Toronto Local Appeal Body

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

Date: 2025-10-28

TLAB File Numbers: 24 243900 S53 08 TLAB 24 244140 S45 08 TLAB 24 244143 S45 08 TLAB

Korkmaz (Re), 2025 ONTLAB 371

REVIEW REQUEST DECISION AND ORDER

Issuance Date: October 28, 2025

Appellant: S. KORKMAZ

Applicant: F. ROMANO

Property Address: 579 GLENCAIRN AVENUE

COA File Numbers: 24 160189 NNY 08 CO (B0025/24NY) 24 160193 NNY 08 MV (A0299/24NY) 24 160197 NNY 08 MV (A0300/24NY)

TLAB Case File No.: 24 243900 S53 08 TLAB 24 244140 S45 08 TLAB 24 244143 S45 08 TLAB

Hearing Dates: April 23, 2025 and May 12, 2025

Final Decision/Order Date: May 23, 2025 Review Request Submitted: June 23, 2025 Response to Request: July 14, 2025 Reply to Response: July 21, 2025

Review Request Decision Delivered By: TLAB Panel Member Y. Herscher

REGISTERED PARTIES AND PARTICIPANTS:

People Type First Initial. Last Name. Representative

APPLICANT F. ROMANO

APPELLANT S. KORKMAZ M. MAZIERSKI

PARTY PARTY PARTY

CITY OF TORONTO S. DALE A. ARONSON

U. GAUTAM, A. NANJI

CONTEXT TO THE REVIEW REQUEST

1. On June 5, 2024, F. Romano applied to the Committee of Adjustment on behalf of the appellant/owner, S. Korkmaz, for consent to sever to split 579 Glencairn Avenue into two lots. Application was also made for 13 minor variances to permit the construction of a detached dwelling on the westerly lot to be created (Part 1) and for 14 minor variances to permit the construction of a detached dwelling on the easterly lot to be created (Part 2).

2. The site has an existing frontage of 15.24 metres and a total lot area of 620.8 square metres. The proposal is to divide the property into two equal size lots of 310.4m² and a frontage of 7.62m each. The zoning by-law stipulates a minimum lot area of 550m² and a lot frontage of 15m.

3. On November 14, 2024, the Committee of Adjustment refused the consent and variance applications. The decisions of the Committee of Adjustment were appealed by the applicant on behalf of the appellant/owner.

4. Prior to the hearing of the appeal before the Toronto Local Appeal Body (TLAB), the application was revised, resulting in a reduction of the number of variances requested to five for Part 1 and five for Part 2. There were no changes to the plans with respect to the proposed severance.

5. The TLAB held a hearing over two days, on April 23, 2025 and May 12, 2025. On May 23, 2025, the TLAB issued its decision allowing the appeal and setting aside the decisions of the Committee of Adjustment.

6. On June 23, 2025, a request to review the TLAB’s final decision and order was filed by the City of Toronto. On July 14, 2025, the appellant/owner filed a response to the review request. On July 21, 2025, the City filed a reply to the response to the review request.

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

8. The City requests that the TLAB decision of May 23, 2025 be cancelled and that a new hearing be scheduled in front of a differently constituted panel of the TLAB. The City also requests that the TLAB decision be stayed until a new hearing is complete.

BACKGROUND TO THE APPLICATION

9. Consent requested:

PART 1

The proposed lot frontage is 7.62m.

The proposed lot area is 310.4m².

PART 2

The proposed lot frontage is 7.62m.

The proposed lot area is 310.4m².

10. Variances Requested:

Part 1:

1. Chapter 10.20.30.10.(1) A), By-law No. 569-2013

The required minimum lot area is 550 square metres. The proposed lot area is 310.4 square metres.

2. Chapter 10.20.30.20.(1) A), By-law No. 569-2013

The required minimum lot frontage is 15 metres. The proposed lot frontage is 7.62 metres.

3. Chapter 10.5.40.60.(1) A) (i), By-law No. 569-2013

A platform without main walls, attached to or less than 0.3 metres from a building, with a floor no higher than the first floor of the building above established grade may encroach into the required front yard setback if it is no closer to a side lot line than the required side yard setback: 1.8m.

The proposed front porch is 0.6 metres from the east side lot line.

