Kaucis (Re), 2025 ONTLAB 355

Toronto Local Appeal Body

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

Date: 2025-10-02

24 201979 S53 18 TLAB 24 201980 S45 18 TLAB 24 201981 S45 18 TLAB

Kaucis (Re), 2025 ONTLAB 355

REVIEW REQUEST DECISION AND ORDER

Issuance Date: October 2, 2025

Appellant: A. KAUCIS

Applicant: HYPHEN STUDIO

Property Address: 86 HARLANDALE AVENUE

COA File No.: 24 136507 NNY 18 CO (B0019/24NY) 24 136504 NNY 18 MV (A0236/24NY) 24 136500 NNY 18 MV (A0237/24NY)

TLAB Case File No.: 24 201979 S53 18 TLAB 24 201980 S45 18 TLAB 24 201981 S45 18 TLAB

Hearing Dates: January 9 and March 21, 2025

Final Decision/Order Date: May 9, 2025

Decision/Order Delivered By: TLAB Panel Member Y. Herscher

REGISTERED PARTIES AND PARTICIPANTS:

People Type First Initial. Last Name. Representative

APPLICANT HYPHEN STUDIO

APPELLANT A. KAUCIS A. STEWART

PARTY CITY OF TORONTO S. MESSINA

REVIEW REQUEST

1The subject property is located at 86 Harlandale Avenue (subject property), located northwest of Yonge Street and Sheppard Avenue West. An appeal was filed with the Toronto Local Appeal Body (TLAB) of the refusal by the Committee of Adjustment in August 2024 to approve an application for a consent to sever the subject property and to grant variances for the two resulting lots.

2The purpose of the application was to sever the subject property into two lots where two new duplex dwellings were proposed to be located, each containing a three-bedroom unit and a one-bedroom unit.

3The TLAB held a hearing over two days, on January 9, 2025 and March 21, 2025. On May 9, 2025, the TLAB issued a decision dismissing the appeal and confirming the decision of the Committee of Adjustment.

4On June 6, 2025, a request to review the TLAB’s final decision and order was filed by the owner of the subject property. On June 26, 2025, the City of Toronto filed a response to the review request.

5The TLAB Chair has designated me to conduct the review and make a decision in accordance with the TLAB Rules of Practice and Procedure.

6The request asks that the review panel cancel the TLAB decision of May 9, 2025 and submits that there is abundant evidence to enable the review panel to substitute a decision of approval of the proposed development. In the alternative, if this is not permitted by the TLAB Rules, the requestor requests that a new hearing be scheduled in front of a different TLAB panel.

7It should be noted that, in the event that the Chair or their designate decides to cancel a final decision, Rule 31.16 provides only for the review to direct a new hearing before a different TLAB member, where appropriate. The review panel has no jurisdiction to substitute its own decision for the original decision.

BACKGROUND TO THE APPLICATION

8Consent Requested:

CONVEYED PART 2 The proposed lot frontage is 7.62m. The proposed lot area is 273.5m².

RETAINED PART 1 The proposed lot frontage is 7.62m. The proposed lot area is 273.5m².

9Variances Requested:

Part 1:

1. Section 900.3.10.(5), By-law 569-2013 The required minimum side yard setbacks are 1.8 m each side. The proposed east side yard setback is 0.61 m. The proposed west side yard setback is 1.07 m.

2. Section 10.5.40.60.(2).(B), By-law 569-2013 A canopy above a platform that complies with regulation 10.5.40.60.(1) may encroach into a required building setback to the same extent as the platform it is covering. The proposed canopy is over a platform that does not comply with regulation 10.5.40.60.(1).

3. Section 10.20.40.10.(2).(B)(i), By-law 569-2013 The permitted maximum height of all side exterior main walls facing a side lot line is 7.5 m. The proposed height of the side exterior main walls facing a west side lot line is 7.82 m. The proposed height of the side exterior main walls facing an east side lot line is 8.08 m.

