), 2025 ONTLAB 301

REVIEW REQUEST ORDER

Issuance Date: January 29, 2025

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): Rahul Suri

Applicant(s): Fluid Living Studio

Property Address: 133 Summerhill Ave

COA File No.: 24 112272 STE 11 MV (A0132/24TEY)

TLAB Case File No.: 24 193241 S45 11 TLAB

Hearing Date(s): November 13, 2024 November 22, 2024

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By: TLAB Chair, D. Lombardi

REGISTERED PARTIES AND PARTICIPANTS:

People Type First Initial. Last Name Representative

Applicant Fluid Living Studio

Appellant R. Suri D. Pateman

Party City of Toronto M. LaFortune S. Messina

Party Summerhill Residents Association M. Schlaepfer

Participant S. Stock

Participant M. Graham

Participant C. Goldie

Participant D. Argo

Participant A. Tsang

Participant G. Theofilopolous

REVIEW REQUEST NATURE AND RULE COMPLIANCE TO INITIATE

1On July 17, 2024, the Toronto and East York Panel of the City of Toronto (City) Committee of Adjustment (COA) refused three (3) variances to alter the existing two-and-one-half-storey townhouse dwelling at 133 Summerhill Avenue (subject property).

2The Applicant, Rahul Suri, proposed to construct a rear three-storey addition with rear ground-level stairs (the existing rear detached garage will be maintained and unaltered).

3Mr. Suri appealed the COA’s decision to the Toronto Local Appeal Body (TLAB) which heard the Appeal matter over two (2) Hearing Days - November 13, 2024, and November 22, 2024.

4Following the Proceedings, the presiding TLAB Panel Member, Trevor Kezwer (presiding Member), issued a Final Decision and Order (Final Decision) on November 25, 2024, allowing the Appeal and authorizing the requested variances.

5On December 15, 2024, Matthius Schlaepfer, on behalf of the Summerhill Residents Association (SRA), the Requestor and a Party to the Proceedings, filed a request for a review (Review Request) of Member Kezwer’s Final Decision as permitted under Rule 31 of the TLAB’s Rules of Practice and Procedure (Rules).

6Having regard to Rule 31.17, above, the SRA specifically cites as a basis for consideration paragraphs 31.17 a), b) and c) in the Review Request:

• The TLAB violated the rules of natural justice and procedural fairness;

• The Final Decision contains several significant errors of law and fact such that the TLAB would likely have reached a different decision had such errors not been made; and

• The TLAB acted outside of its jurisdiction.

7The Review Request is sufficiently clear to support allegations so as to permit each to be considered in turn. There are overlaps in the stated grounds and it is appropriate to consider those of associated importance.

8Rule 31.16 of the TLAB’s Rules outlines the three (3) available remedies to the reviewer (the TLAB Chair or designate) on a request for a review of a TLAB final decision and order. The Chair may do the following pursuant to the Rule:

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 Panel Member.

9The TLAB has determined that SRA’s Review Request filing of December 15, 2024, is complete, and is compliant with the TLAB’s Rules. It consists of some five-hundred-and-sixty-eight (568) pages divided into two separate documents.

10Document 1 contains the ‘Overview of the Review Request’ outlining the basis for the request, as well as various attachments.

11Document 2 includes jurisprudence in the form of six (6) TLAB and Ontario Divisional Court decisions cited by the SRA. This latter document also includes an ‘Appendix’ containing a copy of the SRA’s partial closing statement, read by Matthias Schlaepfer at the end of Hearing Day 2 on November 22, 2024.

12The SRA requests that the TLAB cancel Member Kezwer’s Final Decision dated November 25, 2024, with reasons, and reinstate the decision issued by the Committee of Adjustment dated July 17, 2024.

13In requesting this remedy, the SRA contends that “…there is compelling evidence regarding the violation of procedural fairness and natural justice, combined with the flagrant disregard for the new cornerstone policies under OPA 320,(sic) calls for an extraordinary remedy – a reversal of the Final Decision, since it calls into question the impartiality of the TLAB itself.”¹

14It is important to note that while the requested remedy invokes Rule 31.16 c) of the Rules, as stated above, there is an important caveat to the remedy sought by the SRA.

15The SRA asks that the Member’s Final Decision be cancelled without holding a new ‘de novo’ hearing, an option not provided for in options available under Rule 31.16 c).

16In proposing this adjunctive modification to the Rule, the SRA argues that “…no useful purpose would be served by a de novo Hearing in front of a different TLAB Member since, based on the evidence, a different outcome is pre-determined.⁴³” ² (my emphasis)

17Footnote ‘43’ in the highlighted quotation above, refers to ‘SRA Documents Part 1 – Exhibits 2, 7-12’, which is the SRA’s Party Disclosure filing submitted on October 7, 2024.

18Exhibits 2 and 7 – 12 in the footnote refer to various charts and mapping prepared by the SRA illustrating information such as prevailing building form, COA density approvals for the past 10 years, the Geographic Neighbourhood and Immediate Context, COA approvals, etc., regarding the subject application.

19This Disclosure document was filed in response to the Appellant’s submissions and was intended to be considered as evidence by the SRA and discussed by Mr. Schlaepfer during the Appeal Proceedings.

20The SRA’s supposition that “a different outcome is pre-determined,” as stated by Mr. Schlaepfer in the Review Request, is, I believe, rather presumptuous and presupposes the outcome of this review before it has even been undertaken.

21The assertion by the SRA that no useful purpose would be served by holding a de novo Hearing before a different TLAB Member is rather dismissive of the very well-established TLAB review request process as outlined in its Rules and a troubling statement to this Tribunal.

22For perspective, Rule 31 of the TLAB’s Rules of Practice and Procedure was last amended in 2020 after much feedback from the public and following discussion amongst Tribunal Members. The Rule was adopted by the TLAB at its Business Meeting in December 2020, and it currently forms a significant part of the TLAB’s Rules.

23Rule 31.16 provides the Chair (or Chair’s designate) with three, and only three possible options to consider 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. Those options are stated above, in paragraph [7].

24Those are the options or remedies available to this Reviewer and are the only ones that will be considered in this Review Request Decision irrespective of the SRA’s requested remedy and inference.

