COURT FILE NO.: 1540

DATE: 2006-04-10

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

IN THE MATTER OF an Appeal by Wonderland Power Centre Inc. to the Ontario Municipal Board pursuant to subsections 45(12) of the Planning Act, R.S.O. 1990, c.P. 13, as amended, from a decision of the City of London Committee of Adjustment which granted the variance requested by 922012 Ontario Limited, Submission No. A44/05, with respect to property at 375 Southdale Road, West, in the City of London, OMB File No. V050254.

AND IN THE MATTER OF a Motion by 9022012 Ontario Limited to the Ontario Municipal Board pursuant to subsection 45(17) of the Planning Act, R.S.O. 1990, as amended, to dismiss the appeal by Wonderland Power Centre Inc. without holding a full hearing.

B E T W E E N:

WONDERLAND POWER CENTRE INC.

Alan R. Patton, for the Moving Party

Appellant (Moving Party)

and -

922012 ONTARIO LIMITED

Barry Card, for the Responding Party

Respondent (Responding Party)

Heard: October 14, 2005 in London

LEITCH J.:

E N D O R S E M E N T

[1] The Appellant, the moving party, seeks leave to appeal to the Divisional Court from Decision/Order No. 1998 of the Ontario Municipal Board delivered August 2, 2005.

[2] Pursuant to s. 96(1) of the Ontario Municipal Board Act, R.S.O. 1990 c. 028 a decision of the Ontario Municipal Board may be appealed to the Divisional Court with leave of the Divisional Court on a question of law.

[3] The test on this motion for leave is whether there is some reason to doubt the correctness of the decision in issue and whether the proposed appeal raises a point of law sufficient to warrant the attention of the Divisional Court (Rosedale Golf Association Ltd. v. Degasperis, 204 O.J. No. 1153).

Background Facts

[4] The City of London Committee of Adjustment granted the Respondent, as the owner of the subject property, a minor variance. The variance granted permission to construct a financial institution with a larger gross floor area than permitted under the By-Law and fewer parking spaces than the By-Law required. The Committee of Adjustment was of the opinion that "the variance requested is minor and is desirable for the appropriate development of the land and is in keeping with the general intent and purpose of the By-Law and official plan."

[5] The Appellant, the owner of abutting property, appealed the variance granted to the Ontario Municipal Board pursuant to the s. 45 of the Planning Act, R.S.O. 1990 c.P 13, as amended. In its Notice of Appeal, the Appellant stated that "the variances are not minor in nature and are not in keeping with the intent and purpose of the applicable zoning By-Law and not desirable for the appropriate development or use of the subject lands."

[6] Pursuant to the s. 45(18) of the Planning Act, R.S.O. 1990 c.P 13, as amended, the Ontario Municipal Board could dismiss the appeal and could make any decision that the Committee of Adjustment could have made on the original application. Therefore, the hearing before the Municipal Board is considered a hearing de novo.

[7] Prior to the hearing before the Ontario Municipal Board, the Respondent sought an order from the Board dismissing the appeal without holding a full hearing pursuant to s. 45 (17) of the Planning Act which provides as follows:

(17) Despite the Statutory Powers Procedure Act and subsection (16), the Municipal Board may dismiss all or part of an appeal without holding a hearing, on its own motion or on the motion of any party if,

(a) it is of the opinion that,

(i) the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Board could allow all or part of the appeal,

(ii) the appeal is not made in good faith or is frivolous or vexatious, or

(iii) the appeal is made only for the purpose of delay.

[8] In his affidavit filed in support of the motion, the president of the Respondent deposed that the Appellant has "persistently resisted completion of access arrangements required of it under Site Plan approvals granted by the City of London" and his belief that that was "for the purpose of hampering the development" of the Respondent's property. He also asserted that the appeal was a further "attempt to thwart" the Respondent's arrangements with its proposed tenant.

[9] In his responding affidavit, the president of the Appellant set out details of the development agreements between the Appellant and the City. The most recent agreement was made on May 11, 2005. It reiterated that the Appellant is to enter into an agreement with the Respondent to provide for the joint use and maintenance of a common internal driveway and they were to confirm with each other "the location in the field before the internal connection is constructed." The agreement went on to say that in the event the Appellant opposed this requirement or any part thereof, it could appeal to the Planning Committee and Municipal Council and the Appellant agreed to comply with the decision of Municipal Council. In his affidavit the president of the Appellant deposed that the Appellant had "not persistently resisted completion of joint access agreements" with the Respondent and the Appellant had been and remained willing "to negotiate the joint access arrangements or failing agreement with [the Respondent] abide by the decision of London City Council."