4. Section 10.20.30.10.(1).(A), By-law 569-2013 The required minimum lot area is 550 m2. The proposed lot area is 273.5 m2.

5. Section 10.20.30.20.(1).(A), By-law 569-2013 The required minimum lot frontage is 15 m. The proposed lot frontage is 7.62 m.

6. Section 10.20.30.40.(1).(A), By-law 569-2013 The permitted maximum lot coverage is 30% of the lot area. The proposed lot coverage is 32.05% of the lot area.

7. Section 10.5.80.40.(3).(B), By-law 569-2013 Vehicle access to a parking space is from the street on which the lot fronts. The proposed vehicle access to a parking space is from the street on which the lot fronts.

8. Section 10.5.40.60.(1).(A), By-law 569-2013 A platform without main walls, attached to or less than 0.3 m from a building, with a floor no higher than the first storey of the building above established grade, may encroach into the front yard setback if it is no closer to a side lot line than the required side yard setback. The proposed platform encroaches 1.68 m into the required front yard setback. The required side yard setback is 1.8 m, the east side yard setback to the first floor platform is 0.61 m.

Part 2:

1. Section 900.3.10.(5), By-law 569-2013 The required minimum side yard setbacks are 1.8 m each side. The proposed west side yard setback is 0.61 m. The proposed east side yard setback is 1.07 m.

2. Section 10.5.40.60.(2).(B), By-law 569-2013 A canopy above a platform that complies with regulation 10.5.40.60.(1) may encroach into a required building setback to the same extent as the platform it is covering. The proposed canopy is over a platform that does not comply with regulation 10.5.40.60.(1).

3. Section 10.20.40.10.(2).(A).(i), By-law 569-2013 The permitted maximum height of all side exterior main walls facing a side lot line is 7.5 m. The proposed height of the side exterior main walls facing a west side lot line is 7.88 m. The proposed height of the side exterior main walls facing an east side lot line is 7.62 m.

4. Section 10.20.30.10.(1).(A), By-law 569-2013 The required minimum lot area is 550 m². The proposed lot area is 273.5 m².

5. Section 10.20.30.20.(1).(A), By-law 569-2013 The required minimum lot frontage is 15 m. The proposed lot frontage is 7.62 m.

6. Section 10.20.30.40.(1).(A), By-law 569-2013 The permitted maximum lot coverage is 30% of the lot area. The proposed lot coverage is 32.05% of the lot area.

7. Section 10.5.40.60.(1).(A), By-law 569-2013 A platform without main walls, attached to or less than 0.3 m from a building, with a floor no higher than the first storey of the building above established grade, may encroach into the front yard setback if it is no closer to a side lot line than the required side yard setback. The proposed platform encroaches 1.68 m into the required front yard setback. The required side yard setback is 1.8 m, the west side yard setback to the first floor platform is 0.61 m.

THE LEGISLATIVE AND POLICY FRAMEWORK

10For completeness and ease of reference, Rule 31 of the TLAB’s Rules of Practice and Procedure is reproduced below.

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;

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

11Before 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 upon consideration of any review:

• A review request is not afforded as an opportunity to re-litigate or re-argue 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 function but tested against the defined, eligible grounds for reconsideration.

• In writing their decision, a TLAB member must consider opinion and evidence, and decide what weight to ascribe to each in coming to their conclusions.

• While a decision must provide the basis for coming to the conclusion it did, it does not require an acknowledgement and repudiation (or concurrence with) of every argument made by the requesting party.

• The grounds for review mandated under Rule 31 set a consequential standard for findings – that the reasons and evidence are compelling and 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 (that is, they are of such significance) that could meet the threshold established in Rule 31.17.

• The basis for a decision must be understandable 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.

12It 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. A member’s decision is based on that member’s discretionary perception of the evidence and relevant considerations.

