Toronto Local Appeal Body
40 Orchard View Blvd, Suite 211 Toronto, Ontario M4R 1B9
25 136939 S45 20 TLAB
Akelius Canada Ltd (Re), 2026 ONTLAB 399
REVIEW REQUEST ORDER
Issuance Date: March 6, 2026
PROCEEDING COMMENCED UNDER Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")
Appellant(s): AKELIUS CANADA LTD
Applicant(s): JASON FUNG ARCHITECT INC
Property Address: 1420 KINGSTON RD
COA File No.: 24 238871 ESC 20 MV (A0285/24SC)
TLAB Case File No.: 25 136939 S45 20 TLAB
Hearing Date(s): July 17, 2025
Deadline Date for Closing Submissions/Undertakings:
Decision Delivered By: TLAB Vice-Chair A. Bassios
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
APPLICANT
JASON FUNG ARCHITECT INC
APPELLANT
AKELIUS CANADA LTD
M. MAZIERSKI
PARTY
K. GRUNWALD
PARTY
B. MACDONALD
PARTY
S. HALLIDAY
PARTY
J. JUAN
PARTY
A. RODGERS
REVIEW REQUEST NATURE AND RULE COMPLIANCE TO INITIATE
1On March 12, 2025, the Toronto Committee of Adjustment (COA) refused an application for variances to convert a storage room with storage lockers into two residential dwelling units on the ground floor of an existing four-storey apartment building.
2On March 28, 2025, an appeal of the COA decision was filed on behalf of the Owner.
3Five individuals, all tenants in the building, elected to become Parties to the Appeal.
4An elected Party, Jen Juan, filed a Notice of Motion requesting that the Appeal be dismissed on the grounds that the TLAB lacks jurisdiction to rule on the removal of the tenants’ storage lockers, which, it was asserted, falls under the jurisdiction of the Landlord and Tenant Board.
5A Response to Notice of Motion was filed on behalf of the Owner, supporting the validity of the TLAB’s jurisdiction to decide the minor variance application. The Response contains the following statement: “The minor variance approval requested by the applicant is independant of any rights, obligations, or approvals under the Residential Tenancies Act, and do does not affect any rights, obligations or approvals under the Residential Tenancies Act”.
6At the commencement of the scheduled Hearing on July 17, 2025, the presiding Member ruled on the Motion to dismiss. He determined that the TLAB did have jurisdiction and would decide the minor variances on the basis of the four tests mandated by s.45(1) of the Planning Act, without addressing any rights as between landlord and tenant that are the jurisdiction of the Landlord and Tenant Board.
7On July 25, 2025, Member Swinkin, the presiding Member, issued a Decision and Order dismissing the Appeal.
8On August 25, 2025, a Request to Review the final Decision of this Appeal (the Request) was filed on behalf of the Owner of 1420 Kingston Rd.
9The TLAB Chair has designated me to conduct the Review and make a decision in accordance with the Rules.
THE LEGISLATIVE AND POLICY FRAMEWORK
- 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
10The Request seeks remedy under Rule 31.16 c) of the TLAB’s Rules of Practice and Procedure (Rules) that the Final Decision and Order be cancelled, and a de novo Oral Hearing before a different TLAB Member be directed.
11The grounds cited in the Request for the Decision to be cancelled are that “the Decision was based in part on grounds that are outside of the TLAB’s jurisdiction”, (Rule 31.17 a)).
12The essence of the Request’s contention is that the Member took into account the effect that granting the variances would have on the building facilities and “operational and liveability factors” which are not regulated by land use planning instruments under the Planning Act, are correctly subject to the controls of the Residential Tenancies Act, and are therefore outside the jurisdiction of the TLAB.
13The second important assertion in the Request is that once fault is found with the decision because the Member acted outside of their jurisdiction, it is unnecessary for the fault to have resulted in a different final decision or final order. In other words, notwithstanding sufficient reasons having been provided for the Decision on the basis of the evidence, fact and law, an instance of jurisdictional breech is asserted to be sufficient to cancel the decision and return it for a new hearing.
14Before commencing a Review of the ground asserted in the Request, a reminder of the parameters of Rule 31 are helpful.
The task of the Reviewer is not to assess the “correctness” of the Decision, nor to take into consideration what another Adjudicator may or may not have decided having been presented with the same evidence in this case. The task of the Reviewer is to establish whether there are arguable, definable errors, and, as well, whether they are of a nature (i.e., are of such significance) that could meet the threshold established in the Rules.