25Rules 31.10 and 31.14 permit a Response to Review Request (Response) and a Reply to Response to Review Request (Reply to Response) with requisite due dates for filing and service on Parties and the TLAB.

26The Appellant’s legal representative, Douglas Pateman (Kagan, Shastri, DeMelo, Winer, Park), filed a Response to Review Request, on behalf of Mr. Suri, on January 3, 2025.

27In his Response, Mr. Pateman submits that the allegations put forward by the SRA are without merit, the Review Request is an attempt to re-litigate the issues already fully and fairly decided by Member Kezwer, and the remedy in the TLAB’s Rules to cancel the Final Decision “…would undermine the intent and purpose of the entire body.”³

28Mr. Suri submits that the TLAB should confirm the November 25, 2024, Final Decision and dismiss the Review Request.

29On January 7, 2025, Matthias Schlaepfer, the SRA’s authorized representative, filed a Reply to the Appellant’s Response (Reply) on behalf of the Association. In the Reply, he offers what I would characterize as general retorts to the Response, such as “The Appellant remains silent on…” or “The Appellant does not dispute…” to the grounds asserted by Mr. Pateman.

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

30Rule 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’).

31These grounds are the only basis upon which an Appeal Decision may be set aside and a new Hearing ordered.

32Before 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.

33It 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.

34A Member’s decision is based on that Member’s discretionary perception of the evidence and relevant considerations.

35It is with these considerations in mind that I have read and reread the Member’s Final Decision and Order, the Review Request documents, the submissions filed in this matter as to the main TLAB hearing events, and the Response and Reply to Review Request, above cited. Additionally, I have reviewed the Digital Audio Recordings (DAR) of the two Hearing Days.

36I have also attended on the subject site and the surrounding area.

Review Request Grounds

37It 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.

38A Review is not, as above stated, a re-hearing of the matter to consider whether the review might have come to a different conclusion. It is also not an invitation to simply challenge a decision with which one disagrees.

39On the contrary, it is a canvass as to whether any of the statutory grounds afforded a review under the Statutory Powers Procedure Act (SPPA) are established.

40The TLAB Rules clearly envisage that there must be a demonstrable error in the categories identified that warrants relief of the variety and to the standards provided for in Rule 31.

41In this regard, as the Divisional Court held in Roozbuilt Ltd. V. Jamieson, a decision on a Leave to Appeal Motion regarding a TLAB Review Request 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 application play a significant role in the TLAB decision making process.” ⁴

42In the ‘Overview of Review Request’, the Requestor sets out the basis for the Request pursuant to Rule 31.17 (a), (b) and (c) and the rationale as to why the SRA asks that the presiding Member’s Final Decision of November 25, 2024, be reviewed.

43The full consideration must be stated and applied which is as follows: namely, whether the presiding Member:

“31.17 a) acted outside of its jurisdiction.”

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

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

44To reiterate, Rule 31.16 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.”⁵

45The Requestor asserts that Member Kezwer, in the Final Decision:

a) Violated the rules of natural justice and procedural fairness by presenting an analysis of the statutory tests under Section 45(1) of the Planning Act (Four Tests) that relies exclusively on the witness statement of the Appellant’s expert witness, Martin Rendl, a document which the SRA asserts was prepared prior to the Hearing and from which most of the text “is directly copied and pasted.”

b) Made fundamental errors of fact and law concerning policies on the role of density and the definition of prevailing character, meaning most frequently occurring or existing in substantial numbers, introduced through Official Plan Amendment 320 (OPA 320); and

c) Acted outside of the TLAB’s jurisdiction by approving the variance requested for the reduced soft landscaping ratio, which relies on property encroachments, in the absence of “…explicit assessment (by Mr. Rendl) whether it is minor and in the absence of any evidence on the reasons for the City’s acceptance of the reduction by a witness who could be cross-examined.”⁶

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

46Although I find the Requestor’s Review Request thorough and detailed in providing evidence to support assertions that the decision-maker violated the grounds outlined in Rule 31.17 under sections a), b) and c), the reasons advanced are not easily distinguishable from each other, overlapping at times throughout the document.

47The Requestor overlaps the reasons and evidence amongst Sections a), b) and c), which tends to occur throughout the Review Request, and which makes the exercise somewhat more challenging to undertake for the Reviewer.

48Regardless of this formatting anomaly, I will proceed to undertake the requested review of Member Kezwer’s Final Decision in the order and manner outlined in SRA’s Review Request, starting with the question of whether the decision-maker violated the rules of natural justice and procedural fairness (31.17 b).

49As a primer, I note that in 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

50Similarly, 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 the opportunity to present their case fully and fairly and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.⁸

51Regarding the case at hand, the Requestor broadly asserts that Member Kezwer, “…lifted directly from the Witness Statement of Mr. Rendl…”⁹ much of the text and arguments found in the Final Decision. This, the Requestor contends resulted in the decision-maker substituting “…Mr. Rendl’s opinions for his own independent verification (my emphasis) that the three Variances meet the Four Tests.”¹⁰

52The SRA asserts that resulted in either bias or, at the very least, the reasonable apprehension of bias by the decision-maker and making the outcome in the Final Decision ‘questionable’.

53This assertion of ‘bias or the apprehension of bias’ on Member Kezwer’s part, both throughout the Proceedings and in his analysis of the four statutory tests in the Final Decision, appears as a common thread throughout the Review Request.

54The first instance in the Review Request of the allegation of the possible apprehension of bias by the decision-maker is found at paragraph 16 on page 5 of the Review Request. There, Mr. Schlaepfer states the following:

“The views of the SRA and those of the Participants are absent in his analysis of the Four Tests, which consists almost entirely of a litany of “Mr. Rendl opined…and I agree with him on this matter” without any independent reasoning – strongly indicating a reasonable apprehension of bias.” (emphasis added)

55In the prior paragraph of the SRA’s Review Request, Mr. Schlaepfer makes the allegation that much of the second half of the Final Decision, or what he describes as the ‘core’ of the Decision, consists of some fifty-two (52) paragraphs (43% of the entire Decision) lifted directly from Mr. Rendl’s Expert Witness Statement.¹¹

56The Requestor further cites eleven (11) additional paragraphs from the Final Decision that he alleges are “…texts directly plagiarized (my emphasis) word-for-word without any attribution or quotation marks from Mr. Rendl’s Witness Statement.”¹²

57Finally, the Requestor submits that while thirty-nine (39) paragraphs of Mr. Schlaepfer’s Closing Statement on behalf of the SRA are “devoted exclusively to a detailed analysis and summary conclusions of the four tests,” none of these arguments and facts were referred to, considered, or rejected by Member Kezwer in his Final Decision.