13It is with these considerations in mind that I have read the member’s final decision and order, the review request documents, and materials filed for the TLAB hearing. I have also attended at the subject site and the surrounding area.

14It 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.

15A review is not, as stated above, 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.

16The TLAB Rules clearly envisage that there must be a demonstrable error in the categories identified that warrants relief of the type and to the standard provided for in Rule 31.

GROUNDS FOR REVIEW ASSERTED BY THE REQUESTER

17In the review request, the requestor sets out the basis for the request pursuant to Rule 31.17(c) of TLAB’s Rules, that is, that the TLAB made errors of law and/or fact that would have resulted in a different final decision had the errors not been made. In its decision of May 9, 2025, the TLAB member refused the proposed development on the basis of policy 4.1.5 of the official plan. The TLAB member found that the proposed lot sizes were not prevailing in the surrounding area, nor found in substantial numbers.

18It is the requester’s position that the TLAB member fundamentally misinterpreted the policies of the official plan that apply to multiplex development and, as a result, misapplied the official plan tests for development of multiplexes.

19The requester notes that the TLAB member held that the same official plan test applies to multiplex development as to a detached single dwelling and consequently found that the proposed lots did not meet the prevailing lot sizes in the geographic neighbourhood and, on that basis alone, the TLAB refused the applications in their entirety.

20The request challenges the TLAB decision for importing the test for general development in official plan policy 4.1.5 and applying it to multiplex development. The request states that the TLAB erred in law by failing to apply the test for multiplex development, which is set out in Site and Area Specific Policy 826 (SASP 826).

21The review request states that the TLAB member applied the official plan in a manner that requires multiplex development to “maintain prevailing lot sizes”, and interpreted “prevailing” to mean “most frequently occurring”. The request alleges that the TLAB erred in doing so in that the “prevailing” language as defined in policy 4.1.5 has not been carried forward into SASP 826. According to the review request, the definition of “prevailing” is found only in policy 4.1.5, and it relates only to the interpretation of policy 4.1.5.

22The request also asserts that the TLAB erred in finding that the proposed consent is subject to a different test than the proposed minor variances. The TLAB held that for it to grant a consent to sever land, the TLAB member must consider the criteria set out in subsection 51(24) of the Planning Act. The requester submits that clause (c) of subsection 51(24) does not require that a proposed consent conform to the official plan but merely that that the TLAB should have regard to conformity with the official plan, which is a lower threshold.

ANALYSIS

“Prevailing” Language in Official Plan Policy 4.1.5

23The requester submits that SASP 826 exempts the development of multiplexes from policy 4.1.5 by using the language “despite policy 4.1.5, multiplexes are permitted in neighbourhoods, subject to the following policies.” The applicant’s expert land use planner testified that multiplex development is not subject to official plan policy 4.1.5, which means that development is not subject to the policy 4.1.5 definition of “prevailing”.

24Official plan policy 4.1.5 contains development criteria that are intended to give greater specificity regarding the expectation for development in “Neighbourhoods”. SASP 826 sets out policies which are different from those in policy 4.1.5 in order to accommodate multiplexes in “Neighbourhoods”.

25Policy 4.1.5 states that development in established neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood including, in particular, prevailing size and configuration of lots, among others.

26SASP 826 provides that despite policy 4.1.5, multiplexes are permitted in “Neighbourhoods” subject to certain policies, including the prevailing size and configuration of lots.

27The TLAB member acknowledged that in order to accommodate multiplex development in designated “Neighbourhoods”, the intent of SASP 826 is to amend, for this building type, the development criteria embedded in policy 4.1.5.

28The issue here is whether policy 4.1.5 applies to the proposal or if SASP 826 supersedes SASP 826, such that policy 4.1.5 is no longer applicable to the proposed development.