In writing a decision, a TLAB Member must consider opinion and evidence, and decide what weight to ascribe to each, in coming to his or her conclusions. The Decision must provide its basis for coming to the conclusion it did, but it does not require an acknowledgement and repudiation (or concurrence with) every argument made, and not received as desired, by the requesting party.
The Grounds for Review mandated under TLAB Rule 31 set a consequential standard for findings, that the reasons and evidence are compelling, and further, under Rule 31.17 c) that an error of law or fact has been made which would likely have resulted in a different order or decision.
The basis for a decision must be understandable and, preferably, written in plain English. A Decision must reflect a suitable basis for its conclusions, taking into account relevant considerations and applying the law and policy germane to the TLAB’s mandate, including its own deliberations.
15The Review request did not include a copy of the Decision to be reviewed, but instead provided extracts of the Decision within the body of the Request document. I have, in this Decision, referenced the original Decision document[1] and, where appropriate, have included context and quotes from it that were not contained in the Request.
Application and Evidence
16Some brief information points regarding the application and Decision as set out below are helpful to understand the basis of the Request.
17The purpose of the proposal was to convert ground floor locker space within the existing apartment building into two new dwelling units on the ground floor.
18The property is designated Mixed Use in the Toronto Official Plan.
19The in-force Zoning By-law is the Scarborough Birchcliffe Zoning By-law No. 8786. An amendment to the By-law in 2010 appears to have rendered the building legal non-conforming as far as minimum parking supply, indoor amenity space and the location of residential dwelling units on the ground floor[2]. (I note, however, that the application came before the TLAB as an application under s.45(1) of the Planning Act which deals with variances from the Zoning By-law and not under s. 45(2) which deals with the expansion of a building or a use that is legal non-conforming).
20Three variances were required for the proposal.
Dwelling Units, Retirement Homes, Nursing Homes and Private Home Day Care shall only be permitted on or above the second storey of buildings (excluding the parking structure level).
No person shall erect or use a building containing 20 or more dwelling units unless amenity space is provided in accordance with the following: Type of Amenity Space Required Amenity space or contiguous amenity space, at least one of which contains a kitchen and a washroom: Minimum of 2 m2 of indoor amenity space for each dwelling unit.
Parking spaces shall be provided in accordance with the parking rates set out in Section 1.1….1 space per dwelling unit, excluding second suites.
21In addition to testimony from the Expert Witness, the Presiding Member heard from four of the opposing Parties about existing conditions in the building. In summary, they advised that there was a lack of parking, the snow was not removed from the site and imperfectly cleared, there was an insufficiency of the laundry facilities and there were equipment failures. None of the opposing Parties were pleased about the elimination of the majority of the storage lockers nor about smaller replacement lockers. The nuisance of living through the construction period was also marked as a concern.
Summary of Review Request Arguments
22The essential position of the Request is that the Decision was based in part on grounds that are outside the TLAB’s jurisdiction, involving the loss of tenant storage lockers as well as operational and liveability factors associated with laundry facilities, snow plowing and the nuisance of construction.
23The contention of the Request is that the conclusions of the Decision were not based on the desirability of a variance, or the variances together, but on the desirability of elements that lie outside the Official Plan, Zoning By-law and Planning Act.
“Every time that Member Swinkin is making a conclusion about a Planning Act test by taking into consideration the loss of ‘tenant storage lockers’, whose removal is not regulated by the Zoning By-Law (or Official Plan Policy 4.5.2(k)) and does not require Planning Act approval, he is acting outside of his personally acknowledged (at paragraph 6-7 of the Decisions) circumscribed jurisdiction.”
24The Request maintains that the Residential Tenancies Act governs how a decrease of services, such as removal of tenant storage lockers, is to be handled between the landlord and the tenant. Snow removal and laundry facilities are similarly regulated by the Residential Tenancies Act.
Findings of the Decision
25The Presiding Member made findings on three of the four tests, concluding that the variances collectively did not maintain the general intent and purpose of the Official Plan nor the Zoning By-law and did not meet the test of Desirable for the appropriate development or use of the land. For variances to be approved, they must meet all four tests; failure to meet even one of the tests is sufficient for the request to fail.
Findings re the general intent and purpose of the Zoning By-law
26The Decision noted an existing parking supply and parking management deficiency and saw nothing proposed to address or ameliorate the additional pressure of two more tenancies.
27The Decision concluded that on the grounds of the parking issue, “it is the Tribunal’s view here that elimination of the parking requirement associated with the proposal would not be in keeping with the general intent and purpose of the Zoning By-law”.