58A reference is made in the Review Request to an 80-minute cross-examination of Mr. Rendl by Mr. Schlaepfer. The assertion made is that Mr. Schlaepfer’s questioning of Mr. Rendl “invalidated” (the Requestor’s term) significant parts of his testimony but that the Final Decision contained “not a word about what happened in my (Mr. Schlaepfer’s) cross-examination.” This, the Requestor alleges, indicates a reasonable apprehension of bias.

59The Requestor cites the Supreme Court Decision of Wewaykum Indian Band v. Canada (Wewaykum), as a leading case confirming the review standard related to a reasonable apprehension of bias.

60The opening line in that case cited by the SRA, is as follows:

“Public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so…The question is what would an informed, reasonable and right-minded person, viewing the matter realistically and practically, and having thought the matter through, conclude…”¹³

61The Review Request goes on to state that the Supreme Court decision in Wewaykum defines the apprehension of bias impartially, as follows:

“The essence of impartiality lies in the requirement of the judge to approach the case to be adjudicated with an open mind. Conversely, bias or prejudice has been defined as a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case.”¹⁴

62The SRA asserts that by simply copying and pasting large parts of Mr. Rendl’s Expert Witness Statement, Member Kezwer did not perform a critical analysis of the Four Tests with impartiality, an open mind, and independent reasoning and, therefore, engaged in a “serious violation of procedural fairness.”

63Conversely, Mr. Pateman, in his Response, argues that the decision-maker’s conduct during the Proceedings and his analysis and findings in his Final Decision illustrate neither bias nor a reasonable apprehension of bias, as asserted by the SRA.

64Additionally, Mr. Pateman argues that the decision-maker did not “…stray from the typical procedure of a TLAB hearing,” and that within the Final Decision itself, all of the SRA’s submissions are referred to and accurately and adequately addressed.

65Finally, he maintains that the decision-maker preferred the evidence of one litigant (the Appellant and his expert planner) over the absence of evidence to the contrary from a Party (SRA) in opposition to the application.

66I agree with the Responder, Mr. Pateman. I do not find that Member Kezwer violated the principles of natural justice or procedural fairness in concluding as he did in the Final Decision.

67After thoroughly reading and re-reading the November 25, 2024, Final Decision, Mr. Rendl’s Expert Witness Statement and Document Disclosure, I find no direct and demonstrable evidence of “word-for-word” plagiarism by Member Kezwer as alleged by Mr. Schlaepfer and the SRA.

68I find both the assertion of a reasonable apprehension of bias on Member Kezwer's behalf and the allegation of plagiarism to be rather serious and troubling accusations.

69In the Final Decision, Member Kezwer clearly and deliberately analyzes the requested variances by applying the four statutory planning tests. He references the City’s Official Plan (various Policies including 4.1.5) and reviews the variances against the general intent and purpose of the Zoning By-law, employing planning language that is commonly used in such analyses.

70The fact that this language is similar to that that may have been employed by Mr. Rendl is not ‘plagiarism.’ Rather, it is Member Kezwer applying the requisite planning tests and using the correct planning nomenclature also found in the Official Plan and City Planning staff reports.

71It is also commonly found and used in a similar fashion and application, by other TLAB Members in many final decisions and orders. Tribunal Members often refer to written submissions filed with the TLAB, whether those are expert planning witness statements, party disclosure, or party’s or participant’s statements, as source material to accurately quote or replicate parts of relevant evidence in decisions.

72I find the allegation of ‘plagiarism’ to be a high bar to meet and I am not prepared to make that finding in this Review Request decision. I also do not find any evidence that Member Kezwer substituted Mr. Rend’s opinions for his own in the Final Decision.

73As to the issue raised by Mr. Schlaepfer in paragraph 16 of the Review Request 16) that “…none of the arguments and facts advances in my (Mr. Schlaepfer’s) analysis have been referred to, considered, or even explicitly rejected by Member Kezwer in his analysis…,”¹⁵ and that “…the views of the SRA and those of the Participants are absent in his analysis of the Four Tests…” I find those assertions to be unfounded.

74There are many examples throughout the Final Decision where matters identified in the 39 paragraphs in the SRA’s Closing Statement are referred to by the decision-maker, starting at paragraph 18 and extending to paragraph 36. The totality of these paragraphs represents approximately four pages of Member Kezwer’s Final Decision.

75As to the Requestor’s assertions that “not a word about what happened” in the cross-examination of Mr. Rendl, which Mr. Schlaepfer contends lasted some ‘80 minutes’ and “invalidated significant parts of Mr. Rendl’s testimony,” was included in the analysis provided by Member Kezwer in his Final Decision, I find that not to be the case.

76I note that in the Final Decision, under the subheading b. Day 2, which includes eleven (11) paragraphs, between paragraphs 6 and 58, many quite lengthy, Member Kezwer not only outlines Mr. Schlaepfer’s Closing Statement but also discusses Mr. Schlaepfer’s cross-examination of the Appellant's expert planning witness.

77Finally, the Requestor asserts that the presiding Panel Member “interrupted” Mr. Schlaepfers when he was providing his Opening Statement, directing him “…to stop criticizing Mr. Rendl’s planning report…”

78Generally speaking, an opening statement by a Party or their authorized representative at the commencement of TLAB is intended to provide the hearing Officer with an introduction to the Party’s position and help to focus the hearing that follows.

79Opening Statements are useful to determine such matters as how many witnesses will be called, the nature of the evidence and, most importantly, what the issues are.

80Conversely, an Opening Statement is not intended to provide a Party an opportunity to offer testimony or be critical of an expert witness. An Opening Statement is also not an opportunity to criticize the application or the evidence to be presented by a witness; that is the purpose of cross-examination.

81The SRA, through Mr. Schlaepfer, were permitted by the presiding Member to fully complete an eighty (80) minute cross-examination of Mr. Rendl on Hearing Day 1 (DAR Time-stamped starting @ 3:32:48).