29The requester submits that the definition of the term “prevailing”, which is used in both policy 4.1.5 and SASP 826, as in the “prevailing size and configuration of lots” is defined in policy 4.1.5 as the “most frequently occurring form of development in the neighbourhood”. The requester argues that the definition is intended for the purpose of policy 4.1.5 only and is not intended to be applicable to the use of the term “prevailing” in SASP 826.

30The position of the requester is that the purpose of SASP 826 is to exempt multiplex development from being subject to policy 4.1.5 because, in most neighbourhoods, policy 4.1.5 would preclude multiplexes from being built. The review request posits that in policy 4.1.5, the test to be applied is to “respect and reinforce physical character” whereas in SASP 826, the test is to “maintain the low-rise built form” in the neighbourhood.

31Because there was no dispute at the hearing with respect to the built form of the proposed development, the review request submits that the proposed lot sizes result in a development with the appropriate built form, which satisfies the correct test, that is, the test outlined in SASP 826.

32On the other hand, the City’s response to the review request reiterates the evidence that the City put forward at the hearing, specifically that while SASP 826 displaces many of the criteria in policy 4.1.5 for multiplex developments, it does not eliminate consideration of whether a proposal will maintain the low-rise character of the surrounding neighbourhood.

33The City states that a critical part of the assessment of the character of the neighbourhood includes whether the size, shape, and layout of the proposed lots are consistent with the existing pattern of development. The City further asserts that lot fabric encompasses attributes such as lot frontage, depth, area and configuration, and is used to evaluate how proposed lots will fit within an established physical context.

34The City’s position is that the TLAB member appropriately considered whether the proposed severances would be compatible with the prevailing lot fabric on the street and in the neighbourhood. The City contends that this analysis was supported by quantitative and qualitative evidence provided by the City’s land use planner, which showed that only 7 out of the 390 lots in the surrounding area had frontages equal to or less than the proposed development, and none had smaller lot areas. Accordingly, the evidence of the City’s expert witness was that these findings demonstrated that the proposed development was not consistent with the structure of lots in the nearby area.

35While SASP 826 exempts multiplex development from policy 4.1.5, it continues to use the phrase “prevailing size and configuration of lots”. The official plan provides no alternative definition for “prevailing,” and I find that the TLAB member reasonably relied on the City’s expert evidence that the commonly accepted interpretation, consistent with policy 4.1.5, is that “prevailing” means “most frequently occurring.”

36The "most frequently occurring" is a numerical determination and the City accordingly submitted a quantitative analysis of the neighbourhood. The TLAB member relied upon this quantitative approach but I find that there was no error in preferring quantitative over qualitative analysis.

37The City also submits that the TLAB member did not misinterpret SASP 826 and policy 4.1.5 in that she recognized that while SASP 826 modifies the evaluation criteria for multiplex proposals, it does not eliminate consideration as to how a proposed lot configuration relates to the existing neighbourhood character. Finally, the City argues that the TLAB member assessed both the physical built form and the proposed lot pattern attributes that together inform whether a development maintains the prevailing low-rise character.

38In the decision, the TLAB member found that the criterion established in policy 4.1.5 remains wholly intact and in force in the amended requirements of SASP 826. She highlighted that the identical language of “prevailing size and configuration of lots” is used in both policy 4.1.5 and SASP 826, and she concluded that the term “prevailing” as defined in policy 4.1.5 had been carried forward into SASP 826.

39At the hearing, the applicant’s expert witness put forward the same interpretation of policy 4.1.5, as outlined above in paragraphs 23 and 29, that is now being asserted in the review request. It was carefully considered by the TLAB member, who ultimately rejected this approach and stated at paragraphs 58 and 59 of the decision:

“A careful reading of both sets of policies shows that the criteria in each are articulated as a set of controls, by means of which the overall goal of the policy is achieved. In other words, for SASP 826, the direction is that development of multiplexes will maintain the low-rise built form of each geographic neighbourhood, including, in particular, maintaining the prevailing size and configuration of lots.