28There is no jurisdictional argument regarding this finding on the general intent and purpose of the parking provision in the in-force Zoning By-law. This finding alone is sufficient for the parking variance to fail, irrespective of findings regarding the other three tests. Further, the two proposed additional units cannot proceed without the parking variance and thus the proposal fails.
Findings re the general intent and purpose of the Official Plan
29The Presiding Member noted evidence on OP Policy 4.5.2 k) that requires indoor and outdoor recreation space for building residents be provided in every significant multi-unit residential development.
30Although the Expert Witness did acknowledge that the character and purpose of indoor and outdoor amenity space was different and therefore not interchangeable, he had attempted to argue policy conformity on the basis that the existing outdoor amenity space would be maintained through the proposal.
31The Decision records that the evidence made clear that the lack of indoor amenity space was a definite building deficit. “And with respect to the outdoor amenity space, the evidence was that the area was now being locked and, according to a communication from the Owner, was intended to be confined to use by tenants with pets. The photos provided did not depict these areas as places for recreation or social activities.”
32The following two paragraphs are the foundation of the Member’s decision with respect to meeting the general intent and purpose of the Official Plan:
“With reference to OP policy, the Tribunal comes back to the policy extract which was referenced earlier in the decision, Policy 4.5.2.k.,which states, “provide indoor and outdoor recreation space for building residents in every significant multi-unit residential development”.
The Tribunal would treat this as a significant multi-unit residential development. It is acknowledged by the Tribunal that this building was constructed before the current OP was adopted but the proposal here is going in the wrong direction of the OP which currently governs here. More units are being proposed in a building with no indoor amenity space and in the result, space which is presently being used for the benefit of the tenants is being taken away from them. This may not strictly speaking be indoor amenity space but it is clearly space which is available for the tenants’ benefit. In the Tribunal’s view, despite arguably providing the addition of two dwelling units to the housing stock of this area, a general goal of the OP, it is not possible to find that the variances will be in keeping with the intent and purpose of this other important goal of the OP.”
33I parse the logic of the Decision as follows:
The building was constructed before the OP was adopted and therefore the conditions and operation are not required to retrospectively comply with the current Official Plan. This is not true, however, of the application to permit the two new units; this proposal must meet the general intent of the current in-force Official Plan (and current By-law) for the variances to be approved.
Clearly, no indoor amenity space was to be provided, even in the small amount warranted by the two additional units. The Expert Witness had asserted that even though no indoor recreational or social space currently exists, or was to be provided, the existing outdoor amenity could be taken into account and therefore maintain the general intent and purpose of the policy.
The immediate question for adjudication was whether the general intent and purpose of the Official Plan was maintained. The Member crystalizes the issue that more units are being proposed in a building with no existing indoor amenity space. This indicates a point of view on the Member’s part that, in a policy context, the scope of the consideration is not confined to the failure to provide 4m2 of amenity space, it encompasses the effects of the proposal on the existing building and occupants.
The question then becomes can, (or how can?), the general intent and purpose of the Official Plan policy be met without indoor amenity space, as defined in the Official Plan? The Owner’s Expert had suggested that the outdoor amenity space would compensate and meet the intent of the policy. The Member did not accept that proposition, noting the limitations of the outdoor space in terms of access and condition.
The Member noted that the proposal is “going in the wrong direction of the OP”, in that there is no indoor amenity space, none was to be provided and further that “space which is presently being used for the benefit of the tenants is being taken away from them”. It is this final consideration in the Decision that the Request contends takes the Decision outside the TLAB’s jurisdiction.
34The very premise of a variance is that a departure from the letter of the Zoning By-law can be appropriate even if Official Plan policies will not be fully met. Can the general intent and purpose still be met? The Member has construed the general intent and purpose of the policy, if it is necessarily beyond the straightforward provision of indoor amenity space, to be the provision/ protection of space which is available for the tenants’ benefit.
35The Member concluded that not only did the proposal fail to meet any expectation of the policy with respect to indoor amenity space, but that by replacing indoor locker space with two additional units, it additionally undermined the spirit of the policy that there be indoor space provided for the benefit of the tenant body. (“Going in the wrong direction”). This statement captures the Member’s conception of the general intent and purpose of the policy and determines that the variance does not maintain that general intent and purpose.
36The Member’s determination was within the bounds of the test for compliance with the general intent and purpose of the Official Plan policy 4.5.2 k) by taking into account not only what would be added by the proposal but also what would be displaced.
