Toronto Local Appeal Body
40 Orchard View Blvd, Suite 211
Toronto, Ontario M4R 1B9
2026-03-26
25155161 S45 18 TLAB
25155159 S45 18 TLAB
25155162 S53 18 TLAB
Chen (Re), 2026 ONTLAB 406
REVIEW REQUEST ORDER
Issuance Date:
March 26, 2026
PROCEEDING COMMENCED UNDER Section 53, subsection 53(19), Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")
Appellant(s):
L. CHEN
Applicant(s):
M. BEHAR PLANNING AND DESIGN INC.
Property Address:
100 ALFRED AVE
COA File No.:
24 213421 NNY 18 MV (A0478/24NY)
24 213403 NNY 18 MV (A0477/24NY)
24 213427 NNY 18 CO (B0038/24NY)
TLAB Case File No.:
25155161 S45 18 TLAB
25155159 S45 18 TLAB
25155162 S53 18 TLAB
Hearing Date(s):
SEPTEMBER 30, 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
Appellant
L. CHEN
M. NEMANIC
REVIEW REQUEST NATURE AND RULE COMPLIANCE TO INITIATE
1On April 17, 2025, the Toronto Committee of Adjustment refused applications for a consent to sever the subject property, together with variances for each of the proposed new lots.
2On May 6, 2025, the Owner/Appellant filed an appeal to the Toronto Local Appeal Body (TLAB).
3On October 23, 2025, Member Herscher, the presiding Member, issued a Decision and Order refusing the applications.
4On November 24, 2025, a Request to Review the final Decision of this Appeal (the Request) was filed on behalf of the Owner of 100 Alfred Ave.
5The TLAB Chair has designated me to conduct the Review and make a decision in accordance with the Rules.
THE LEGISLATIVE AND POLICY FRAMEWORK
Rule 3.0 (After December 2, 2020)
- 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
REMEDY REQUESTED
6The remedy sought is that the TLAB “exercise its discretion to cancel the Member’s Decision, approve the consent applications, and direct a new merit hearing to be heard before a different TLAB member regarding the minor variance applications”.
7Under TLAB Rule 31.16, there are only two possible final outcomes of a Review Request: The Reviewer may confirm the Final Decision and dismiss the Review Request, or they may cancel the Final Decision and direct a de novo Oral Hearing before a different TLAB Member.
8Under the TLAB Rules, it is not open to the Reviewer to approve any part of the applications under Appeal. If a consequential error is found, the Final Decision and Order must be cancelled, and a second process be undertaken to resolve the Appeal.
9As an alternative, the Requestor asks that both the consent and minor variance applications be heard before a different TLAB Member. This Review will proceed on the basis of this alternative request for remedy.
ASSERTED GROUNDS FOR REVIEW
10The grounds for granting the remedy requested in a Review are set out in TLAB Rule 31.17. The Request asserts that grounds b) and c) have been demonstrated.
That the TLAB:
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.
11The Requestor has cited the two grounds above. The Request has categorized the complaint into three categories, however, by separating errors of law and errors of fact, and further situating the alleged errors of law under 31.17 b), which responds to rules of natural justice or procedural fairness.
12In this Review, I have followed, more or less, the sequence of the assertions as presented. I shall, however, approach the purported errors of law under the auspices of Rule 31.17 c) which requires that any error must be of such a nature that it would have resulted in a different final decision or final order.
PARAMETERS OF A REVIEW
13Before 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 in consideration of any Review.
The first and most important reminder is that a Review Request is not afforded as an opportunity to re-litigate or reargue a point that was made but not favourably received in the Decision.
The task of the Reviewer is not to assess if the Decision is the right one, but to establish that the determination is within the range of reasonable outcomes. It is not to second guess 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 specifically 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.