82I agree with Mr. Pateman that Member Kezwer was apprised of the facts and submissions before him, he made a meaningful attempt to ensure all individuals and their arguments were heard during the Proceedings, and each was afforded the full opportunity to do so.

83I also agree that the decision-maker appropriately weighed Mr. Rendl’s evidence, assessed the SRA’s submissions and those of the Participants and concluded that the variances sought should be authorized.

84In its Reply to Response by Appellant to Review Request, the SRA doubles down on this assertion, arguing that the Appellant “…remains silent on and does not dispute Member Kezwer’s improper intervention during the SRA Opening Statement.”

85After reviewing the Digital Audio Recording (DAR) of Hearing Day 1, it is clear that the presiding Member’s interruption of Mr. Schlaepfer’s Opening Statement was not ‘improper’ as asserted in the SRA’s Reply. Rather, I find that it was a proper and polite interjection by Member Kezwer and was necessary to explain to Mr. Schlaepfer the purpose of an opening statement at a TLAB Hearing.

86The incident in question occurred during the early part of Hearing Day 1 (DAR Time-stamped @ 30:40). At that point, the presiding Panel Member interjected during Mr. Schlaepfer’s Opening statement to explain that an opening statement should provide the SRA’s position on the application and the general aspects of what evidence the TLAB will hear from them.

87During his explanation, Member Kezwer also stated that a Party’s opening statement is not the time to provide a critical analysis of Mr. Rendl’s Expert Witness Statement and that the SRA will have an opportunity to test the Appellant’s expert witness’ evidence on cross-examination.

88In response, Mr. Schlaepfer indicated to the presiding Member that he understood and then agreed to hold his analysis of Mr. Rendl’s evidence until he had an opportunity to cross-examine the witness (DAR Time-stamped 31:16).

89I note that Member Kezwer allowed Mr. Schlaepfer to fully complete his Opening Statement without any further interruptions from the presiding Member (Mr. Schlaepfer concluded his remarks @ DAR Time-stamped 33:34).

90Given the above, I do not find that the presiding Member treated the SRA any differently than the Appellant when providing Opening Statements nor do I believe that the presiding Member exhibited any bias.

91With regard to the matter of preferring one party’s evidence over the other, the SRA makes the following assertion in their Review Request:

“While an adjudicator, of course, is free to prefer the evidence of one party over another, it is illogical to uncritically adopt contested evidence that had been invalidated in significant parts during cross-examination. Even in cases where there is no opposing testimony, the adjudicator must still satisfy himself that the Appellant’s evidence meets the Four Tests, supported by intelligent reasoning that relates to the proper statutory scheme, the submissions of the Parties and Participants, the oral testimonies, the past relevant TLAB decisions – beyond simply reciting ‘Mr. Rendl opined…and I agree with him on this matter.’”¹⁶

92I disagree with the SRA in this regard. I do not find that Member Kezwer “uncritically adopted contested evidence that had been invalidated in significant parts during cross-examination.” This is Mr. Schlaepfer’s appraisal of what occurred.

93The Member heard evidence from the only witness who he qualified at the Hearing to provide expert opinion in the area of land use planning, chose to prefer that evidence and to adopt it, and then reflected that in the Final Decision through a thorough analysis of the facts grounded in the evidence provided.

94I concur with the Appellant that the SRA was afforded its opportunity to make opening and closing submissions, cross-examine each witness, including Participants, and ask questions of the presiding Member. It was the SRA’s sole decision to not put forward evidence regarding the request variances under the four tests of the Planning Act.

95As to the assertion that Member Kezwer was biased in his findings, the Member found that Mr. Rendl clearly fulfilled his role as an independent expert before the tribunal and that his opinion evidence “…was fair, objective and non-partisan…”

96He also found Mr. Rendl to be “…diligent, thoughtful, and professional in fulfilling his role before the Tribunal”¹⁷ and that Mr. Rendl was fulfilling his professional obligations even though Mr. Schlaepfer did not agree with his analysis or conclusions.

97As a reminder, the task of the TLAB Member is to address the variances sought in the Application/Appeal and resolve and report them out providing reasons based upon an application of relevant policy and tests in a manner consistent with available evidence, engaged principles of administrative jurisprudence, the application of public interest goals and the values of good community planning.

98That task may be, and often does involve the application of discretionary, subjective judgement in the area of land use planning. Where a Member considers and evaluates the variances requested in the manner described, I find that the fairness principle is respected and it is not a breach thereof, certainly where it is undisputed that all the evidence was heard, and where the considerations demonstrated in the reasons are respectful of the task as defined.

99Therefore, in the case at hand, I do not find that the decision-maker violated the principles of natural justice or procedural fairness. I also do not find that Member Kezwer’s conduct was, in any way biased, or that his conduct meets the threshold of an apprehension of bias.

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

100It is important that the reviewer apply the language of the Rule and not enter into a set of considerations that depart from the responsibilities of the Review. A Review is not, as above stated, a rehearing of the matter with a view to considering whether the reviewer might have come to a different conclusion. It is not a re-argument of the case: rather, it is a canvas as to whether any of the statutory grounds afforded a review under the Statutory Powers Procedure Act are established.

101In this regard, the full consideration must be stated and applied which is as follows; namely, whether the Member:

“c) made an error of law or fact which would likely have resulted in a different order or decision;” (emphasis added)

102This standard implies that the reviewer must not only be apprised by the Review Request of a clear error of law or factual matter of significance but also be satisfied that if the error occurred it would likely have led to a different decision.

103In the ‘Overview of Review Request’ section of the Review Request, the SRA asserts that the decision-maker accepted Mr. Rendl’s expert opinion evidence even though that evidence failed to recognize the cornerstone policy of 4.1.5 in the City Official Plan or address the definition of ‘prevailing’ contained in that Official Plan Policy.

104The SRA alleges that Mr. Rendl “deliberately hid” Policy 4.1.5 in his Expert Witness Statement and that Member Kezwer ignored this and simply accepted Mr. Rendl’s opinion in this regard in the Final Decision.

105Official Plan 4.1.5 c) requires that “Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographical neighbourhood, including in particular: prevailing heights, massing, scale, density and dwelling type of nearby residential properties.”

