Court File and Parties

Court File No.: 347/07 Released: 20080707

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Re: DR. PEGGY VIVIAN WATT and ADAM CROTHALL, Appellants - and - CLASSIC LEISURE WEAR INC., PETROMAC HOLDINGS INC., PEGGY SHALAPOUTIS, and THOMAS JEFFREY LEWIS, Respondents

Before: Jennings, Molloy and Swinton JJ.

Counsel: Sonia T. Kociper and Ali M. Amini for the Appellants Signe B. Leisk and Nicole Auty for the Respondents

Heard at Toronto: June 27, 2008

Endorsement

SWINTON J.:

[1] The appellants appeal from a decision of the Ontario Municipal Board (the “Board”) dated July 3, 2007, in which the Chair of the Board denied the appellants’ request to review an earlier decision of the Board dated April 10, 2007 (the “Original Decision”). In the Original Decision, the Board had granted the respondents’ appeal from a decision of the Toronto Committee of Adjustment pursuant to ss. 45(12) and 53(19) of the Planning Act, R.S.O. 1990, c. P.13. The result of the Original Decision was to allow a development of three detached houses in the rear yard of a residential property in the vicinity of Lee Avenue and Kingston Road.

[2] The respondent Thomas Jeffrey Lewis is the owner of 342 Lee Avenue and 332R Lee Avenue. 332R Lee Avenue is a vacant parcel of land located behind 342 Lee Avenue and extending behind 334, 336, 338 and 340 Lee Avenue, upon which Mr. Lewis proposes to build three detached homes. The new houses would have access to Lee Avenue via a driveway that is to be part of the common elements of a condominium. The proposed driveway would run along the north side of 342 Lee Avenue, across the back of that property and then into and around 332R Lee Avenue.

[3] There is an existing right of way (“ROW”) on part of the land that would form the condominium common elements driveway. The ROW runs east and west behind Kingston Road and north and south behind the Lee Avenue properties. The ROW is for the benefit of the landowners of 330 to 342 Lee Avenue and 525 to 541 Kingston Road, giving them an unrestricted right of way “over, along and upon” a way that provides access to and egress from the rear of their properties. The ROW was conferred by express grant in land deeds in the early 1900’s. At the present time, part of the ROW near Lee Avenue is paved, but the ROW behind the Lee Avenue properties is not paved and is used for foot traffic.

[4] Mr. Lewis has purchased the real property over which the ROW runs behind two of the properties on Kingston Road. The remaining access for the new houses would be across land formerly attached to 342 Lee Avenue, but to be severed from it, and from the site under development.

[5] The planning applications before the Original Board concern Parts 1 to 9 of a Draft Reference Plan, which the respondents own in fee simple. According to the planning applications, Parts 5, 8 and 9 of the condominium common elements will continue to be subject to the right of way in favour of the neighbouring landowners entitled thereto and will remain open and unobstructed. Part of the land subject to the existing ROW will be paved and lit as a result of the development.

[6] The Committee of Adjustment turned down the application for approval of minor variances to the zoning by-law and consents to sever land, expressing concern that the adequacy of access to the proposed site had not been demonstrated.

[7] The Original Board considered the appropriateness of site access in accordance with s. 51(24) of the Planning Act and held that the proposed driveway provided adequate access to the proposed development. At p. 6 of its Reasons, the Board stated,

With respect to this issue, the Board finds that potential new owners of the subject site by virtue of the location of their properties would have to use the laneway to gain access to those properties and would, therefore, also have a de facto share in the tenement.

[8] It went on to find that there were no irresolvable technical issues pertaining to the site, including with respect to access and traffic circulation (p. 9). On the issue of access, the Board held that driveway access could be safely provided onto Lee Avenue through the existing ROW, which would remain in place (p. 16).

[9] The appellants requested a reconsideration of this decision on a number of grounds, including the argument that the Original Board acted outside its jurisdiction when approving access via the ROW. In their submission, the Board had no jurisdiction to decide the ROW/easement issue as it did. The access by the owners of the new houses was not contemplated under the original grant and would create an overburden and enlargement of the ROW that would interfere with the property rights of the neighbouring landowners.

[10] The Board, pursuant to s. 43 of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28 (“OMB Act”), has the power to review any Board decision. Pursuant to Rule 115 of its rules, the Board will review a decision only if there is an arguable case that the Board has acted outside its jurisdiction, violated the rules of natural justice, made an error of law or fact such that the Board would likely have reached a different result, or heard false or misleading evidence from a party or witness that was discovered after the hearing and that could have affected the result.

[11] The Review Board held that the Original Board acted within its jurisdiction. It specifically stated,

The Board, in my opinion, heard evidence regarding its ability to decide the easement issue and made a proper decision based on the evidence presented. The Board did not act outside its jurisdiction when deciding on the easement issue. (Reasons, p. 3)

[12] Leave to appeal to this Court was granted pursuant to s. 96(1) of the OMB Act on one issue: whether or not the Review Board erred in law by holding that the Original Board “did not act outside its jurisdiction when deciding on the easement issue.”

[13] The appropriate standard of review on a narrow question of jurisdiction like the one before us is correctness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 at para. 59).

[14] The task of the Original Board, in the appeal before it, was to determine if approval should be given for minor variances to the zoning by-law and whether consents to sever should be granted. In determining the severance issue, the Board was required to have regard to the criteria for plan of subdivision approvals in s. 51(24) of the Planning Act, including the adequacy of road access and restrictions on the land proposed to be subdivided (see s. 51(24)(e) and (g)).

