DIVISIONAL COURT FILE NO.: 775/03 777/03

DATE: 20040322

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

THE ROSEDALE GOLF ASSOCIATION LIMITED

F.J.C. Newbould, Q.C., F.F. Coburn

for the Applicant

Applicant

• and -

FREDDY DEGASPERIS JR. and WENDY DEGASPERIS

Alan B. Dryer, O. Kahane-Rapport for the Respondents

Respondents

AND B E T W E E N:

KITSON VINCENT

N. Jane Pepino, Q.C.

for the Applicant

Applicant

• and -

FREDDY DEGASPERIS JR. and WENDY DEGASPERIS

Alan B. Dryer, O. Kahane-Rapport for the Respondents

Respondents

HEARD: March 12, 2004

CUNNINGHAM A.C.J.

1This motion is brought for leave to appeal from a decision of Board member J.L. O’Brien, Vice-Chair of the Ontario Municipal Board (OMB) in Case No. PL030529 and No. 1637 of the same date. In the matter before the OMB, the respondents were successful in their appeal from a decision of the Committee of Adjustment dismissing their application for variances from the provisions of By-law 7625 as amended, of the City of Toronto (formerly North York) (the by-law) respecting property located at 35 Green Valley Road in the City of Toronto (the subject property).

2In their appeal to the OMB, the respondents herein sought minor variances in order to allow them to construct a completely new two-storey building on the subject property. The proposed new building did not comply with the by-law in a number of respects, including increased building length and height, and the construction of an 81.47 square metre second floor balcony where the by-law in question restricts the area balconies to 3.8 square metres.

3An appeal lies from a decision of the OMB to the Divisional Court, with leave of the Divisional Court, on a question of law. The test on a motion for leave from a decision of the OMB is whether there is some reason to doubt the correctness of the Board’s decision, and the proposed appeal raises a point of law sufficient to warrant the attention of the Divisional Court (see Juno Developments (Parry Sound) Ltd. v. Parry Sound (Town) (1997), 99 O.A.C. 95 (Div.Ct.) at p. 97 and Eastpine Kennedy-Steeles Ltd. v. Markham (Town) (2002), 18 M.P.L.R. (3rd) 57. The question of law involved need not be of general importance, but rather may be limited to matters relevant to the parties while raising a question of sufficient importance to merit the court’s attention. The moving parties argue that if this decision is permitted to stand, the interpretation of ss. 45(1) of the Planning Act could be fundamentally altered by the Board thereby creating uncertainty in the manner in which the Board applies this section.

4The respondents argue that the test on a motion for leave to appeal a decision of the OMB has been modified by Essex (City) v. The Material Handling Problems Solvers Inc. [2003] O.J. No. 4619 (Div.Ct.). In that case, Blair J. (as he then was) held that where the standard of review is reasonableness (as it would be given the OMB’s specialized expertise in the developing, interpreting and applying its own policies) the branch of the test dealing with the correctness of the decision ought to be more aptly worded: “is there reason to doubt the reasonableness of the OMB’s decision”. I am not sure this modification is appropriate. When questions of law are involved, correctness is the standard of review and simply because an administrative tribunal has a specialized expertise does not in my view mean that on questions of law the correctness standard ought to be modified.

5The moving parties raise four issues which they say demonstrate how the OMB erred in law. These issues are as follows:

1. That the OMB erred in law by subsuming three of the four tests under ss. 45(1) of the Planning Act to the sole question of impact, thereby failing to properly address three of the four tests under that section.

2. That the Board erred in law in rejecting previous decisions of the OMB that a minor variance is a “special privilege” and that applicants must be able to demonstrate why they could not adhere to the by-law. By taking the position it did, the moving parties say the OMB erred in law by holding that the respondents herein were not required to demonstrate any need for the minor variance in order to satisfy one or more of the prescribed tests.

3. That the Board manifestly misapprehended the evidence and thereby erred in law by holding that the length of the “habitable” portion of the proposed new dwelling was within the requirements of the by-law. Further, that the OMB erred in law by holding that the height limit set out in the by-law was merely a “technical” requirement such that a variance ought to be granted.

4. That the OMB erred in law by taking into account and relying upon an irrelevant consideration when it concluded that no impact would result from an illegal and unenforceable condition as related to the rear balcony.

Issue 1

6I have carefully reviewed the decision of Vice-Chair J.L. O’Brien and while there is no question he referred to the four distinct tests prescribed by ss. 45(1) of the Planning Act, I have come to the conclusion that he may indeed have reduced three of the four statutory tests to the single test of “impact” of the variances. It appears there can be no question that the issue of the “impact” of a variance on abutting properties is relevant to the first test, namely, whether the variance is minor in nature. Before granting a minor variance, however, all of the elements of ss. 45(1) of the Planning Act must be satisfied (see Technakord Chemical Industries Inc. v. Toronto (City) Committee of Adjustment, [1993] O.M.B.D. No. 1434, p. 2. The issue of “impact” is confined to the first test established under ss. 45(1). Even if the OMB is satisfied there will be no adverse impact as a result of granting the variance, the remaining three tests under ss. 45(1) must also be carefully considered and satisfied (see Shala v. Toronto (City) Committee of Adjustments(1999) 4 MPLR (3rd) 284 (O.M.B.). In my view, the OMB in the present case may not have fully examined and analyzed the second, third and fourth tests prescribed by ss. 45(1) of the Planning Act. As was stated by Binnie J. in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 at para. 28,

It is neither necessary nor appropriate to limit circumstances in which an appellate court may consider itself unable to exercise appellate review in a meaningful way. The mandate of the appellate court is to determine the correctness of the trial decision, and a functional test requires the trial judge’s reasons to be sufficient for that purpose. The appeal court itself is in the best position to make that determination. ….The simple underlying rule is that if, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then an error of law has been committed.