106Regarding Policy 4.1.5 c), Mr. Schlaepfer submits that Mr. Rendl, in replicating in his Expert Witness Statement the paragraph above from the Official Plan “…dropped the crucial word ‘density’ from the sentence”¹⁸ and that the presiding Member accepted Mr. Rendl’s testimony.

107This, the SRA asserts, is an error of law which would have led to a different outcome since Mr. Schlaepfer concludes that the proposal does not respect the prevailing (emphasis added) density.

108The issue of ‘density’ and whether the proposed ‘Floor Space Index (FSI)’ is the ‘prevailing’ or most frequently occurring form of development in the neighbourhood appears to be the key question at issue for the SRA.

109It forms the basis of their argument that Mr. Rendl provided no evidence about the ‘prevailing’ density or ‘prevailing’ building type, in accordance with specific provisions in Policy 4.1.5, introduced through 2018 LPAT-approved Official Plan Amendment 320 (OPA 320).

110The Review Request alleges that Mr. Rendl “deceived” (the SRA’s term) the Tribunal by “…hiding the central policies of OPA 320…”¹⁹ and asserts that the decision-maker made a fundamental error of law in his Final Decision by agreeing with Mr. Rendl and concluding “…that the proposed variances meet the general intent and purpose of the various criteria outlined in policy 4.1.5.”²⁰

111Mr. Schlaepfer contends that in his Closing Submission, at the end of Hearing Day 2, he cited several TLAB and Divisional Court decisions dealing with similar issues of relevance to those raised by the SRA, for the presiding Member’s consideration.

112In Mr. Schlaepfer’s opinion, the decisions cited addressed relevant and analogous issues including the role of FSI in preventing ‘overdevelopment’, whether density impacts the desirability of a proposal as appropriate development in a neighbourhood, and the importance of precedents in planning considerations designed to protect the public interest.

113In rebuttal, Mr. Pateman argues in his Response that the Appellant’s planning witness provided an expert analysis based on a comprehensive review of the ‘Geographic Neighbourhood’ or Neighbourhood Study Area, which the Official Plan directs planners to establish to assess neighbourhood character.

114He also contends that Mr. Rendl provided his full opinion on the relevant policies in the Official Plan including Policy 4.1.5, which the SRA characterizes as the Official Plan’s “cornerstone policy,” as well as the aforementioned OPA 320.

115Mr. Pateman submits that Mr. Rendl made no mistakes in providing the decision-maker with the prevailing building type in the neighbourhood when determining the viability of the variances and the compatibility of the proposal in its context. He also contends that Mr. Rendl established a supportable range of FSIs within the Geographic Neighbourhood that Member Kezwer accurately reasoned as to the nature of the prevailing form and character of the neighbourhood in arriving at his decision.

116Let me address the SRA’s assertion that by simply adopting sections of Mr. Rendl’s “deficient” Expert Witness Statement, Member Kezwer “failed” to recognize cornerstone OP Policy 4.1.5.

117I find that Mr. Rendl’s Expert Witness Statement was neither deficient regarding Policy 4.1.5 nor was this policy or its analysis “deliberately hidden” by him, as alleged in the Review Request.

118I’ve reviewed the requisite documents filed in the appeal, including Mr. Rendl’s EWS and the DAR recordings of the two Hearing Days and I agree with Mr. Pateman that Mr. Rendl provided his full opinion on OP Policy 4.1.5 as evidenced, first, in paragraph 88 and then in paragraphs 110 through 113 in the EWS.

119The analysis was not, in fact, “deliberately hidden” by Mr. Rendl, as asserted. On the contrary, he provides the subheading, Policy 4.1.5, starting at paragraph 112, in his Expert Witness Statement and then proceeds to discuss it.

120Furthermore, Mr. Rendl augmented his opinions regarding this particular policy through analysis via his testimony during Hearing Day 1.

121I also do not agree with the SRA’s argument in the Review Request that Mr. Rendl failed to provide evidence regarding the prevailing density and building type of the Geographic Neighbourhood and that Member Kezwer had no basis to agree with Mr. Rendl in this regard.

122Regarding the policies of OPA 320, Member Kezwer cites paragraph 43 in Mr. Rendl’s Expert Witness Statement where OPA 320 is specifically mentioned. It contains the following passage:

“[45] Mr. Rendl noted in his expert report at paragraph 43 that:

Geographic Neighbourhood is a planning construct that was introduced into the Neighbourhoods policies by Official Plan Amendment 320…A resident may delineate the area of the “actual” neighbourhood in a different manner than a planner who for planning reasons follows the direction of Policy 4.1.5 to delineate a Geographic Neighbourhood.”²¹

123In the next paragraph in his Final Decision, the Member goes on to state that Mr. Rendl’s opinion, above recited, “…is important because Mr. Schlaepfer argued forcefully that Mr. Rendl incorrectly ignored OPA 320 in his opinion and that due to large infill developments in the broader context, the immediate context should be given greater priority. Mr. Rendl provided a different opinion on the matter, and I accepted Mr. Rendl’s opinion (my emphasis).”

124Member Kezwer outlines Mr. Rendl’s “different opinion” in subsequent paragraphs in the Final Decision, concluding his thoughts with the statement: “I accept Mr. Rendl’s opinion that there is no significant difference between the immediate and broader contexts.” The decision-maker has the discretion to do so having heard all the evidence.

125The decision-maker also spends seven (7) paragraphs of varying lengths under the subheading – Arguments Raised by Mr. Schlaepfer – explaining why he preferred Mr. Rendl’s expert planning opinion to that of SRA Representative (Mr.) Schlaepfer.

126Although Mr. Rendl may not have highlighted the word ‘prevailing’ as utilized in Policy 4.1.5, he, nevertheless, did provide a detailed analysis of how the proposed variances maintain the general intent and purpose of the Official Plan through a thorough discussion of the relevant OP policy section including Chapter’s 2, 3, and 4, focussing specifically on Policies 2.3 and 4.1.5 (see para. 81 in the EWS).

127There is no dispute that the Official Plan must be read in its entirety (OP, Chapter One, Section 1.4) or that it is to be given a large, liberal interpretation best suited to express its intended direction, rather than being seen as a prescriptive instrument with defined performance standards or demanding of the use of a strict ‘constructionists’’ approach.