4. Chapter 900.3.10(5), By-law No. 569-2013

The required minimum side yard setbacks are 1.8 metres each side.

The proposed west side yard setback is 1.2 metres.

5. Chapter 900.3.10(5), By-law No. 569-2013

The required minimum side yard setbacks are 1.8 metres each side.

The proposed east side yard setback is 0.6 metres.

Part 2:

1. Chapter 10.20.30.10.(1) A), By-law No. 569-2013

The required minimum lot area is 550 square metres. The proposed lot area is 310.4 square metres.

2. Chapter 10.20.30.20.(1) A), By-law No. 569-2013

The required minimum lot frontage is 15 metres. The proposed lot frontage is 7.62 metres.

3. Chapter 10.5.40.60.(1) A) (i), By-law No. 569-2013

A platform without main walls, attached to or less than 0.3 metres from a building, with a floor no higher than the first floor of the building above established grade may encroach into the required front yard setback if it is no closer to a side lot line than the required side yard setback: 1.8m.

The proposed front porch is 0.6 metres from the east side lot line.

4. Chapter 900.3.10(5), By-law No. 569-2013

The required minimum side yard setbacks are 1.8 metres each side.

The proposed west side yard setback is 1.2 metres.

5. Chapter 900.3.10(5), By-law No. 569-2013

The required minimum side yard setbacks are 1.8 metres each side.

The proposed east side yard setback is 0.6 metres

THE LEGISLATIVE AND POLICY FRAMEWORK

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

12. 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 supplemental documents including the table of contents, excerpts from by-laws, exhibits and other supporting Documents, which shall not exceed 100 pages in length, the Review Request shall not exceed 20 pages, double-spaced, and written in 12-point font. Case law and transcripts are not limited.

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 OF A REVIEW REQUEST

12. Before 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.

13. It 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.

14. It 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.

15. It 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.

16. A 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.

17. The 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 THE REVIEW REQUEST

18. In the review request, the City sets out the basis for the request pursuant to Rule 31.17(c) of TLAB’s Rules, that is, it is alleged 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.

19. According the review request, the TLAB decision:

a. misapprehends facts

b. fails to have regard to whether the proposed development conforms to the official plan

c. misapplies the test for desirability under section 45 of the Planning Act, and

d. incorrectly determines the evidentiary burden was met

20. The review request states that the tribunal incorrectly identified a conflict between official plan amendment 649 (OPA 649) and official plan policy 4.1.5(b), misinterpreted the word “prevailing” that is used in both, incorrectly interpreted “regard shall be had for” under section 45 of the Planning Act, and failed to have regard to the dimensions and shapes of the proposed lots.

21. The review request asserts that the TLAB member accepted the expert evidence of the appellant that OPA 649 supersedes policy 4.1.5 with respect to lot size and configuration and that “prevailing” as used in OPA 649 does not incorporate the definition of “prevailing” that is used in policy 4.1.5 to mean “the most frequently occurring”.

22. The TLAB decision referred to the use of the word “despite” in OPA 649 which provides that multiplexes are permitted in neighbourhoods despite policy 4.1.5. as long as the built form is compatible. The tribunal held that the use of the word “despite”, together with the rationale for OPA 649 contained in the Expanding Housing Options in Neighbourhoods (approved by council in May 2023) supports the conclusion that OPA 649 provides the appropriate test to assess multiplex development applications.

23. The TLAB decision also found that OPA 649 does not carry forward the statement from policy 4.1.5 that new development must respect and reinforce the existing physical character of each geographic neighbourhood.

24. The review request submits that, contrary to the findings of the TLAB decision, policy 4.1.5 continues in effect due to the use of the wording “prevailing size and configuration of lots” in OPA 649. It is submitted by the City that the official plan requires that development respect and reinforce the “prevailing size and configuration of lots” within the neighbourhood, regardless of whether the proposed development is for a single residential dwelling or a multiplex.

25. The review request states that the TLAB member should have applied the official plan in a manner that requires multiplex development to “maintain prevailing lot sizes”, and should have 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 been carried forward into OPA 649. According to the review request, the definition of “prevailing” found in policy 4.1.5 is also intended to encompass multiplex development described in OPA 649.

26. The tribunal accepted the evidence of the appellant’s expert land use planner that the existing physical character in the neighbourhood is characterized by an assortment of lot frontages and sizes, the lots of the size proposed exist in some numbers in the neighbourhood and would be compatible, albeit not identical, with the existing lots.

