Adam J. Brown

The City of Toronto appealed a decision of the Ontario Municipal Board that granted four minor variances to permit the construction of a three-storey retirement home in a Highway Commercial zone.

The Divisional Court allowed the appeal, finding the Board's decision unreasonable.

The Board failed to properly apply the four-part test under section 45(1) of the Planning Act, misinterpreted the Official Plan and zoning by-law, and failed to justify how significant departures from density limits and lot coverage requirements could be considered minor.

The City of Toronto sought leave to appeal a decision of the Ontario Municipal Board that allowed a developer's application for minor variances to permit a retirement residence.

The City argued the application should have proceeded as a rezoning and Official Plan amendment, as the proposal changed the permitted use and significantly exceeded lot coverage and density limits.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the Board's legal interpretation of the minor variance test under section 45(1) of the Planning Act and its application of the Official Plan and Secondary Plan.

The moving party sought leave to appeal a decision of the Ontario Municipal Board.

The Board had ruled it lacked jurisdiction to impose conditions on a private developer's subdivision approval for the benefit of an adjacent private landowner's future development.

The Divisional Court dismissed the application for leave, finding no reason to doubt the correctness of the Board's decision on jurisdiction and rejecting the argument that procedural defects could bestow jurisdiction.