REASONS FOR THE ASSERTION OF VIOLATION OF PROCEDURAL FAIRNESS
14In summary, the reasons for the assertion that procedural fairness was violated are that:
a. The member’s reasons ignored the relevance of another case (Souresrafil v. Toronto (City), 2023 ONTLAB 42 (TLAB).
b. Despite the “equal importance of qualitative and quantitative analysis per the evidence of the Expert Witness, the member’s reasons were entirely quantitative”.
c. The member’s reasons did not provide a justified basis for why the variances were refused.
a. Relevance of Souresrafil.
15The Request notes that the TLAB is not bound by precedent, but asserts that if a “significant” past decision is brought to an administrative decision-maker’s attention, such a decision should be considered or evaluated. The Request goes on to quote findings in that case which the Requestor would have preferred to have been mirrored in this 100 Alfred Ave Final Decision.
16A TLAB Appeal Decision must reflect a suitable basis for its conclusions, taking into account relevant considerations and applying law and policy germane to the TLAB’s mandate, including its own deliberations. In addressing this precedent-seeking assertion, it is incumbent on me as the Reviewer to apply my knowledge of the TLAB’s own deliberations to this question of obligatory response to a cited TLAB Decision.
17The reasons offered in the Souresrafil Decision are brief, comprising a single page of 7 paragraphs to underpin approval of a consent to sever along with 7 variances for each approved lot. It is not within my task to evaluate the robustness of that Decision, but I will note that I find no basis to agree with the Requestor that it is a particularly “significant” Decision in terms of its reasoning.
18There are numerous TLAB Decisions, including in the neighbourhood of the subject property, that rely on an examination of those proposed developments closely according to the development criteria and definitions set out in Official Plan policy 4.1.5, similar to that which the Member exercised in this case.
19In paragraph 16 of the Request, the Requestor asserts as follows:
In the request for review decision of Hayes Collin Steinberg (Re), TLAB File No. 19 141090 S45 15 TLAB, the member determined that an independent assessment of statistics, percentages, and FSI as well as independent case-law research, without meaningfully addressing the policy tests of Section 4.1.5 of the Official Plan was unfair.
20I find this assertion to be somewhat misleading with respect to what the referenced Decision actually said. Former TLAB Chair Lord wrote:
“I am uncomfortable with the application of the evaluation criteria of the Official Plan being essentially absent and the focus fixation on design and semi-detached units, for which no policy support is referenced.”
And further, “I feel I am precluded from assessing the evidentiary merit and weight applied by the Member; however, when that weight has the appearance of being sole sourced to ancillary factors of design and housing type to the exclusion of other defined relevant assessment criteria, the concern for misdirection arises.
21To my mind, Hayes is not helpful to the petitioner. The Decision stressed the importance of the evaluation criteria of the Official Plan, which is exactly what is evident in the Decision now being reviewed. There is no foundation to suggest that the Member in this case strayed into independent gathering of evidence or into independent case law research. She, as is her duty, evaluated the evidence presented to her in the context of Official Plan policy.
22I note, as an aside, that the Decision in Souresrafil also exhibits the characteristic that Chair Lord criticized, viz that the evaluation criteria of the Official Plan are absent from the Decision. The Souresrafil Decision goes as far as to overtly reject the requirement to conduct a detailed evaluation of the “numerical requirements” of particular sections of the Official Plan.
23In administrative law, the acceptance and weighing of evidence is remitted to the trier of fact. It is that individual who is charged with the broad responsibility to advance the public interest by hearing opinion evidence and applying law and policy and their own knowledge to matters for dispute resolution.
24Ultimately, the TLAB’s own decisions do not constitute binding precedent for other TLAB cases. The only case law binding upon the TLAB is that which is derived from the courts. TLAB case references are offered to presiding Members in the hope that they will provide helpful insight to the Member in writing their Decision, but the Member is not obligated to address case references, refute them as references, or take as foundational a single Decision offered without context from other Decisions within the body of TLAB determinations.
25The Member was not obligated to respond to the findings of a different case, responding to a different context, with a different package of variances requested. That the Member did not assign sufficient weight to the case reference for it to merit consideration in her Decision is her prerogative, and I find no violation of procedural fairness occurred.
b. Quantitative vs Qualitative
26The Request asserts that “despite the equal importance of qualitative and quantitative analysis per Ms. Kakish’s evidence, the Member’s Reasons were entirely quantitative” and that therefore the rules of natural justice and procedural fairness have been violated.