27. The TLAB decision found that a majority of lots in the neighbourhood have a lot frontage of less than the 15m minimum required by the zoning by-law and that a majority of lots in the immediate context of the subject property have a lot area less than the minimum required lot size of 550m². The decision also held that there are approximately seven other lots, mostly located on the street of the subject property, that have the same lot frontage as those proposed – 7.62m.

28. In addition to quantitative evidence, the tribunal accepted qualitative evidence that smaller lot frontages were adjacent to larger lots. The tribunal found that, based on the photo evidence and confirmed by a site visit, the features of height, width, roof design and driveway placement of newer houses play a more prominent role in determining the look and feel of the neighbourhood than lot frontage.

29. On the basis of these findings regarding the physical character of the immediate area, the review request asserts that the TLAB decision misapprehends material facts related to the lot frontage and area coverage in the neighbourhood and thereby inaccurately concluded that most nearby lots were undersized.

30. It is the City’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.

31. The requester notes that the TLAB member held that the official plan test that applies to detached single dwellings does not apply to multiplex development and consequently found that the proposed lots meet the prevailing lot sizes in the geographic neighbourhood. On that basis, the TLAB approved the applications.

32. The request challenges the TLAB decision for not 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 all residential dwellings in neighbourhoods, as per policy 4.1.5.

ANALYSIS

Did the TLAB Misapprehend the Facts?

33. The review request submits that the TLAB member misapprehended the facts by incorrectly identifying the number of undersized lots in the immediate context. The request disputes the findings of the TLAB decision that the majority of the lots in the immediate context of the subject property have a lot area less than the minimum required lot size of 550m², and instead contends that the factual evidence illustrates that the number of lots with those measurements is far lower.

34. The appellant, in its response to the review request, refutes that argument in some detail. According to the response, because the appellant’s expert witness evaluated the proposal based on OPA 649 rather than the definition in policy 4.1.5, the application of “immediately adjacent context” is focused on the lots located along the entire street.

35. In the TLAB decision, the member determined that the evidence focusing on the statistics for the lots in the immediate context was not fundamental to the evaluation of the proposal, because the focus on those lots is based on policy 4.1.5. Instead, and based on evidence that was before the tribunal, the member chose to evaluate the proposal based on OPA 649 rather than policy 4.1.5.

36. The TLAB member considered the opinion evidence of the expert witnesses and ultimately decided which evidence they preferred to rely upon. The member is entitled to formulate their own opinion whether to accept any of the expert witnesses’ testimony and how much weight to assign that evidence.

Did the Decision Fail to Have Regard for Whether the Proposed Consent Conformed with the Official Plan?

37. One of the central issues here is the interpretation and application of the term “prevailing” as used in both OPA 649 and policy 4.1.5(b). Policy 4.1.5(b) defines the term “prevailing” as “most frequently occurring” and while OPA 649 also contains the phrase “prevailing size and configuration of lots”, it does not specifically define the term “prevailing”.

38. The review request posits that the TLAB decision was incorrect in identifying a conflict between OPA 649 and the official plan. Since the language in both policies of “prevailing size and configuration of lots” is identical, the submission is that there is no conflict and instead of altering the definition of prevailing, OPA 649 identifies which parts of policy 4.1.5 will continue to apply where a multiplex is proposed.

39. Both policy 4.1.5 and OPA 649 use the phrase “prevailing size and configuration of lots.” According to the review request, there is nothing in OPA 649’s context suggesting that the word “prevailing” should be interpreted differently when multiplexes as permitted under OPA 649 are proposed on Neighbourhood designated lands. Instead of altering the definition of “prevailing”, the City argues that OPA 649 is intended to specify which parts of policy 4.1.5 will continue to apply where a multiplex is proposed.

40. The review request submits that the dictionary definition of “prevailing” and prior TLAB decisions define “prevailing” as “most frequently occurring”. The City provided a number of TLAB decisions where OPA 649 was read within the context of and consistent with policy 4.1.5.

41. The City goes on to say that TLAB decision at hand is at odds with previous TLAB decisions and that tribunals are expected to make consistent decisions in similar factual circumstances. The request cites from the decision in Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65 in which the Supreme Court of Canada held that while administrative decision-makers are not bound by their previous decisions, those affected by administrative decisions are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision-maker.