[10] Pursuant to a written decision of R. Rossi, a member of the Ontario Municipal Board, the appeal was dismissed without holding a full hearing based on his findings that while the arguments put forward in the affidavits of the president of the Appellant and the planning consultant retained by the Appellant were not frivolous or vexatious, there was "no valid planning ground to allow the appeal to proceed to a full hearing". The Board determined "that their alleged parking issues as articulated do not disclose any apparent land use planning ground." The Board ultimately concluded that the issues stated for the appeal were "not genuine, legitimate or authentic planning reasons and unworthy of the adjudicative process."

[11] The Appellant seeks leave to appeal the order of the Ontario Municipal Board dismissing its appeal without a hearing.

The Appellant's Position

[12] The Appellant emphasizes that the Board did not find its appeal frivolous or vexatious and the Board dismissed the appeal on the basis that there were no apparent land use planning grounds on which the appeal could be allowed.

[13] The Appellant notes that a four-part test must be met in order for an application for a minor variance to be successful. The variance must be minor; and desirable for the appropriate development or use of the land, building or structure; and must maintain the general intent and purpose of the zoning by-Law; and must maintain the general intent and purpose of the official plan. (Section 45 (1) of the Planning Act).

[14] The Appellant submits that the Board erred in law by not considering whether the four-part test was met; relying on the irrelevant fact that the Appellant did not raise parking concerns at the Committee of Adjustment hearing; placing significant weight on whether the Appellant and Respondent had reached agreement on internal access; finding that the Appellant showed a "lack of co-operation"; misapprehending evidence regarding the arrangements relating to the internal access and concluding without proper evidence that the Appellant showed a "lack of co-operation" regarding internal access between the properties; and disregarding relevant evidence, in particular the evidence of the Appellant's planning consultant regarding the impact of the reduction of parking on the basis that it was "highly speculative and without foundation" because the evidence was not based on a traffic study, and further disregarding relevant evidence that raised the genuine possibility of adverse impacts to the Appellant's property if the variances were authorized as set out in the affidavits of the Appellant's planning consultant and the president of the Appellant, neither of whom were cross-examined on their affidavits.

[15] As required by r. 61.03(4), the Appellant's notice of motion and factum sets out the specific questions that it proposes the Divisional Court should answer if leave to appeal is granted as follows.

Did the Ontario Municipal Board err in law by dismissing the appeals without a full hearing by determining that the appeals did not disclose any apparent land use planning reasons upon which the Board could allow the appeal?
Did the Ontario Municipal Board err in law by applying a standard to the authenticity of the appeals that could only be determined upon a full hearing of the appeal?
Did the Ontario Municipal Board err in law by finding that the Moving Party's expert planning evidence of the potential adverse impact of parking on the Moving Party's property, which was not the subject of cross-examination, was "highly speculative and without foundation" because this evidence was not based on a traffic impact study initiated by the Moving Party?
Did the Ontario Municipal Board err in law in finding that the parking issues raised by the Moving Party did not disclose any apparent land use planning ground because the Moving Party's representative did not raise parking concerns at the Committee of Adjustment meeting?
Did the Ontario Municipal Board err in law in placing "significant weight" on evidence relating to whether the Moving Party and the Responding Party had reached an agreement regarding an internal access between the Moving Party's property and the Responding Party's property, where this evidence was extraneous and irrelevant to the issues?

[16] The Appellant submits that the forgoing issues raise points of law sufficient to warrant the attention of the Divisional Court. It is the Appellant's submission that the questions of law need not be of general importance and they may be limited to matters relevant to the parties provided they raise a question of sufficient importance to merit the court's attention. The Appellant asserts that the following issues merit the attention of the Divisional Court:

Whether the Board has jurisdiction to dismiss an appeal of a variance without a de novo hearing because an Appellant did not provide studies to prove the requested variances do not meet the statutory tests of the Planning Act.
Whether the Board erred in law by reversing the obligation on the Respondent as the party seeking a minor variance by virtue of the fact that the Board failed to examine and analyze whether the Respondent could meet the four tests for a variance.
Whether the Board misapprehended the evidence when it accepted the development agreements as evidence of an ulterior motive on the part of the Appellant.
Whether in reaching its conclusion that there were no land use planning grounds on which the appeal could be granted, the Board erred in law by placing "significant weight" on evidence relating to whether the Appellant and Respondent had reached agreement regarding internal access between the properties and on its finding that the Appellant's action revealed a "lack of co-operation."
Whether the Board erred in law by disregarding the evidence of the Appellant's planning consultant regarding the impact of the reduced parking as "highly speculative and without foundation" because this evidence was not based on a traffic impact study.
Whether the Board erred in law by disregarding the affidavit evidence of the president of the Appellant regarding the adverse impacts on the adjoining property if the variances are granted.