27The Expert Witness Statement submitted in support of the applications did not proffer the opinion that there is an equal importance to qualitative and quantitative analysis. The Statement mentioned a qualitative approach only once, opining that due to the varying nature of the frontages on the streets in the immediate neighbourhood context, the proposed setbacks are consistent with the neighbourhood.
28Helpfully, a transcript of the Hearing provided in the submission materials allows me to understand that substantive oral evidence was provided on what might be understood to be “qualitative” analysis. From the transcript, I understand the opinion of the Expert Witness to be that a quantitative analysis is only half of a good planning analysis and that a site visit and the experience of the context of the neighbourhood comprises the other half. In this vein, the argument was made that a person can “tell the difference” on the ground between a 10.5m and a 16.5m lot frontage, but not between a 8.5m frontage and a 10.5m frontage.
29The Member heard the evidence of the Expert and did not choose to operationalize her advice in the Decision. From the transcript, my sense is that this “equal importance” advice was offered in the spirit of good planning, and not expressed as a requirement of policy or under any other mandated imperative.
30A review request is not afforded as an opportunity to re-litigate or reargue a point that was made but not adopted by the decision-maker. I am to give deference to the factual findings of the seized Member and provided that the decision-maker has provided replicable and reasonable grounds for their findings, their responsibility is met. My task is not to assess the correctness of the Decision, but to establish that the determination is within the range of reasonable outcomes.
31Having heard the evidence, and having made observations, the Member is entitled to formulate their own opinion on acceptability or disagreement with the professional witness. To put a fine point on it, the opinion of an Expert Witness is just that, an opinion. It is part of the job function of the TLAB Member to weigh the evidence and advice offered.
32The use of so-called qualitative, or more impressionistic, analysis can be employed in planning analyses to perhaps persuade the adjudicator that a proposal can fit the neighbourhood even if it does not fully meet the standards set out in the criteria for new development. The only mandated approach, however, is that which is set out in detail and specificity in the Official Plan. (For Neighbourhoods, these directions are contained in OP Policy 4.1.5). In other words, a “qualitative” analysis is not an alternative approach of equal standing with the prescriptive directions contained in the Official Plan.
33I find no error in the Member’s Decision to evaluate the evidence closely in accordance with OP Policy 4.1.5. The Member is fully within her prerogative to discount opinion from an Expert that a different approach has merit, or that their approach is equally as important as the directives of the Official Plan.
c. Justified basis for refusal
34The assertion made is that it was unfair for the Member to refuse the minor variance applications without applying the four tests at paragraph 76 of her reasons. The Request further asserts that “While the member was entitled to not consider whether the minor variance applications should be approved in light her Decision to refuse the consent applications, the member was not entitled to refuse them for the Reasons that she did.”
35The Decision paragraphs 75 and 76 are as follows:
Since the severance application is refused it is unnecessary to consider whether the variances applied for meet the four tests of the Planning Act. The variances exist because of the proposed creation of the two lots on which the dwellings were to be located. Without the creation of the two lots the variances are not achievable.
The findings above on their own are sufficient for both the consent-to-sever and the variances to fail. For completeness, however, I find that the application for minor variances do not meet the tests outlined in subsection 45(1) of the Planning Act and are therefore refused. The variances are not in keeping with the general intent and purpose of the official plan or zoning by-law and are not desirable for the appropriate development of the land.
36The Member was very clear that approval of the variances was not possible since the TLAB cannot approve variances for lots that will not exist. This is the reason underlying her formal refusal of the variances, that they necessarily do not meet the four tests since they are not viable in those circumstances.
37The Member has provided a sound reason for refusal of the variances, i.e. that they are not viable without a severance approval. There is no foundation for the variances to rest upon and they therefore necessarily fail. There is no purpose in analysing the proposed variances as a theoretical exercise and this is not required. The reasoning of the Member stands. I find no unfairness to the Appellant.