42. The appellant disputes the City’s submissions regarding the prior TLAB decisions that the City relies upon and puts forward other TLAB decisions that have alternate findings on the same or similar policies.

43. It should be noted that every application that comes before the TLAB is unique and must therefore be assessed on its own factual and evidentiary record. Cases that come before the TLAB are generally not alike in many respects (the proposal itself, the neighbourhood, the applicable policies, the evidence, etc.). As a result, each TLAB application is assessed based on its own particulars and the tribunal panel necessarily comes to a different conclusion for each matter.

44. The appellant takes the opposite position vis-à-vis the interpretation of the use of the term “prevailing” in OPA 649 and asserts that OPA 649 and policy 4.1.5 are different standards that conflict with each other.

45. According to the appellant’s land use planner, the use of the word “despite” means that the text in OPA 649 prevails over policy 4.1.5, and provides a different test to be applied to multiplex development. OPA 649 and policy 4.1.5 provisions are not to be read together. Accordingly, the word “despite” in OPA 649 illustrates that multiplex development in Neighbourhoods is exempt from policy 4.1.5 and the policies listed in OPA 649 apply instead. OPA 649 removes policy 4.1.5 from the policy framework applicable to multiplex development in Neighbourhoods.

46. The appellant’s land use planner also testified that the text in OPA 649 to “maintain the low-rise built form of each geographic neighbourhood”, denotes that it is meant to be more flexible than the requirement to under policy 4.1.5 to “respect and reinforce the existing physical character of each geographic neighborhood”. These are two different tests (one test under OPA 649 and the other test under policy 4.1.5) applied to the same criteria (that criteria being ‘prevailing size and configuration of lots’).

47. With respect to the definition of the term “prevailing”, the appellant asserts that policy 4.1.5 states that “prevailing will mean most frequently occurring for the purposes of this policy”. The inclusion of the words “for the purposes of this policy” means that the same definition is not applicable to other parts of the official plan including OPA 649 which specifically exempts the multiplex proposal from policy 4.1.5 by expressly using the words “despite” before listing the relevant criteria for all multiplex development.

48. The response further states the context in which “prevailing” is used is not the same since the interpretation of prevailing as “most frequently occurring” is exclusive to policy 4.1.5, as that policy is the only one to specify a definition of prevailing. If the term “prevailing” was intended to be interpreted in the same fashion across the entirety of official plan, then definition of “prevailing” in in policy 4.1.5 would say that the definition is made for the purpose of the official plan in its entirety, rather than for the purpose of policy 4.1.5.

49. There is also disagreement as between the requester and the appellant as to whether the member applied the correct test with respect to having regard to conformity with the official plan.

50. The City asserts that official plan policies respecting neighbourhood character and lot fabric were disregarded, with the result that the consent-to-sever was not evaluated rigorously. The appellant opposes this position and states that the TLAB decision did in fact evaluate official plan policies concerning neighbourhood character and lot fabric.

51. The City also argues that the TLAB failed to have regard to the dimensions and shapes of the proposed lots, contrary to subsection 51(24) of the Planning Act, and the decision approved a narrow lot frontage present in only a small percentage of the surrounding neighbourhood. In contrast, the appellant states that the TLAB decision considered the lot statistics provided by both experts and analyzed how the proposed lots fit within the context of the neighbourhood.

Did the TLAB Misapply the Minor Variance Test for Desirability under Section 45 of the Planning Act?

52. The review request submits that the TLAB misapplied the test under section 45 of the Planning Act for desirability by holding that the application was desirable because it would increase housing supply. The City indicates that the same number of units can be constructed on the existing single lot as-of-right and that neither the consent nor the variances were required to increase housing supply.

53. The appellant disputes this assessment and submits that the TLAB decision cites consistency with provincial objectives, transit supportive development and consistency with OPA 649 as additional reasons that the proposal is desirable.

Did the Appellant Fail to Meet Its Evidentiary Burden?

54. The City contends that the appellant did not meet its evidentiary burden because it did not provide any evidence for the consent or minor variance relating to policy 4.1.5. The City points to the part of the TLAB decision which notes that the appellant’s expert conceded under cross-examination that the application would not meet the definition of “prevailing” contained in the official plan.