The Respondent's Position

[17] The Respondent's position is that this is not an authentic appeal – this is not a land use planning dispute.

[18] The Respondent submits that the Board's decision was correct, that the Board made no error in law, that the questions posed by the Appellant for consideration by the Divisional Court are aimed at the interpretation of the evidence and do not identify an error in law and further, this appeal does not raise matters of sufficient importance for consideration by the Divisional Court because important issues are not raised, there is no interpretation of legislation required and the appeal can be considered simply a contest between two private parties resulting from the Appellant's dissatisfaction with the approval of the minor variance.

Decision

[19] I am satisfied there is no good reason to doubt the correctness of the decision by the Board to dismiss the appeal.

[20] The Board's reasons made clear that the "primary issue" before it was whether the appeal discloses any apparent land use panning ground upon which the Board could allow any or part of the appeal.

[21] The Board also considered whether the appeal was frivolous or vexatious – an alternative ground to dismiss an appeal without a hearing. The Board found that there was insufficient evidence to characterize the appeal as frivolous or vexatious.

[22] In my view the Board properly considered the evidence relating to the joint access as relevant to the questions before it. While one could come to a conclusion different than the Board's in respect of the level of the Appellant's cooperation and enthusiasm for resolving the joint access arrangements, I cannot find that the Board made an error of law in its consideration of the evidence.

[23] The decision to dismiss the appeal was based on the Board's finding that the notice of appeal and the Appellant's affidavit material did not disclose any apparent land use planning ground on which the appeal could be allowed in whole or in part. The Board correctly noted that the onus was on the Appellant to demonstrate there is an authentic land use planning ground, those issues could effect a decision in a hearing and those issues are worthy of the adjudicative process.

[24] I am satisfied that in undertaking that analysis the Board did not err in law. The Board was not obliged to fully examine and analyze whether the respondent could meet the four-part test for a minor variance. The Board did not reverse the onus and require the Appellant to establish why the variances do not meet the four tests.

[25] It was open to the Board to find the evidence from the respondent's planning consultant more persuasive than the evidence from the Appellant's planning consultant. One of the factors considered by the Board in reaching that conclusion was that there was no basis for the consultant's opinion "whether a traffic impact study or other research". Such findings do not amount to an error in law. It cannot be said that the Board disregarded relevant evidence. The Board considered that evidence but afforded it little weight.

[26] Similarly, I am satisfied the Board considered the evidence set out in the affidavit of the president of the Appellant and the Board did not commit any error in law in how it interpreted and weighed that evidence to ultimately make its findings and reach its conclusions.

[27] Therefore I conclude that there is no good reason to doubt the correctness of the Board's decision or to use the words of Lane J. in Basso v. King (Township), 2005 50 O.M.B.R. 129 - the correctness of the decision is not open to serious debate. Having come to that conclusion it is unnecessary to determine whether the proposed appeal raises a point of law of sufficient importance to warrant the attention of the divisional court.

[28] However, referring again to Basso, I find that the circumstances of this case are different from those considered by the Court in Basso. In that case a court had not "yet considered the correct approach to the interpretation of complex legislation" and the leave court found the Board's decision was "a highly restrictive interpretation of an important new piece of legislation affecting a huge swath of land with many landowners affected" and "the Board's restrictive approach may be expected to be duplicated in interpreting other sections if left unchallenged." I am more inclined to describe this appeal as a contest between two parties rather than one that raises important issues of law.

[29] For the forgoing reasons the motion for leave to appeal is dismissed. If necessary the parties may file brief written submissions on the issue of costs in the next 30 days.

"Madam Justice Lynne C. Leitch"

LEITCH J.

Released: April 10, 2006

Court File No.: 1540

Date: 2006-04-10

ONTARIO

SUPERIOR COURT OF JUSTICE