Procedural Fairness Conclusion
38The unfairness assertions of the Requestor hinge largely on the complaint that the Member did not respond to their evidence in the way that they would have preferred. It must be understood that it is not the responsibility of the Member to refute the arguments of the Party, but rather to lay down a suitable basis for their own conclusions, taking into account relevant considerations and facts. The Member did this by following closely the detailed directions of the Official Plan with respect to how the development criteria in Neighbourhood designations are to be applied.
39That the arguments of the Requestor were not supported does not constitute an error on the part of the Member in absence of a specific, identifiable, compelling, actual error.
40I find no grounds on which to conclude that the Decision violated the rules of natural justice or procedural fairness.
REASONS FOR THE ASSERTION OF LAW THAT WOULD HAVE RESULTED IN A DIFFERENT DECISION OR FINAL ORDER
41In summary, the reasons for the assertion that the Member made errors of law are that:
a. The Member only evaluated the proposal against the physical characteristics of 12m to 15.5m frontages and 500-700m² lot areas, contrary to the Expert’s evidence.
b. The Member erred in requiring the proposal’s frontages and lot areas to be the most frequently occurring rather than existing in substantial numbers and to always be the same as or exceed the frontage and lot areas of the immediate context.
c. The Member’s Decision and Reasons were based on an entirely quantitative analysis.
42The Requestor has not identified what statute, legal rule, or principle is alleged to have been violated. Essentially, the “error” alleged is that the Member did not follow the analysis and opinion of the Expert Witness.
43I will not repeat the conclusions drawn above regarding the violation of the rules of natural justice or procedural fairness assertions. That the Member’s analysis and examination of the directions of the Planning Act and the Official Plan did not lead her to the same conclusion as the Expert offered does not constitute an error on her part. This analysis is part of the very mandate of an adjudicator.
44This part of the claim repeats evidence that was heard and not accepted by the Member. A review is not a forum for the rearguing of the evidence. For an error of law to be established, the Requestor must identify and establish an actual error of law. None such has been identified and none has been established.
REASONS FOR THE ASSERTION OF AN ERROR OF FACT THAT WOULD HAVE RESULTED IN A DIFFERENT DECISION OR FINAL ORDER
45The reasons for the assertion that there were errors of fact are that:
a. The Member concluded that there were no comparable frontages within the same block as the 100 Alfred Ave site. “This finding conflicts with Ms. Kakish’s evidence”.
b. The member erred in concluding that Ms. Kakish’s evidence did not identify “[t]he lots with a frontage of between 9.14m and 10.5m.” Ms. Kakish did identify these lots.
c. The member erred in concluding that that there were only “two or three” properties in the immediate context that had equivalent lot areas. However, Ms. Kakish’s evidence identified fourteen comparable lots, which the member appeared to be unaware of.
a. Comparable frontages within the same block as the 100 Alfred Ave site
46The Request cites paragraph 68 in the Decision as the source of this alleged error. It is not clear to me how this statement in the Decision is interpreted as an error.
- In terms of the immediate neighbourhood, Policy 4.1.5 states that the physical character of the geographic neighbourhood includes the broader context as well as the same street, which includes the same block and opposite block:
"… both the physical characteristics of the entire geographic area in proximity to the proposed development (the broader context) and the physical characteristics of the properties that face the same street as the proposed development in the same block and the block opposite the proposed development (the immediate context).”
- On both sides of the block of Alfred Avenue where the subject property is located, Ms. Kakish’s evidence was that lot frontages generally range between 12m and 15.4m. The subject property and one other lot on the block are over 18m in frontage. A frontage of 9.14m is manifestly not prevalent on either side of that block.
47There is no error in the Decision with respect to the frontages of properties on either side of the street on the block where the subject property is located. Properties at addresses 96, 98, 101 to 113, and 115 Alfred Ave all have frontages greater than 12m as per the Expert’s Witness Statement (Request pages 209 to 226 and page 346).