55. The appellant responds that the exclusion of policy 4.1.5 from the evaluation of the proposal does not constitute a failure to meet the evidentiary burden. The TLAB decision accepted the evidence of the appellant’s expert that the applicable framework does not include policy 4.1.5 since OPA 649 exempts multiplex development from policy 4.1.5.

Conclusion

56. My purpose in reviewing the arguments presented in the review request is not for the purpose of determining whether the TLAB member reached the “correct” interpretation or decision, but to illustrate that there were opposing expert opinions on all these issues at the hearing. It is not an error of fact or law for the TLAB member to prefer one opinion over another or to give more weight to the testimony of one expert over another, as long as the evidence the TLAB member relies upon is reasonable and germane to the issues at hand.

57. It is not up to the reviewer to adjudicate upon what the TLAB member may or may not have decided upon being presented with the evidence at the hearing. The TLAB member is entitled to make their own assessment as to credibility and relevance of the evidence, especially where there is contradictory expert testimony, as there was in this case. That is the one of the chief responsibilities that a TLAB member is expected to carry out.

58. With respect to the evidence of the City’s expert land use planner, I find that the TLAB member did not disregard the evidence of the applicant’s expert witness; rather, the member disagreed with it, which they are entitled to do.

59. The 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.”

60. The fact that there were conflicting land use planning opinions at the hearing regarding how to interpret the language in policy 4.1.5 and OPA 649 demonstrates that the issue of the application of the term “prevailing” is subjective and could be determined any number of ways; there is not necessarily one correct outcome.

61. However, 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.

62. With reference to the member’s findings regarding whether OPA 649 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 TLAB decision goes to some length to reflect the evidence of the City’s expert witness.

63. The TLAB member considered the expert evidence of the City’s planner and contrasted it with the evidence of the appellant’s planner. The data of the City’s land use planner showed that the proposed frontages and lot areas were statistical outliers, and he defined “prevailing” using the official plan’s “most frequently occurring” standard. The appellant’s planner relied on a broader interpretation, opining that lots of the size proposed exist in some number in the neighbourhood. The member ultimately preferred the appellant’s quantitative approach. This type of evidentiary weighing falls within the member’s discretion and does not amount to a reviewable error.

64. It 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 policy 4.1.5 is superseded by OPA 649. 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.

PRIOR TLAB DECISIONS

65. The requester relied upon several TLAB decisions to argue that the TLAB member in this case failed to properly apply policy 4.1.5 and OPA 649: Goldberg Group (Re) 2024 ONTLAB 286; Grand Communities Corporation (Re) 2025 ONTLAB 319; Toronto (City) v. Inroads Consultants 2023 ONTLAB 131; Martin Rendl Associates (Re) 2024 ONTLAB 237; Kaucis (Re) 2025 ONTLAB 330

66. The applicant/owner disputes the applicability of the TLAB decisions filed by the City and relies upon other TLAB decisions in support of its position: Ghafoori (Re) 2024 ONTLAB 185; Javadzadeh (Re) 2025 ONTLAB 312. In response, the City argues that these cases put forward by the appellant are distinguishable and mischaracterized.

67. I have reviewed these decisions. But, as stated earlier, TLAB decisions are not binding on each other because each proposal that comes before the TLAB is unique and each application must be assessed on its own factual and evidentiary record.

68. The applicability of policy 4.1.5 in the other TLAB cases put forward by the City resulted in outcomes denying the applications of the owners. However, the conclusions in those cases were based on the specific lot characteristics, the neighbourhood contexts, and the land use planning evidence proffered.

69. In the matter at hand, the TLAB member was entitled to evaluate the evidence before them, in a manner consistent with the relevant statutory and policy framework. The requester’s position amounts to a disagreement with how the member weighed the evidence. There is no reviewable error because different TLAB members in different cases reached different outcomes based on different facts.

DECISION

70. The 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 requester. The request seeks to re-argue the application on its merits, which is not the function of Rule 31.

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

72. The 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.

73. The 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 them.

74. The 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.

75. Even 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.

76. I 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 or, in the alternative, direct that a new hearing before a differently constituted panel of the TLAB.

ORDER

77. The review request is refused, and the final decision and order dated May 23, 2025, is confirmed.

Y. Herscher Panel Member