COURT FILE NO.: DC-08-00000543-00ML
DATE: 20090512
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
THE CORPORATION OF THE TOWN OF MARKHAM
Appellant
(Moving Party)
- and -
IRINA GORDON
Respondent
(Responding Party)
Steven J. O’Melia, for The Corporation of the Town of Markham
Harold Elston, for Irina Gordon
HEARD AT TORONTO: April 28, 2009
REASONS FOR DECISION RENDERED: May 12, 2009
REASONS FOR DECISION
Echlin J.:
[1] The Town of Markham seeks leave to appeal the decision of the Ontario Municipal Board of October 10, 2008, to the Divisional Court.
[2] Two conditions must be satisfied in order for leave to be granted on question of law:
a) the point of law must be of sufficient importance to merit the attention of the Divisional Court; and
b) there is reason to doubt the correctness of the Board’s position on the question of law.
(see: Mod-Aire Homes Limited v. Town of Bradford (1990), 72 O.R. (2d) 683 (Div. Ct.))
[3] Ms. Gordon purchased the 1948 home at 179 John Street in Markham and in August, 2007, submitted a demolition permit application, a minor variance application, and a site plan control application and was largely unsuccessful. After a four-day hearing before the O.M.B. which considered 36 exhibits, considerable evidence and argument, and included a view of the District, the grounds, and the dwelling, the Board allowed her appeals permitting Ms. Gordon to demolish the existing building and garage and construct a new gothic revival brick two-storey dwelling with an attached two-car garage.
[4] The Board made a number of factual findings including:
a) 179 John Street is not listed as a “significant building” in the 1986 Thornhill-Markham Heritage Conservation District Plan, and was a Class C designation in the 2007 Thornhill-Markham Heritage Conservation District Plan;
b) 179 John Street is a common post-war construction with limited architectural value having no cultural, social, political, economic or military history;
c) 179 John Street does not meet the preservation policies of the York Official Plan, the Town of Markham Official Plan, or the Thornhill Secondary Plan;
d) that the proposed gothic revival designed building will maintain the “village-like ambiance” and will complement the Thornhill Heritage.
[5] The issues raised most capably and vigorously by Mr. O’Melia do not involve pure questions of law. Rather, in my view they are directed towards questions of fact or mixed fact and law.
[6] Even if it were a question of law, I am not satisfied that it is of sufficient importance to merit the attention of the Divisional Court. It is a local matter involving policies specific to a small community involving a dwelling not identified to be significant. O.M.B. decisions do not establish precedents and will have no applicability to other Ontario municipalities.
[7] Further, I cannot conclude that there is reason to doubt the correctness of the O.M.B. decision, even if it were determined that a question of law was involved. In matters of planning and the planning process, deference should be shown to O.M.B. decisions.
[8] While I have no doubt that the issues are important to the parties, the issue raised is essentially a factual one, lacks general legal importance and will have very little jurisprudential value. In addition, the applicant has failed to satisfy me that there is reason to doubt the correctness of the decision for which leave is sought.
[9] The parties provided costs submissions. I fix and award costs in the amount of $10,000.00 (all-inclusive) to the respondent, Irina Gordon, payable by no later than 12:00 noon, on June 12, 2009. Such amount is fair and reasonable in the circumstances, within the contemplation of the parties, and in keeping with the principles outlined in Boucher v. Public Accountants Council for the Province of Ontario (2004), 72 O.R. (3d) 291 (C.A.).
Echlin J.
Released: May 12, 2009
COURT FILE NO.: DC-08-00000543-00ML
DATE: 20090512
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
THE CORPORATION OF THE TOWN OF MARKHAM
- and -
IRINA GORDON
REASONS FOR DECISION
Echlin J.
Released: May 12, 2009