48The portions of the Expert Witness Statement to which I was directed for the Expert’s evidence in support of the assertion referred to properties on Kenneth Ave, and Spring Garden Ave, not Alfred Ave.
49Paragraphs 67 and 68 are key paragraphs in the Decision. They point directly and exactly to the OP Policy’s direction on what constitutes the immediate context: the properties that face the same street as the proposed development in the same block and the block opposite the proposed development. (My emphasis). Kenneth Ave and Spring Garden Ave would not be part of the immediate context of 100 Alfred Ave.
50There is some additional consideration in OP Policy 4.1.5 with respect to the application of the definition “prevailing” which relates to the defined immediate context:
While prevailing will mean most frequently occurring for purposes of this policy, this Plan recognizes that some geographic neighbourhoods contain a mix of physical characters. In such cases, the direction to respect and reinforce the prevailing physical character will not preclude development whose physical characteristics are not the most frequently occurring but do exist in substantial numbers within the geographic neighbourhood, provided that the physical characteristics of the proposed development are materially consistent with the physical character of the geographic neighbourhood and already have a significant presence on properties located in the immediate context or abutting the same street in the immediately adjacent block(s) within the geographic neighbourhood. (My emphasis).
51In this case, the immediate context is the north and south sides of Alfred Ave west of Dudley Ave. The additional consideration afforded to the properties abutting the same street in the immediately adjacent blocks would be only the block of Alfred Ave between Dudley Ave and Willowdale Ave, mentioned in the Decision. From the tables contained in the Expert Witness Statement, these properties on Alfred Ave east of the subject property block would similarly all exceed 12m.
52The Expert advised that the immediate context was constituted by the block on Alfred Ave as well as blocks on Spring Garden and Kenneth Aves. The immediate context is the same street as the subject property; it is not another street around the corner and out of sight.
53The error is on the part of the Expert and the Request, not the Member who articulated the Official Plan definitions and directions and applied them to the evidence that had been provided through the proceedings. The Member correctly found that a 9.14m frontage is manifestly not prevalent on either side of that block of Alfred Ave, i.e. the immediate context.
b. Identification of lots with a frontage of between 9.14m and 10.5m
54The Request refers to paragraph 58 of the Decision to assert that the Member erred in concluding that the Expert’s evidence did not identify the lots with a frontage between 9.14m and 10.5m
55Paragraphs 57 and 58 of the Decision are as follows:
According to the map on page 44 of her expert witness statement that Ms. Kakish spoke to, there are 15 lots with less than 10.5m frontage within the hundred or so comparable lots in the immediate neighbourhood. Of those 15 lots, the lots with a frontage of between 9.14m and 10.5m were not identified on that map.
As well, in her chart on page 193 of the witness statement, Ms. Kakish lists 112 lots out of 196 in the quadrant that have a frontage of less than 10.5m. The lots with a frontage of between 9.14m and 10.5m were not identified. Ms. Kakish testified that the townhouse subdivision development of 101 lots can be removed from this calculation, so that leaves approximately 12 lots out of 95.
56In response, the Request identified specific pages of the Expert Witness Statement wherein it was asserted that the Expert had identified those lots, one of those being the chart on page 193 of the Witness Statement.
57The referenced chart does not, in fact, identify lots with a frontage between 9.14m and 10.5m, nor does it identify the number of those lots. The grouping identifies the number of lots between 8.5m and 10.5m.
58The other pages in the Expert Witness Statement to which I was directed in order to find where the Expert identified lots between 9.14m and 10.5m are the pages that contain the listing of each individual property address (perhaps 637 addresses in total).
59I find the question of whether the Expert did at first identify, or did not identify, the lots to be inconsequential. What is important in the Decision is the Member’s observation in paragraph 60.
- It should be noted that Ms. Kakish did provide comprehensive breakdowns in her witness statement of all properties in the quadrants regarding lot area and frontage size, but the charts that she relied upon in oral evidence were premised upon including the proposal in groupings that included properties with larger lot areas (up to 400m²) and larger frontages (up to 10.5m) and seemed not to delineate properties that were more closely aligned in configuration with the proposed lots. (My emphasis).