128OPA 320 was intended as a refinement of the policy direction of compatibility assessment within the ‘Neighbourhoods’ section of the Official Plan providing greater specificity in assessment criterion in respect of evaluating whether a proposal ‘respects and reinforces’ the physical character of the area. That assessment is to include both the Geographic Neighbourhood and Immediate Context.

129OPA 320 interjected into the wording of the Official Plan, particularly in section 4.1.5 (described as the compatibility evaluation criteria for development projects in Neighbourhoods) greater specificity on matters of the relevant geography of the locality of the proposed development and the descriptive ‘prevailing’ assessment criteria of certain defined physical character attributes.

130Mr. Rendl’s interpretation of Official Plan policy was somewhat broader than that offered by the SRA, asking him to determine whether in the geographic and neighbourhood context, having regard to the specific words of the Official Plan, the requested variances, specifically the FSI variance, further City Council’s overall objectives.

131In short, the exercise was not to determine whether there are a few comparables to what was being proposed but, rather, a consideration of the total neighbourhood policy context.

132Mr. Rendl’s opinion was that the FSI requested by the Appellant (and approved by the TLAB) is demonstrably consistent with the character of the Geographic Neighbourhood, noting that the Official Plan requires that development “…in established neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood” and ‘fit’ the neighbourhood character.

133In the Final Decision, Member Kezwer devotes nine (9) pages, or just over a third of the entire decision, to providing his comprehensive findings regarding the requested variances and the four statutory planning tests.

134Starting at paragraph [80] of the Final Decision, he addresses whether the three variances maintain the general intent and purpose of the Zoning By-law based on the evidence provided and the testimony heard.

135Of the three variances sought, Member Kezwer devoted the most effort to discussing Variance #3 – Floor Space Index in the Final Decision.

136In paragraph [99], the Member properly identifies the general intent and purpose of FSI as regulating the amount of floor area in a building as a ratio to the area of the lot on which the building is located and notes that FSI is one factor affecting the bulk and massing of a building.

137It is commonly accepted that FSI works with other performance standards like building height, setbacks, and lot coverage to shape the amount of development on a lot.

138Member Kezwer notes that Mr. Rendl’s opinion is that the requested 1.59 FSI resulting from the proposed addition to the existing dwelling is a “modest increase to the townhouse’s existing floor area and is within the range of other FSI approvals for dwellings located in the Geographic Neighbourhood.”

139He agreed with Mr. Rendl that focusing on the FSI variance in a quantitative manner is not an appropriate type of planning analysis in this case and listed the reasons for that position. (see paragraphs [104] to [107] in the Final Decision).

140Member Kezwer agreed with Mr. Rendl that the FSI variance meets the general intent and purpose of the Zoning By-law and that the townhouse forms part of the area’s physical character, along with the many homes built in the same period also in the absence of the zoning standards and regulations the City enacted several decades later and which remain in place.

141Although the SRA (through Mr. Schlaepfer) took issue with this assessment, the decision-maker accepted Mr. Rendl’s opinion that a strict interpretation of FSI as advanced by the SRA limits the planning analysis to a quantitative outcome.

142The Member agreed with Mr. Rendl that assessing the planning merits of a proposal that was constructed decades prior to the FSI in place was a flawed approach, as the Official Plan directs that new development ‘fit’ within the existing physical character of the neighbourhood.

143The general expectation of the Official Plan, as seen in the preamble to Policy 4.1.5, is that physical change to established neighbourhoods must be sensitive, gradual, and ‘fit’ the existing character. A quantitative analysis alongside a more comparative quantitative can add an additional perspective to the question of ‘fit’.

144The question raised by this approach would be whether the combined features of the proposal can still ‘fit’ the neighbourhood when it is not the ‘prevailing’ FSI. In other words, is it feasible that the proposal fits the context of the neighbourhood well enough that the variables are supportable and justifiable on the basis of the proposed built form?

145Mr. Rendl defined a Geographic Neighbourhood to assess general physical character but what was centrally at issue was whether the proposal was ‘materially consistent’ with the prevailing physical character of the properties in both the broader and immediate contexts.

146Policy 4.1.5 restricts the determination of material consistency with the prevailing physical character to those physical characteristics listed in the policy, one of which is density. In my opinion, the density of the proposal was the crux of the matter.

147Mr. Rendl addressed the issue of density and made the case, and the decision-maker agreed with that assessment finding that the FSI variance met the general intent and purpose of the Zoning By-law.

148Again, the decision-maker preferred the opinion evidence provided by the expert planning witness, Mr. Rendl, over the analysis and conclusions presented by Mr. Schlaepfer in his Opening and Closing Statement on behalf of the SRA. The matter of weight given to the opinion evidence, without notice, is a matter of discretion afforded to the presiding Panel Member.

149That discretion is not, however, unrestricted. Discretion must be exercised with due regard to the evidence, be described, and cannot be perverse; it is not unbridled or unfettered as that is anathema to the civil system of justice premised on reason, factual circumstances, and the Rule of Law.

150In administrative law, the weighing of evidence is remitted to the trier of fact. It is that individual who is charged with the broad responsibility to advance the public interest by hearing opinion evidence and applying law and policy and own experience to matters for dispute resolution. To accomplish that, the Member must be alert to the issues, fairly listen to all ‘sides’ and address issues within the statutory framework within which the appeal is advanced.

151A 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 pro and con and having made his own observations, the Member is entitled to formulate his own opinion on acceptability or disagreement.

152Moreover, 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.

153To quote former TLAB Chair Ian Lord on the subject, “It is often said that decision writing does not require a punctilious review and recital of every fact or kernel of evidence or that every stop on a road to a conclusion must be wrapped in detailed support. On the other hand, a decision must reflect a suitable basis for its conclusions taking into consideration relevant considerations, discarding the irrelevant and applying the law and policy made germane to the tribunal’s mandate, including its own deliberations.”

154Member Kezwer accomplished this in arriving at the conclusions in the Final Decision.

155Based on the analysis above, I do not find that the TLAB erred in law or fact in accepting Mr. Rendl’s opinion evidence, misinterpreting OP Policy 4.1.5 and failing to acknowledge the governing statutory scheme established by OPA 320, and accepting Mr. Rendl’s opinion that the proposed FSI was within the range of densities in the Geographic Neighbourhood.