In either set of policies, while the overall intent for development might be slightly different, I find that the application of the criterion regarding prevailing size and configuration of lots remains exactly the same. It is one of the controls that is common to both policy objectives and is intended to play a part in achieving development that respects and reinforces existing character as well as the achievement of a low-rise form in the case of multiplexes.”

40I find that the TLAB member did not disregard the evidence of the applicant’s expert witness; rather, she disagreed with it, which she is entitled to do.

41The opinion of an expert witness is just that, an opinion. The opinion evidence of an expert should not be assumed, or treated, as fact. In this regard, TLAB members are guided by Practice Direction 6, which includes a section entitled “How Much Weight is Given to Experts?”:

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

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

42The fact that there were conflicting land use planning opinions at the hearing regarding how to interpret the language in policy 4.1.5 and SASP 826 demonstrates that the issue of the application of the term “prevailing” is subjective and could be determined any number of ways; there is no one “correct” outcome.

43However, even if there was only one expert opinion proffered at the hearing, there is no obligation upon the tribunal member to necessarily accept that evidence and make a decision that is based on that opinion. Otherwise, the TLAB’s decision would be a foregone conclusion, akin to a rubber stamp, but the tribunal process is designed such that the panel member must consider all the evidence and then, relying upon their own experience and expertise, come to a reasonable decision in the circumstances taking into account the statutory and policy framework.

44With reference to the member’s findings regarding whether SASP 826 supersedes policy 4.1.5 in the official plan, the decision does not, in my opinion, disregard the evidence put before the TLAB member. The decision goes to some length to reflect the evidence of the applicant’s expert witness.

45The member considered the expert evidence of the City’s planner and contrasted it with the evidence of the applicant’s planner. While both experts agree that the proposed built form was generally acceptable, their evidence diverged on the issue of lot fabric. The data of the City’s land use planner showed that the proposed frontages and lot areas were statistical outliers, and she defined “prevailing” using the official plan’s “most frequently occurring” standard. The applicant’s planner relied on a broader interpretation, arguing that the lots were “represented” in the neighbourhood. The member ultimately preferred the City’s quantitative approach. This type of evidentiary weighing falls within the member’s discretion and does not amount to a reviewable error.

46It is not within my purview as the reviewer of the decision to comment on the “correctness” of the TLAB member’s finding with respect to whether or not SASP 826 supersedes Policy 4.1.5 of the official plan. Clarification of this policy question will no doubt evolve via tribunal jurisprudence. The task of the reviewer is to establish whether there are arguable and compelling errors in the decision.

Subsection 51(24) of the Planning Act

47The requestor states that the TLAB also erred in its assessment of the consent criteria under subsection 51(24) of the Planning Act in that clause 51(24)(c) does not require that a consent “conform” to the official plan but requires that an approval authority “have regard to” conformity with the official plan, which is a lower threshold than conformity.

48At paragraph 62 of the decision, the TLAB member identified two criteria under subsection 51(24) as particularly relevant:

• (c) whether the plan confirms to the official plan, and

• (f) the dimensions and shapes of the proposed lots

49The review request asserts that the TLAB member had difficulty considering the variances independent of the proposed consent. The review request submits that the built form was acceptable and that this alone should have supported the approval.

50In the decision, however, the TLAB member concluded that the severance application is legally distinct from the application for the variances and must be assessed separately under subsection 51(24). While built form may assist in evaluating the functionality of resulting lots, it is not determinative in the severance analysis.

51The TLAB decision distinguished multiplex-built form, permitted under SASP 826, from lot creation through severance, which remains subject to its own statutory framework.

52The TLAB member found that consideration of the severance application under clause 51(24)(c) rests primarily on the dimensions, area, and configuration of the proposed lots since, if the consent is approved, the created lots exist independently and are not tied to the particular design or built form proposed. Based on the land use planning evidence, the member found that the proposed lot frontages and area (7.62 metres and 273.5 square metres) were outliers in the geographic neighbourhood.

