Brendan O’Callaghan

The City of Toronto sought leave to appeal a decision of the Ontario Municipal Board (OMB) which found it had jurisdiction to determine whether site plan control applied to a proposed change of use for the respondent's property.

The Chief Building Official had refused a building permit on the basis that site plan control applied.

The Divisional Court granted leave to appeal, finding reason to doubt the correctness of the OMB's decision on a true question of jurisdiction, and noting the issue was of sufficient general importance.

The applicant sought declaratory relief that it was exempt from a parkland levy imposed as a condition of obtaining a building permit for redevelopment of a restaurant on municipal lands.

The municipality argued the application improperly circumvented the statutory appeal mechanism under s. 25(1) of the Building Code Act, 1992, which provides a 20‑day appeal period from decisions of a chief building official.

The court held that the proper procedure was a statutory appeal, not an application for declaratory relief, and that the applicant had failed to pursue the appeal within the prescribed timeframe.

The court declined to convert the application into a statutory appeal or extend the appeal deadline, finding the delay unreasonable and prejudicial to the municipality.

The application was dismissed and costs were awarded to the respondent.

The appellant appealed an Ontario Municipal Board decision awarding the respondents compensation under the Expropriations Act.

The appellant challenged the award of disturbance damages for pre-expropriation business losses and the Board's refusal to reduce the property's market value due to environmental contaminants.

The respondents cross-appealed the Board's refusal to award interest on the disturbance damages.

The Divisional Court dismissed both the appeal and cross-appeal, finding that the Board correctly applied the law regarding disturbance damages and reasonably concluded that the environmental contaminants did not reduce the property's market value.

The Court also upheld the refusal to award interest on disturbance damages, as it is not provided for in the Act.

The appeal was allowed only to correct an arithmetical error in the business loss calculation.

Following the dismissal of the appellant's appeal, the successful respondent sought costs of $35,000 on a partial indemnity basis, which included costs thrown away for two prior adjournments.

The appellant argued the amount was excessive and suggested an award between $18,000 and $22,000.

The Divisional Court found the claimed costs thrown away to be excessive but agreed the respondent was entitled to costs for the adjournments.

The court fixed costs at $30,000 all-inclusive, to be set-off against the sum owed by the respondent to the appellant under an Ontario Municipal Board award.

The applicants sought leave to appeal decisions of the Ontario Municipal Board that approved a development application.

The applicants argued the approval effectively down-zoned a neighbouring property by creating a key lot, without a rezoning application being before the Board.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the Board's jurisdiction to change zoning without following the procedures in the Planning Act, and concluding the issue was of sufficient importance to municipalities to warrant the attention of the full panel.

The appellant appealed an Ontario Municipal Board decision determining compensation for the City of Toronto's expropriation of subsurface easements for existing pipelines.

The appellant argued the Board erred by denying damages for business losses caused by delay and by failing to award interest and costs.

The appellant also sought to adduce fresh evidence to increase its claim for injurious affection.

The Divisional Court dismissed the appeal, finding the Board's conclusion that there was no causal nexus between the expropriation and the business losses was reasonable.

The Court also refused to admit the fresh evidence, as it could have been adduced earlier and would not have affected the result.

At the outset of the appeal, the appellant sought leave to file an Amended Notice of Appeal and adduce fresh evidence.

The court refused leave to add the first proposed ground of appeal regarding an increase in damages for injurious affection, and consequently refused the fresh evidence in support of it.

The court reserved its decision on the second proposed ground and its associated fresh evidence until after hearing argument on the appeal itself, as it was inextricably interwoven with an existing ground of appeal.

The applicants sought leave to appeal two Ontario Municipal Board (OMB) decisions refusing an Official Plan and zoning bylaw amendment for a retail development on formerly industrial lands.

The applicants argued the OMB erred in law by applying a 1994 Official Plan policy to lands that had been redesignated as 'employment areas' under the 2002 Official Plan.

The Divisional Court denied leave to appeal, finding no reason to doubt the legal correctness of the OMB's policy-based decision, which reasonably interpreted the Official Plan and assessed the impact of 'retail contagion' on surrounding lands.

The solicitor of record for the appellant brought a motion to be removed due to a breakdown in the solicitor-client relationship.

The court granted the motion, finding the breakdown apparent.

Given the complexity of the matter, the court adjourned the scheduled appeal sine die to allow the appellant 40 days to obtain new counsel.

The issue of wasted costs for the adjournment was left to the panel ultimately hearing the appeal.