60In any event, the Decision goes on to acknowledge that in response to a query for more specific information (I presume in a useable format), Ms. Kakish (the Expert) prepared a supplementary chart (Exhibit #2) that showed a more detailed breakdown of the properties within the quadrants that had frontages of less than 10.6m, accompanied by their lot sizes.
61Paragraph 58 of the Decision was a lead-up to the rest of the discussion, including paragraph 60, where the additional information was acknowledged. The Member reasonably traced the path to the preparation of Exhibit #2. The assertion of whether the properties were identified at first is entirely inconsequential to the Decision.
c. Only “two or three” Properties in the immediate context that had Equivalent Lot Areas vs 14 in evidence
62Paragraph 63 of the Decision states as follows:
- However, with respect to lot area, the difference was more marked. There are two or three properties within quadrant two that have lot areas that are equivalent to the lot areas proposed in the new lots. While some lots are not that much larger than the proposed lots and there are several between 300-400m², only two-three lots with a lot area of around 310.53m² means that lots of the size in the application are not representative of the prevailing lot configuration in the neighbourhood.
63The Requestor seems to have misread this paragraph of the Decision. The Member is referring to the neighbourhood, i.e. the broader context, not the immediate context.
64Regarding the supposed error of the Member’s counting of lots, the first reference in the Expert Witness Statement to which I was directed by the Request did not identify lot areas closely aligned to those of the proposed lots. The table on page 188 of the Expert Witness Statement categorized all lots between 300m² and 400m². The rest of the pages referenced contained the address-by-address tabulation, presumably implying that the Member could have sorted through that chart to find the relevant lot areas.
65To confirm the accuracy of the Decision, I scanned the address-by-address chart for quadrant two, on pages 204 and 205 of the Expert Witness Statement. I found only two, perhaps three, properties with lot areas around 310.53m² proposed in the applications.
66In the context of the allegation of error, from the data provided by the Expert, there are no lots in the immediate context that are comparable to the proposed lots, even if the Member had accepted the categorization of “comparable lots” that had been advocated by the Expert.
67The statement in the Decision is accurate. The Member was seeking to establish how many of the lots in the geographic area were close to the lot area proposed in these applications. The Requestor’s assertion that the Expert’s evidence identified fourteen “comparable” lots highlights his preferred categorization of the size of lots that are “comparable”. It does not constitute an error on the part of the Member.
68The Member found at paragraph 72 of the Decision that the proposed lot frontages and lot areas do not reflect the prevailing character of the immediate context. This is borne out by confirmation that there are no “comparable” lots in the immediate context. The proposed lots do not therefore meet the requirement of OP Policy 4.1.5 that development must be materially consistent with the prevailing physical character of properties in both the broader and immediate contexts.
69Even if I had found any error in the Member’s accounting of lot frontages and areas, which I do not, these alleged errors would not have been such that they would likely have resulted in a different Final Decision or final order.
CONCLUSION
70In the Decision, the Member provided clear reasons for her determination that the proposed new lots do not represent the prevailing lot size or configuration as mandated by OP Policy 4.1.5 b).
71The Decision reinforced the requirement of OP Policy 4.1.5 that the physical character of the neighbourhood includes both the physical characteristics of the broader context and the immediate context. Further, in instances of significant difference between these two contexts, the immediate context will be considered of greater relevance.
72The Member found that the Appellant did not establish that the proposed lots maintained the prevailing character of the neighbourhood or of the immediate context, and further established that there were no lot frontages at all within the immediate context (or in the block abutting the same street) that were within the category identified by the Expert as materially consistent with the lot frontages and lot areas proposed.
73I find no grounds under TLAB Rule 31.17 b) that the rules of natural justice or procedural fairness were violated, and I find no grounds under TLAB Rule 31.17 c) that an error of law or fact was made.
DECISION AND ORDER
74I confirm the Decision of the TLAB issued October 23, 2025, and dismiss the Review Request.
A. Bassios
Panel Chair