53The TLAB member accepted the City’s land use planning evidence that SASP 826 addresses built form, not lot creation, and that the official plan does not promote the severing of lots as a strategy for introducing multiplex housing.

54With respect to clause 51(24)(f), it is the tribunal’s duty to interpret the official plan and the tribunal itself must be satisfied that the general intent and purpose of the official plan have been met. The adjudicator must be satisfied that the statutory tests under the Planning Act have been addressed.

55This TLAB member determined that the proposed severance does not meet criteria (c) or (f) of subsection 51(24) for approval of the consent to sever. The member understood the statutory framework, applied the proper legal tests, and weighed the evidence appropriately. I agree with the City that the requester’s arguments regarding subsection 51(24) do not raise any compelling grounds under Rule 31.17(c), nor does the record support one, that would warrant interference with these findings.

56The requester’s arguments overlook the severance-specific tests under subsection 51(24) of the Planning Act, which applies to applications for consent to sever. If the consent were granted, the resulting lots would exist independently of the proposed built form. Even if the built form was acceptable, the member held that the proposed severance must still satisfy the criteria in subsection 51(24). I do not find an error in law or fact in how the member applied this statutory test.

Prior TLAB Decisions

57The requester relied upon two recent TLAB decisions to argue that the TLAB member failed to properly apply SASP 826: 579 Glencairn, Korkmaz (Re) 2025 ONTLAB 334 and 688 Cosburn, Ghafoori (Re) 2024 ONTLAB 185.

58Because each matter that comes before the TLAB is unique, it should be noted that TLAB decisions are not binding on each other and each application must be assessed on its own factual and evidentiary record.

59The applicability of SASP 826 in the two recent TLAB cases put forward by the requester resulted in outcomes favouring the applicant owners, however, the conclusions in both cases were based on the specific lot characteristics, the neighbourhood contexts, and the land use planning evidence proffered.

60In the matter at hand, the TLAB member was entitled to evaluate the evidence before her, in a manner consistent with the relevant statutory and policy framework. I agree with the statement in the City’s response to the review request that the requester’s reliance on these two recent decisions amount to a disagreement with how the member weighed the evidence. There is no reviewable error because different TLAB members reached different outcomes in different cases based on different facts.

CONCLUSION

61The preponderance of the errors claimed in this request present as an attempt to re-argue contested issues from the hearing that were addressed in the final decision, but not in favour of the applicant. The request seeks to re-argue the application on its merits, which is not the function of Rule 31.

62I find that the TLAB member carefully considered the opinion evidence of the applicant’s expert land use planner and reached a reasonable outcome. The member is entitled to formulate their own opinion whether to accept or disagree with the expert witness. That exercise is part of the function of the member.

63The standard of review requires that a definable error be identified and established. In other words, the decision itself, provided it is properly reasoned, is not reviewable; the reviewer is not to “second guess” the member’s findings.

64The requester has not demonstrated that the TLAB member applied the incorrect legal or policy framework. The member’s reasoning in the decision was well-reasoned and thorough, and supported by the statutory framework, the official plan and the evidence before her.

65The purpose of a review under Rule 31.17(c) is to establish whether the member got the law or the facts wrong. A finding of error of fact must be consequential, that is, had the error not occurred, a different decision would have been made. I find no such error.

66Even if I had found that the TLAB member had made an error of law with respect to the assertions alleged in the review request, I am not convinced that there are sufficient reasons or evidence to show that the errors would likely have resulted in a different decision approving the severance and variances.

67I find that there are insufficient grounds established pursuant to Rule 31.17(c) to grant the remedy sought by the requesting party under Rule 31.16(c) to cancel the final decision and direct a hearing before a different TLAB member.

DECISION AND ORDER

68The review request is refused, and the final decision and order dated May 9, 2025, is confirmed.

Y. Herscher

Panel Member