Court File and Parties

Court File No.: 73/08 and 76/08

Date: 2008-10-03

Superior Court of Justice - Ontario (Divisional Court)

Re: City of Toronto, (Applicant) v. Dunpar Developments Inc. and Kingsway Residents Against Poor Planning, (Respondents)

• AND -

Re: Kingsway Residents Against Poor Planning, (Applicant) v. Dunpar Developments Inc. and City of Toronto, (Respondents)

Before: Justice D. Aston

Counsel: Thomas H. Wall and Stephen Bradley, for the Applicant, City of Toronto Charles Campbell and Dawne Jubb, for the Appellant Kingsway Residents Against Poor Planning A. Dryer and A. Brown, for the Respondent Dunpar Developments

Heard at Toronto: September 29, 2008

Endorsement

Aston J.

[1] The City of Toronto (“the City”) and Kingsway Residents Against Poor Planning (“Kingsway”) both bring identical motions seeking leave to appeal to the Divisional Court from an OMB decision dated February 6, 2008 (“the Campbell decision”).

[2] Leave to Appeal is sought with respect to four specific questions:

(i) Did the Board err in failing to apply or properly interpret s. 2.1 and 24 of the Planning Act?

(ii) Did the Board err in approving a zoning by-law amendment without finding that the amendment conformed to the Citys “in force” Official Plan policies?

(iii) Did the Board err in law and misconstrue the “Clergy Principal” in deciding that the repealed Etobicoke Official Plan was the determinative Official Plan, rather than the City’s “in force” Official Plan?

(iv) Did the Board err and exceed its jurisdiction by failing to apply the six-storey height restriction for the “Commercial Residential Strip” contained in s. 4.4 of the repealed Etobicoke Official Plan to the seven/eight storey height limit permitted by the zoning by-law amendment approved by the Board?

[3] Pursuant to s. 96 of the Municipal Act, leave is only granted:

(a) on a question of law,

(b) if the question of law is sufficiently important to warrant the attention of the Divisional Court, and

(c) there is reason to doubt the correctness of the decision or the Board’s interpretation of the law.

[4] The Board decided as a threshold issue, on a motion brought by Kingsway and supported by the City, that the repealed Etobicoke Official Plan (“EOP”) could not be amended – that Dunpar’s pending Appeal to the Board seeking such relief was a “nullity” (the “Jackson decision”). However, the Jackson decision also clearly contemplated “the weight to be given to evidence on the former Etobicoke Official Plan and the current Toronto Official Plan is a matter for the hearing”.

[5] The Application of the “Clergy Principle” was within the Board’s discretion as a matter of its own practice and procedure. In both the Jackson decision and the Campbell decision, the Board acknowledged flexibility in the application of that principle. Evidence was ultimately heard, considered and weighed in the context of both Official Plans. As required by s.2.1 of the Planning Act, the Board “had regard to” the City’s decisions in relation to the planning matters in question and to the information and material City Council considered in making its decisions. All that evidence was led, or could have been led, by Kingsway and the City.

[6] It is not an error of law for the Board to conclude that the Toronto Official Plan (“TOP”) was not the Official Plan “in effect” for the purposes of the Appeal before it. To hold otherwise would be to effectively abolish the Clergy Principle. The Clergy Principle is well established, notwithstanding the language of s.24 of the Planning Act.

[7] A fair reading of the Campbell decision in its entirety supports the conclusion the Board would have granted a site specific amendment of s.4.4.4 of the EOP to accommodate Dunpar’s proposal for its seven/eight storey development but for the Jackson decision which took such an amendment out of consideration. Member Campbell properly concluded she was bound by the unchallenged Jackson decision in that regard. However, the Board did not exclude evidence relating to planning policy, planning considerations or the new TOP. To the contrary, the Campbell decision considered and weighed all the evidence tendered, giving reasons for preferring some expert evidence over other evidence. Member Campbell went on to specifically consider whether the proposed building was consistent with principles of good planning, and was appropriate having regard to the Planning Act, the PPS, both Official Plans, the Dundas Street West Avenue Study, the applicable zoning by-laws (including the Dundas Street West Avenue’s by-law) and the relevant Urban Design Guidelines, including the Dundas Street West Urban Design Guidelines.

[8] The Board did not ignore the evidence tendered by the City or Kingsway; it merely discounted its importance in determining “the evidence in this area is of limited relevance”.

[9] In determining that the evidence relating to the TOP was admissible and relevant but not determinative, the Board applied the Clergy Principle in a manner consistent with the discretion of the Board and its decisions in Dumart v. Woolwich (Township) [1997] OMBD No. 1817 and James Dick Construction Limited v. Caledon (Town) [2003] OMBD No. 1195.

[10] I conclude the Board committed no error on any question of law. The motions for leave to appeal are therefore dismissed.

[11] By agreement, costs in favour of the respondent Dunpar Developments Inc. are fixed at $10,000.00 inclusive of GST and disbursements. If the moving parties are unable to agree on the apportionment of those costs, brief written submissions may be made within the next 30 days.

Aston J.

Date: October 3, 2008