156If I am wrong, and the Tribunal did err with respect to the information it considered or the analysis it undertook, there is no indication that such an error would likely have led it to a different conclusion.

Did the Tribunal Act Outside of Its Jurisdiction?

157In the Review Request, the SRA contends that the TLAB acted outside its jurisdiction by approving Variance #1, which requests a reduction in the soft landscaping ratio which would, also, rely on property encroachments, according to the SRA.

158The SRA submits that the decision-maker approved this variance “…in the absence of Mr. Rendl’s explicit assessment whether it is minor, and in the absence of any evidence on the reasons for the City’s acceptance of the reduction by a witness who could be cross-examined.”²²

159It further contends that the Appellant “…continues to seek refuge behind a zoning examiner but does not dispute that the minimum soft landscaping area cannot be accommodated without relying on property encroachments.”²³

160Mr. Schlaepfer highlights the following statement made by Member Kezwer in the Final Decision: “Mr. Rendl provided his opinion that the City Zoning Examiner is the gold standard which planning professionals rely upon to determine the minor variances that are required for a proposal.”

161Furthermore, he argues that Zoning Notices may be the “gold standard…but only when the applicants’ submissions are the gold standard.”²⁴

162In paragraph 49 of the Review Request, Mr. Schlaepfer contends that the Appellant’s Site Plan shows no continuous property line between 133 and 135 Summerhill Avenue, leaving the Zoning Examiner “…in the dark about the encroachment.”

163And, in paragraph 50, he argues that a statement by the legal representative of the City, presumably referring to the Zoning Examiner’s Notice, “…is not evidence” because the City Official was not at the Hearing and could not be cross-examined.

164Mr. Pateman maintains that Mr. Rendl provided the TLAB with uncontested evidence as to the role of the City’s Zoning review within both the COA and TLAB processes. He further maintains that both tribunals routinely rely on the findings of the Zoning Examiner, an individual who determines which variances are required given an applicant’s current proposal.

165He contends that the role of the TLAB:

“…is to determine the merits of the appeal before it on an individual basis…and vague unsubstantiated claims of malfeasance are simply intended to cast doubt on the ability of City Staff and Mr. Suri’s agents to complete a process that is both rigorous and transparent.”²⁵

And that suggesting the TLAB acted outside its jurisdiction by accepting the only evidence provided to the Tribunal “…is a mischaracterization of the appeal process.”

166Member Kezwer addressed this issue, starting at paragraph [6] b, in the Final Decision. There, the Member provides a summation of the SRA’s Closing Statement on Hearing Day 2 and an extensive analysis of the SRA’s issues, including a paragraph talking about the rear yard soft landscaping variance.

167At the Hearing, Mr. Schlaepfer on behalf of the SRA disputed whether the proposed 19% soft landscaping could be accommodated on the subject property arguing that the proposal requires the soft landscaping to encroach on private property at 135 Summerhill Ave., and on public property, being the City’s right-of-way.

168In addressing the SRA’s assertion in the Final Decision, Member Kezwer, in paragraph [57] accepts Mr. Rendl’s opinion that the zoning review by the City Zoning examiner is “the gold standard” by which planning professionals rely on to determine minor variances that are required for a proposal.

169He, then, agrees with Mr. Rendl, writing the following:

“The matter before the Tribunal are (sic) for minor variances that have been put forward by the appellant, and these minor variances have been reviewed and identified by a City Zoning Examiner. The planning approval is only for these identified minor variances. Anything beyond these minor variances will require an additional minor variance application in order to be in compliance with the City’s Zoning By-law.”²⁶

170On this issue, Mr. Pateman contends that the SRA’s “vague unsubstantiated claims of malfeasance (my emphasis) are simply intended to cast doubt on the ability of City Staff and Mr. Suri’s agents to complete a process that is both rigorous and transparent.”²⁷

171I am not comfortable with Mr. Pateman’s characterization of the SRA’s claims regarding City Staff zoning review of the subject application as ‘malfeasance’. I do, however, agree with him that Mr. Suri’s agents provided comprehensive materials of the proposal to the Zoning Examiner and, in turn, were provided with competent and professional opinion by City officials as to the variances required for the proposed development.

172I also find that the TLAB is within its jurisdiction to approve minor variances as considered required by the City’s Zoning Examiner and that the decision-maker arrived at his decision based on this information.

173As to Mr. Schlaepfer’s assertion of the absence of evidence by a witness who could be cross-examined, I assume he is referring to the City Zoning Examiner who reviewed the subject proposal. As a Party in the matter, the SRA could have served that examiner with a Summons to appear at the Hearing, as permitted by Rule 25 of the TLAB’s Rules, to give relevant and admissible evidence under oath regarding this issue. However, the SRA did not avail itself of this tactic.

174Mr. Rendl was available and was cross-examined at length by Mr. Schlaepfer during the hearing process. Mr. Rendl provided his opinion regarding this issue and the decision-maker agreed with him.

175Therefore, based on the above, I find that Member Kezwer’s Final Decision to grant the appeal and approve the Appellant’s variance application was entirely within the TLAB’s jurisdiction and that the decision-maker made no finding that was outside of the Tribunal’s statutory grant of approval.

Case Law Cited by the Summerhill Residents Association (SRA)

176Finally, Mr. Schlaepfer on behalf of the SRA, made several references in the Review Request to case law he cited in his Closing Statement, which he asserts was ignored by the decision-maker in arriving at his decision.

177For the record, I find it necessary to respond to his assertion in this regard.