[15] O. Reg. 197/96 of the Planning Act requires that consent applications, such as the one submitted by the respondents in this case, include information and material for the municipality’s (and ultimately for the Board’s) review respecting whether there are easements or restrictive covenants affecting the subject lands.

[16] Section 35 of the OMB Act provides:

The Board, as to all matters within its jurisdiction under this Act, has authority to hear and determine all questions of law or of fact.

Thus, the Board has jurisdiction to determine legal issues which are incidental to its administrative functions (Toronto (City) v. Goldlist Properties Inc., 2003 50084 (ON CA), [2003] O.J. No. 3931 (C.A.) at paras. 35-41).

[17] The Review Board was correct in holding that the Original Board’s decision was within its jurisdiction. The Original Board made a decision to grant the variances and the consents based on the criteria in the Planning Act and the evidence before it. As part of its decision-making process, it had to determine whether the use of the proposed driveway on the condominium common elements provided access to the site that was acceptable from a planning perspective. In making such a determination, it had the jurisdiction to determine questions related to the ownership of the lands affected and the easement issue, as this was necessary for the Board to carry out its responsibility to decide whether the respondents’ applications met the applicable tests under the Planning Act.

[18] It is undisputed that the respondents are the owners in fee simple of the entirety of the subject lands, including the proposed driveway. Neither the Review Board nor the Original Board made any legal determination as to the use of or the ownership of the parts of the ROW that were not the subject of the planning application. Nor have they ruled on the scope of the rights of the neighbouring landowners, who will continue to enjoy a ROW on the parts of the condominium common elements driveway that are subject to their easement.

[19] Thus, the Review Board was correct in holding that the Original Board acted within its jurisdiction, as the consideration of the easement issue was incidental to its function of approving variances and granting consents to sever.

[20] The fact that a judge of the Superior Court of Justice has jurisdiction to determine rights dependent on the interpretation of a deed pursuant to Rule 14.05(3)(d) of the Rules of Civil Procedure does not curtail the jurisdiction of the Board to make legal determinations with respect to matters such as ownership and easements when exercising its planning jurisdiction (see, for example, Inderwick v. Bathurst, Burgess and Sherbrooke (Township), [2001] O.M.B.D. No. 413 at para. 2).

[21] Moreover, the case law on easements relied upon by the appellants is not relevant to the issue of the Board’s jurisdiction. In Re Gordon and Regan (1985), 1985 2230 (ON SC), 49 O.R. (2d) 521 (H.C.J.), the owner of a dominant tenement held a ROW over lands adjoining his property. Subsequently, he acquired further lands contiguous to his property that he planned to develop. The Court held that the adjoining lands had no right to use the existing ROW, as they were not covered by the original grant.

[22] That is not the situation here. The respondents seek to provide access to the new houses over lands owned by them in fee simple that are subject to the neighbouring properties’ ROW.

[23] Even the affidavit from Robert Aaron, which the appellants submitted in support of the request for review of the Original Decision, does not support their position that the Original Board improperly extended the ROW to the new houses. His affidavit indicates that “as long as the servient tenement [342 Lee Avenue and the new development] does not interfere with the use and enjoyment of the right of way by the owners of the dominant tenement [the neighbours with a ROW], then the owner of the servient tenement can make such alterations to the surface of the land as he or she wishes”. In this case, the servient tenement is the land forming the common elements of the condominium that is subject to the ROW. The dominant tenement is the lands along Lee Avenue and Kingston Road that hold a grant of the ROW, and which will continue to have access to the ROW on the servient tenement.

[24] Each of the neighbouring properties has the benefit of the right to use the ROW over the lands of others and the burden of having a ROW through their own property for the benefit of others. The proposed development does not increase the burden or change the nature of the ROW over any of the neighbouring properties. Those changes occur only on the property owned by Mr. Lewis. The neighbours therefore can have no complaint about the burden the new development places on the ROW over their own lands.

[25] The neighbours’ only other right with respect to the ROW is the right of access over the lands of others. Mr. Lewis is entitled to make any changes to his own property that do not interfere with the ROW. The neighbours have no entitlement to require that the ROW be maintained in its current condition, provided that any changes do not adversely affect their ability to use the ROW as a ROW. The proposed development may interfere with the neighbours’ enjoyment of their own properties, and perhaps even the value of those properties, but it does not interfere with their ability to travel “over, along and upon” the ROW, which is the only issue before this Court.

[26] There has been no effort by the appellants to seek leave to appeal from the Original Decision. Therefore, matters raised by the appellants such as the insufficient width of the proposed driveway or the likelihood that there will be a need to use part of the ROW that is not owned by the respondents are not properly before this Court. It is understandable why the neighbours are concerned about the merits of the proposed development, given issues such as increased traffic, difficulty of access, added lighting and loss of privacy in their backyards. However, those are issues to be raised before the Board. This Court has no jurisdiction over such issues, as an appeal lies to this Court only on a question of law and with leave.

[27] For these reasons, I would dismiss the appeal. If the parties cannot agree on costs, the respondents may make brief written submissions within 21 days of the release of this decision and the appellants may reply within 14 days thereafter. All submissions should be sent to the Registrar of the Divisional Court.

Swinton J.

Jennings J.

Molloy J.

Released: July 7, 2008