37I do not find that the Member’s determination regarding the general intent and purpose of the Official Plan acted outside the TLAB’s jurisdiction. The Decision did not make any pronouncement about the number, size, location, or rent of the lockers, which would be a matter between the Landlord and tenants. It is correct in law that the lockers could be removed without any consideration of the Official Plan, but neither the lockers, nor any other indoor space devoted to the use of the tenant body in general, could be replaced by additional residential units without a determination of whether the end result maintained the general intent and purpose of OP Policy 4.5.2 k).
38It is worth noting that the fact that the Landlord Tenant Board has jurisdiction does not oust the TLAB’s jurisdiction under the “double aspect” or “overlapping” doctrine. Many tribunals have overlapping jurisdiction to regulate the same issues, and a court would not preclude a tribunal from considering an issue which, though within its jurisdiction, is more centrally within the mandate of another tribunal that has not commenced a proceeding.
Findings re the test of Desirable for the Appropriate Development or Use of the Land (Desirable)
39The Member in his Decision took guidance from the oft-cited case of Vincent v. DeGasperis, 2005[3] (DeGasperis) in applying the test of desirability, emphasising that the Divisional Court found that the issue was not that the variance was desirable from the perspective of the owners’ plans, but, rather, whether it was desirable from a planning and public interest point of view.
40The following paragraphs in the Decision (75, 76 and 77) capture the Member’s reasons for finding that the variances are not desirable.
“75. As referenced above, the Owner’s planner and counsel speak of the proposal in terms of an addition of two dwelling units to the City’’s housing stock and advance this as desirable.
However, the Tribunal has to consider this against the engagement, provision of very detailed evidence and very strong submissions made by the Tenant Parties. Their evidence was very much rooted in operational and liveability factors prevalent in this building and how they may be further affected by the proposal primarily in a negative way.
It was abundantly plain to the Tribunal that the proposal was not perceived by them to be at all desirable. In this instance, those Parties represent the community which would be impacted by the proposal and it is entirely appropriate that their perceptions be taken into account by the Tribunal especially in weighing the proposal against this test.”
41If I am to restate the prime contention of the Request in plain language, it is to assert that the only considerations that a Member can take into account in deciding on a Planning Act test are those which are regulated by the Zoning By-law, Official Plan and/or the Planning Act.
“51. …Member Swinkin is taking the position that non-planning issues, snow removal, laundry facilities, and construction nuisance, should be managed by the TLAB on the basis of the Planning Act which does not provide the TLAB with jurisdiction to address these non-planning issues…”
42In addition, the Request seems to assert a further narrowing of the consideration of impacts to the strict confines of the individual variances.
“24. Section 45(1) of the Planning Act does not ask whether the “proposal”, outside of the context of the “variance”, is “desirable for the appropriate development or use of the land.
“22. Despite the fact that the cited DeGasperis precedent deals with the desirability of the variance(s), which is/are governed by Section 45(1) of the Planning Act, Member Swinkin’s conclusion about desirability, at paragraph 77 of the Decision, refers to the desirability, from the tenant’s perspective, of the “proposal” rather than the desirability of the variance(s)”.
43It is not clear to me where the Requestor’s objection to consideration of the “proposal” vs the variance really lies. It is not clear from the Request what the purported transgression is. How should the Member have addressed the variances, individually or collectively, as divorced from the proposal? (The Request itself uses the term “proposal” to refer to their application and is used approximately 20 times in the body of the Review Request).
44In this case, my understanding would be that the proposal is to add two additional units within an existing building. The required variances are for parking, permission for residential units on the ground floor and waiving of the requirements for indoor amenity space.
45The closest I can find to a clear statement of the basis for this part of the complaint is the statement in paragraph 25 of the Request that asserts “The elimination of the ‘tenant storage locker’ space is not a variance”.
46I find this position of the Requestor to be a frustratingly closed loop, circular argument. The proposition is that if the outcome of a variance approval does not itself constitute a variance, it cannot be a consideration with respect to desirability of the requested variance.
47From his ruling on the initial motion, it was undeniably in the mind of the Member that it was not within his mandate to make a determination about the removal of the lockers.
48The Member did not, in fact, make any decision with respect to the lockers. The Member did not, in fact, take the position that non-planning issues, snow removal, laundry facilities, and construction nuisance, should be managed by the TLAB on the basis of the Planning Act.
49What the Member decided was that approving the requested variances would have undesirable consequences for the tenant body as a whole, in that indoor space currently used for the benefit of the tenant body in general would be displaced by additional residential units.
