Ms. Galbraith

The appellant appealed the Committee of Adjustment's refusal of variances to permit the continued operation of a ground floor restaurant patio in the rear yard of a semi-detached building.

The primary issue was a variance to the zoning by-law requirement that a patio be separated from a residential lot by at least 10 metres.

While the tribunal accepted expert acoustic evidence that a proposed fence would mitigate noise to ambient levels, it found that the general intent and purpose of the zoning by-law was to prevent any additional noise by requiring a permanent distance separation.

As the variance did not maintain the general intent and purpose of the zoning by-law, the appeal was dismissed and the variances were not authorized.

The appellant appealed a Licence Appeal Tribunal decision finding she was not catastrophically impaired under s. 3.1(1) 2. iii of the Statutory Accident Benefits Schedule.

The appellant suffered a severe and permanent alteration of the structure of her leg, but her functional mobility impairment (measured by the SCIM) was only temporary.

The Divisional Court upheld the adjudicator's interpretation that the SABS requires both the structural and functional alterations to be permanent to meet the catastrophic impairment threshold.

The appeal was dismissed.