7In the decision at issue, there was not sufficient analysis of the second, third and fourth tests under ss. 45(1) of the Planning Act by the member. Accordingly, by apparently subsuming the three of the four statutory tests to the single test of “impact”, the OMB may have erred in law and in order to provide clarity it is important that this matter receive the attention of the Divisional Court.

Issue 2

8In this reasons, Vice-Chair J.L. O’Brien stated on p. 3 as follows:

Before embarking on an analysis of the evidence, the Board is compelled to respond to the submissions of counsel for the objectors. It was argued the Board should refuse the application premised on a lack of demonstrated “need” for the variances and further, no ‘hardship’ has been proven by the applicants that would warrant variances being granted.

In support of the argument, the Board was encouraged to follow rationale set out in Assaraf v. City of Toronto Committee of Adjustment (1994), 31 O.M.B.R. 257. This panel of the Board will not do so. A minor variance is not a “special privilege” that requires the applicant to justify the relief sought on the basis of need or hardship.

9The Vice-Chair then went on to say that all the Planning Act requires is that the four “tests” be met and that ss. 45(1) of the Planning Act did not create a fifth test of need or a sixth test of hardship.

10There appears to be ample authority in support of the proposition that a minor variance is a “special privilege”. Not only does the OMB in Assaraf (supra) so state, a number of other decisions of the Board appear to confirm that the need for a variance is relevant in determining whether and to what extent a variance is desirable for the appropriate development or use of the land. Moreover, the Ministry of Municipal Affairs, in its various guidelines, has stated that the need for a variance is a relevant consideration. A review of OMB decisions would appear to demonstrate that in order to comply with the four tests established under ss. 45(1) of the Planning Act, an applicant has to be able to demonstrate something more than personal preference as a justification for a variance. There is a public interest here that clearly surrounds the implementation of the by-law.

11In the present case, there does not appear to have been any evidence of need provided or any evidence as to why the particular by-law was inappropriate for the proposed use of the respondents herein. It does not appear that any justification was given for the intrusive nature of the proposed rear balcony or indeed for the substantial building mass and it may be that the OMB erred in law in failing to require such evidence. In my view, clarification by the Divisional Court is required.

Issue 3

12In his decision, Vice-Chair J.L. O’Brien made reference to the “habitable” areas of the proposed dwelling. The by-law in question establishes clear criteria for the measurement of building length and building height. In his reasons, Vice-Chair O’Brien, when considering the proposed dwelling length, which was well in excess than that permitted under the by-law, stated: “The actual habitable floor area length will adhere to the by-law. The extra length encompasses the above-grade decks and pool areas.” It may be that the Vice-Chair was factually wrong in making this statement. If he failed to measure the length of the proposed dwelling at a right angle from the minimum front yard setback and failed to include the balconies projecting beyond 1.6 metres, a manifest error in law may have occurred in interpreting the by-law. In any event, this matter as well merits the attention of the Divisional Court. Moreover, when dealing with the height of the proposed dwelling, a flat roof structure, the Board member may have erred in law in interpreting the height limit set out in the by-law as merely a “technical” requirement. As defined by ss. 2.70.3 of the by-law, a flat roof means,

…a roof having a slope of less than one unit of rise for every ten units of run. Where more than 25% of the roof area of a building is flat, as defined in the preceding sentence, the entire roof shall be deemed to be a “flat roof” for the purposes of “building height”.

13In the present case, nearly all of the roof area of the proposed dwelling is flat, which would appear to create a building mass exceeding that which would be produced by a peaked roof, which might be higher under the by-law. In any event, I am of the view that this matter also merits the attention of the Divisional Court.

Issue 4

14When considering the rear balcony proposed to be 81.47 square metres, in light of the by-law which permits a maximum area of 3.8 square metres and whether it would meet the four tests prescribed by ss. 45(1) of the Planning Act, the Vice-Chair said this at p. 6 of his reasons:

The proposed balconies exceed the limit. But the Board must consider the impact. …No one is adversely impacted by the front balcony. …The Board accepts the applicants’ planning evidence the four tests are met for the front balcony.

The rear balcony is large but it is intended only for the personal use of the occupants of the dwelling. The spectre of party revellers using the balcony to disrupt the neighbouring property uses was tempered by the offer of the applicants, through their counsel, to physically screen and eliminate access to the majority of the balcony and to turn most of it into a decorative feature of the home. About 32 square metres would be allocated to use by the applicant. Counsel for the objectors questioned the enforceability of such a restriction or condition. However, the Board is satisfied that if the rear balcony is restricted physically as proposed by the applicants, enforceability should not be a problem. Any issue of overview to the neighbouring property will also be eliminated. No adverse impact will result. The four tests in ss. 45(1) will be met if the useable area or the rear balcony is confined.

15The by-law in question limits the area of the balcony to 3.8 metres and draws no distinction between balcony areas which are “useable” or merely decorative. Nevertheless, the approval of the variance for the rear balcony was made conditional upon a restriction that the “useable area” would not exceed 32 square metres. While the OMB may impose conditions in order to bring a variance within the four tests under ss. 45(1), the condition imposed here may well be unreasonable and indeed beyond the jurisdiction of the Board. Enforceability problems come to mind. Indeed, what remedy could the moving parties seek if such a condition was not adhered to by the respondents? Could such a condition bind subsequent owners of the subject property? Again, this is an issue which in my view merits the attention of the Divisional Court.

16For the following reasons, leave to appeal this decision of the OMB is granted. With respect to the costs of this motion for leave, I refer that to the panel of the Divisional Court hearing this matter further.

Cunningham A.C.J.

Released:

DIVISIONAL COURT FILE NO.: 775/03 777/03