50In other words, the landlord may remove or reconfigure lockers in accordance with direction from the Landlord Tenant Board, they may create an office for property management or storage space for the superintendent without triggering the variances requested by the owner, but additional residential units may not be added without consideration under the Planning Act of the impacts, and desirability, of that proposal.
51It would seem to be redundant to note that each of the four statutory tests safeguards a different dimension of a land use planning decision. The fundamental purpose of this part of the land use planning framework is to locate the proposal within its context and evaluate the appropriateness of the proposal for its adherence to community goals (the Official Plan), community standards (the Zoning By-law), its impacts (Minor) and its overall desirability.
52The tests regarding the general purpose of the Official Plan and the Zoning By-law are necessarily confined to the parameters of the policies and zoning provisions contained within them. The tests for Minor and Desirable, however, are outward-looking in terms of the consequences approval of the variances could have on the broader public.
53The Member took direction from the Divisional Court in the matter of Vincent v. DeGasperis, 2005 CanLII 24263.
“[14] The second test requires the committee to consider and reach an opinion on the desirability of the variance sought for the appropriate development or use of the land, building or structure. This includes a consideration of the many factors that can affect the broad public interest as it relates to the development or use.
15Accordingly, in my view the Board was required to consider each variance sought and reach an opinion as to whether or not it, either alone or together with the other variances sought, was desirable for the appropriate use of the subject property. The issue was not whether the variance was desirable from the perspective of the DeGasperis’ plans for their home but, rather, whether it was desirable from a planning and public interest point of view.”
54I derive two important directions from the court’s decision. Firstly, the decision makes it clear that the intent and purpose of the test for desirability was not the desirability to the proponent, but instead emphasises the planning and public interest point of view. I take this to mean that the desirability of a variance is to be assessed in terms of how it affects others. This is explicitly the direction that the Member cited and depended upon in his Decision. Secondly, the court employs expansive language, including consideration of “many factors” and the “broad public interest”.
55I find that there is no basis for the assertion by the Requestor that, in considering the test for Desirable, the factors to be considered regarding the broad public interest are limited to those regulated by land use planning instruments under the Planning Act. The Requestor has provided no case law or references to support his assertion, except for the DeGasperis decision which I do not find enlightening on this point. As a principle, it also contradicts the double aspect doctrine.
56I make no assessment as to whether the Member made the right Decision; my task is to establish whether a verifiable error was made on the grounds that the TLAB acted outside of its jurisdiction.
57If a development fully complies with the requirements of the Zoning By-law, it is permitted as of right. The process by which an applicant applies for variances from the Zoning By-law is one where the burden rests on the applicant to show that what they are proposing to do is good planning and does not unduly impact those around the development. There is no right to a variance.
58I do not accept the premise of the Request that law or practice requires that the impact of an application under the Planning Act, facilitated by variances, should be separated and disregarded from consideration of desirability or broader public interest
59It is not tenable to argue in a land use planning framework that adjudication under the four tests should be confined only to what a proposal brings and not to what would be lost. Typical concerns in variance applications revolve around loss of privacy, sunlight, access to parkland, heritage features etc.. All of these relate to the potential negative impacts of a proposed development, in its specific context. Few of these aspects of concern are regulated specifically by the Planning Act.
60In this case, the existing conditions within the apartment building led the Member to decide that the granting of the variances would lead to approval of a proposal that was not in the public interest and was not desirable.
61The powers of the Committee (and the TLAB on appeal) are to authorize variances. Every application for variances lists the individual variances that are to be authorized along with any conditions on the approval. This is the legal format in which variance approvals are formalized. The powers of the COA and the TLAB are to authorize variances, but consideration of the desirability of the variances is not limited to the consideration of each variance alone and separated from either the cumulative impact of the variances together, or the impact of the proposed development in toto on the public.
CONCLUSION
62I find that the Member, in determining that the proposed two additional units would have consequences that are not in the public interest, acted within the scope and mandate of the four tests established for the authorization of variances. I specifically find that the Member applied the test for Desirable within the scope of established case law.
DECISION AND ORDER
63I confirm the Decision of the TLAB issued July 25, 2025, and dismiss the Review Request.
A. Bassios
Panel Chair
1Akelius Canada Ltd (Re), 2025 ONTLAB 343
2Decision paragraph 25
3CanLII 24263 (ON SCDC); 2005 CanLII 24263 (ON SCDC), 256 DLR (4th) 566; 12 MPLR (4th) 1.