178Mr. Schlaepfer cited several cases in his Closing Statement and cross-referenced those in the ‘Cases’ document portion of the SRA’s Review Request, as follows:

1. Blue Lion Building Corporation (Re), 2024 ONTLAB 279

2. Martin Rendl Associations (Re), Feb. 27, 2024 ONTLAB 190

3. TLAB Review Request Decision for 9 Ellesworth Ave., dated July 23, 2024

4. TLAB Review Request Decision for 290 Waverley Rd., dated October 17, 2023

5. Kuganesaphavan (Re), 2024 ONTLAB 235, 21 June 2024

6. Canada v. Vavilov – 2019 SCC 65

7. Vincent v. DeGasperis, 2005 CanLII 24263 (ON S.C.D.C.)

179In reference to the above-cited cases, Mr. Schlaepfer asserts that twice in the Final Decision, first in paragraph 35 (page 12) and, again, in paragraph 43 (page 14), Member Kezwer “…dismissed all these considerations contained in earlier TLAB Decisions addressing similar circumstances, brought to the attention of the TLAB in my Closing Statement…”

180I find this assertion to be somewhat disingenuous. Member Kezwer did acknowledge in the Final Decision that “Mr. Schlaepfer quoted from several different Tribunal decisions” and that “Mr. Schlaepfer quoted additional case law, such as the DeGasperis Divisional Court decision…” and Mr. Schlaepfer confirms this fact in the Review Request.

181By doing so, I believe Member Kezwer was more than aware of the cases highlighted by the SRA. I also do not find that the considerations in those cases were “dismissed” (my emphasis) by the decision-maker as Mr. Schlaepfer contends.

182Given that it is a common practice for the TLAB to circulate all Review Request Decisions upon issuance to its Members, and that decisions such as ‘Vavilov’ and ‘DeGasperis’ are well-known administrative planning tribunal cases, I am not convinced by the SRA’s arguments that Member Kezwer would have disregarded these considerations simply because they were not specifically referenced in the Final Decision.

183‘DeGasperis’, for example, a decision issued by Justice Malloy, established that planning tribunals are to apply the rigours of the Planning Act and consider all four identified tests rather than reducing an application on appeal to some perception or measure of “impact.”

184This is precisely what Member Kezwer did in arriving at his conclusion in the Final Decision, in allowing the variances requested by the Appellant.

185What is more, although previous jurisprudence can be helpful as guidance in tribunal decision-making, the issue of ‘precedent’ is more ill-defined. I contend that the use of ‘precedent’ can be a “double-edged sword,” in a sense. By that, I mean that it can be and is often employed both in support of and in opposition to proposed new development.

186However, the TLAB has long held that each proposal, if seeking Planning approval, will be subject to a rigorous public process to assess its merits and to determine whether it should be allowed or not. This process ensures that any development that occurs in a neighbourhood will be achieved in a balanced manner considering all relevant issues.

187In this regard, I agree with Mr. Pateman that each appeal to the TLAB is determined by the cumulative and individual impacts of each variance required by a particular proposal and its particular context. What one policy supports a particular geographic study area may not be possible within another study area.

CONCLUSION

188I have reviewed the Final Decision as a whole and considered it in the context of decision-making by the TLAB.

189The 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.

190Rule 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.²⁸

191In 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.

192I 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 requiring a documented rationale, ignoring expert opinion, or authorizing a variance in the absence of evidence or applying OP Policy incorrectly.

193I find that the presiding Member considered the opinion evidence of the Applicant’s expert land use planner, the arguments made by the SRA (Mr. Schlaepfer) and the statements made by the six (6) Participants and reached a reasonable outcome. I find no flaw in the reasoning or the decision delivered.

194Even 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.

195Therefore, in the matter of the Review Request in question, I find that there are insufficient grounds established under Rule 31.17 a), 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

196The Review Request filed by the Summerhill Residents Association is refused, and the Final Decision and Order of Member Kezwer, dated November 25, 2024, is confirmed.

D. Lombardi

TLAB Chair, Panel Member

Footnotes

1. 1Summerhill Residents Association’s Review Request for 133 Summerhill Avenue, dated December 15, 2024, para. 51, p. 17.
2. 2Ibid. para. 53
3. 3Response to Review Request of the Summerhill Residents Association, dated January 3, 2025, para. 59.
4. 4Roozbuilt Ltd. v. Jamieson, 2002 ONSC 2029, dated April 4, 2022, para. 32.
5. 5TLAB’s Rules of Practice and Procedure, as constituted after December 2, 2020, p. 44.
6. 6Summerhill Residents Association’s Review Request for 133 Summerhill Avenue, dated December 15, 2024, para. 8, p. 2.
7. 7Knight v. Indian Head School Division No. 19, [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. 9Summerhill Residents Association’s Review Request for 133 Summerhill Avenue, dated December 15, 2024, para. 15, p. 4.
10. 10Ibid., para. 23, p. 7.
11. 11Summerhill Residents Association’s Review Request for 133 Summerhill Avenue, dated December 15, 2024, para. 15, p. 4.
12. 12Ibid., para. 15, p. 4.
13. 13Summerhill Residents Association’s Review Request for 133 Summerhill Avenue, dated December 15, 2024, para. 17, p. 5.
14. 14Ibid., para. 21, p. 6.
15. 15Summerhill Residents Association’s Review Request for 133 Summerhill Avenue, dated December 15, 2024, para. 16, p. 4.
16. 16Summerhill Residents Association Reply to Response by Appellant of Review Request, dated January 7, 2025, para. 14.
17. 17Member Kezwer’s Final Decision for 133 Summerhill Avenue, dated November 25, 2024, para. [54].
18. 18Summerhill Residents Association Review Request for 133 Summerhill Avenue, dated December 15, 2024, para. 36, p. 12.
19. 19Summerhill Residents Association Review Request for 133 Summerhill Avenue, dated December 15, 2024, para. 10. P. 2.
20. 20Ibid., para. 28, p. 9.
21. 21Member Kezwer’s Final Decision for 133 Summerhill Avenue, dated November 25, 2024, para. [45].
22. 22Summerhill Residents Association Review Request for 133 Summerhill Avenue, dated December 15, 2024, para. 8, p. 2.
23. 23Summerhill Residents Association Reply to Response by Appellant to Review Request for 133 Summerhill Avenue, dated January 7, 2025, para. 9.
24. 24Ibid., para. 49, p. 16.
25. 25Mr. Suri’s Response to Review Request for 133 Summerhill Avenue, dated January 3, 2025, para. 30 & 31.
26. 26Final decision for 133 Summerhill Avenue, dated November 25, 2024, para. [57].
27. 27Response of Rahul Suri (Appellant) to Review Request of the Summerhill Residents Association, dated January 3, 2025, para. 32.
28. 28(SCC, 2019) para. 102-103