The landscape of Toronto urban planning is often a slow moving machine, but a recent decision from the Toronto Local Appeal Body (TLAB) regarding a property at 40 Mitchell Avenue has brought a definitive end to a file that lingered in the system for more than half a decade1. On December 30, 2025, Vice-Chair A. Bassios issued a motion decision and order that dismissed an appeal without a full hearing, citing the appellant’s apparent abandonment of the case and the legal impossibility of the proposed changes following a heritage designation. The case, officially known as Patel (Re), 2025 ONTLAB 380, serves as a detailed chronicle of how shifting municipal priorities, such as heritage preservation, can fundamentally alter the viability of a development project.
The history of the dispute dates back to July 2019, when the Toronto City Council first signaled its intention to protect the properties at 40 and 44 Mitchell Avenue. These buildings, situated in a historic pocket of the city, were identified as having cultural heritage value or interest under Part IV of the Ontario Heritage Act. Despite this early warning of future restrictions, the owners moved forward with development plans nearly two years later. In April 2021, an application was submitted to the Committee of Adjustment seeking consent to sever the land at 40 Mitchell Avenue. The goal was to shrink the existing lot at number 40 and simultaneously increase the size of the neighboring lot at 44 Mitchell Avenue to the west. Alongside this severance request, the applicant filed for several minor variances to accommodate the new lot dimensions.
By the time the Committee of Adjustment met to consider these applications on July 21, 2021, the heritage status of the properties had become a central concern. Recognizing that a formal designation was imminent, the Committee decided to defer the hearing of the consent and variance applications. This move was intended to ensure that any planning decisions would be made with full knowledge of the heritage restrictions. However, the applicants chose not to wait for the local process to resolve itself. Only five days after the deferral, on July 26, 2021, the owners appealed the matter to the Toronto Local Appeal Body. They based their appeal on the failure of the Committee of Adjustment to make a decision on the severance within the 90 day window required by the Planning Act.
As the appeal moved to the provincial level, the City of Toronto solidified its stance on the properties. On October 20, 2021, City Council passed By-law 820-2021, officially designating 40 and 44 Mitchell Avenue as heritage sites. This designation drastically changed the legal reality for the land. Because the properties were now protected, any plan to alter or demolish the existing structures would require specific permissions that are notoriously difficult to obtain. The appeal before the Toronto Local Appeal Body was subsequently adjourned without a specific return date, with the City’s agreement, while everyone involved waited to see how the heritage designation would impact the broader development goals for the site.
For the next four years, the file remained open but largely inactive. The Toronto Local Appeal Body made numerous attempts over the intervening years to secure updates from the appellant. While legal representatives for the owners initially requested that the adjournment continue so they could file further applications or take other actions, these promises never materialized into concrete steps. The timelines provided by the appellant’s counsel came and went without the necessary filings. By September 2025, the tribunal reached a breaking point regarding the delay. A virtual prehearing was scheduled for September 25, 2025, with the goal of finally resolving the outstanding issues and setting a path toward a final hearing.
In the lead up to that prehearing, tribunal staff reached out to the legal firm that had originally filed the appeal. They were informed that the firm was no longer retained by the owners. This left the case in a precarious state, as there was no longer a clear point of contact for the appellant. Notice of the prehearing was sent directly to the individual owner named in the appeal and was posted publicly on the City of Toronto website. Despite these efforts to ensure the owner was aware of the proceedings, no representative appeared at the virtual prehearing. This absence prompted a stern follow-up from the tribunal staff, who sent an email on behalf of the presiding member warning that the inordinate delay had made further adjournments untenable.
The email sent to the appellant was clear. It noted that the application had been outstanding since July 2021 and that despite regular correspondence over four years, no action had been taken to move the hearing forward. The tribunal indicated that if the owners did not intend to pursue the appeal, they could simply withdraw it to end the matter. However, the message also warned that if no response was received, a hearing date would be set, and the owners would be responsible for meeting all procedural deadlines. When no reply arrived, the tribunal set a final hearing date for January 29, 2026. This triggered a series of mandatory filing deadlines for evidence and witness statements, all of which the appellant failed to meet.
Faced with a complete lack of participation from the other side, the City of Toronto filed a motion on December 5, 2025, to dismiss the appeal entirely. The City argued that the case should be resolved before the January hearing date to avoid a further waste of public resources. They supported their motion with an affidavit from a city official and presented several grounds for dismissal. Primary among these were the arguments that the appellant had abandoned the appeal through their conduct and that the appeal itself had no reasonable prospect of success. The City also pointed out that the heritage designation now precluded the lot line adjustment the owners had originally sought.
The legal analysis provided by Vice-Chair Bassios focused heavily on the duty of the tribunal to ensure a just, expeditious, and cost effective determination of proceedings. The decision noted that the tribunal had made every effort to protect procedural fairness and provide the owners with an opportunity to argue their case. However, the complete silence from the appellant, the failure to participate in the prehearing, and the lack of response to the City’s motion led to the conclusion that the appeal had been abandoned. The tribunal also noted that the City had attempted to contact the appellant’s representative by phone in November 2025. During that call, the representative reportedly stated they did not intend to proceed and would withdraw the appeal, though they never actually followed through with the formal paperwork.
Beyond the procedural failures, the tribunal addressed the substantive planning issues that made the appeal unviable. The properties at 40 and 44 Mitchell Avenue are semi detached houses. The heritage designation means the structures cannot be demolished or significantly altered. The original severance application sought to move the lot line that currently runs through the party wall of these two buildings. Vice-Chair Bassios observed that if the severance were granted now, it would result in a lot line running through a protected heritage structure. This would create a bizarre and undesirable legal situation where an owner of one lot would theoretically have rights over a portion of a building on another lot that they are legally forbidden from changing.
In the final assessment, the tribunal characterized the appeal as a remnant of an old plan to demolish the houses, a plan that was effectively killed by the heritage designation. Without accompanying applications for alterations or variances, the severance on its own made no planning sense. The decision concluded that convening a full hearing would be a wasteful consumption of resources for both the tribunal and the City. By granting the motion to dismiss, the Toronto Local Appeal Body has finally closed a file that served as a four year placeholder for a development project that the current heritage laws no longer permit. The hearing date previously set for late January has been vacated, and the City’s request for a resolution has been fully realized.
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