COURT FILES NO.: 02/09 and 187/09
DATE: 20091218
SUPERIOR COURT OF JUSTICE - ONTARIO (DIVISIONAL COURT)
RE: peter tseng, dr. vanessa tseng AND pauline tseng v. the city of toronto
BEFORE: Justice David Aston
COUNSEL: Pauline Tseng, agent for the Moving Parties R. Kallio and Kirsten Peacock, for the Respondent
HEARD AT TORONTO: December 14, 2009
E N D O R S E M E N T
[1] These two motions seek leave to appeal a decision of the Ontario Municipal Board rendered December 10, 2008 and a subsequent Amending Order in the same matter dated April 8, 2009. By agreement, the two motions were heard together.
[2] Peter and Vanessa Tseng own a semi-detached house at 38 Brunswick Street. They built a two-storey addition at the back of that house without a building permit and in violation of the zoning by-law with respect to building depth and side yard set-backs on the north side of their property. In order to get approval for the addition and permission for a proposed rear fire escape, the Tsengs applied to the Committee of Adjustment for three minor variances from the zoning by-law. The Committee refused to grant those variances. The Tsengs appealed that decision to the Ontario Municipal Board. The third appellant and moving party, Pauline Tseng, has no interest in the property but acted as an agent for the purpose of bringing the application before the Committee of Adjustment and before the Ontario Municipal Board and this Court.
[3] Pauline Tseng asserts that she is a party, rather than a mere agent, as a consequence of the wording of section 45(1) of the Planning Act. On hearing the motion, I ruled she does not have party status, but I afforded her permission to make submissions on behalf of the other two moving parties. She conceded that her submission would not be different in any manner, whether speaking on her own behalf or on behalf of the other moving parties. Those others were present and confirmed they were content to rely on the submissions of Pauline Tseng on their behalf.
[4] The Ontario Municipal Board had fixed a hearing date of December 1, 2008, peremptory on the parties. Prior to that, on August 5, 2008, the hearing had been scheduled but adjourned. An order was made as part of the adjournment process. Production of all evidence to be relied upon at the hearing by either side was to be exchanged by September 1, 2008, with the Rules of Civil Procedure, specifically rule 30.02 regarding disclosure and production of documents, to apply.
[5] At the outset of the hearing on December 1, 2008, the appellants raised several procedural issues. The Board dealt with each of those issues and gave an oral decision. The appellants then left the hearing before evidence was called, despite the fact that the hearing was peremptory and despite being told by the Board that it would be proceeding on the merits. The Board went on to hear the City’s planning evidence in the appellants’ absence. It determined on the uncontradicted evidence that the proposed variances did not meet the test set out in the Planning Act for allowing a minor variance.
[6] I am persuaded the Board misapprehended one aspect of its decision making process; namely the location of the building addition in relation to the southerly lot line. The two variances sought by the Tsengs in relation to side yard requirements both related to the northerly lot line. This error was purportedly “corrected” by the Amending Order of April 8, 2009. The amendment granted simply specified what had been sought in the application, that is to say in the document itself. However, the Board had also found that the building addition extended from side lot line to side lot line without any set backs on either side. That factual finding is palpably wrong. It is quite clear from the application itself, and from the evidence, that the addition complies with the zoning by-law on the southerly side. The City pointed out this error by the Board in its letter requesting amendment of the original decision, but the Board refused to make that amendment. The Board’s refusal to modify this aspect of the December decision was quite proper. To do so would have exceeded the parameters of section 108 of the Board’s Rules of Practice and Procedure. Although these amendments were sought ex parte, and although no reasons were given for the decision of April 8, 2009, it is obvious the Board gave the matter due consideration from the very fact that only one of the three amendments sought by the City was granted. The one that was granted was properly granted.
[7] The Board’s misapprehension of the evidence and one aspect of the relief sought by the applicants do not constitute a jurisdictional error or error of law for the reasons which follow.
[8] Minor variances from a zoning by-law fall under section 45 of the Planning Act and may be granted only if the applicants satisfy the four tests set out in the statute. The four tests are: whether the variances meet the general intent and purpose of the zoning by-law; whether they meet the general intent and purpose of the official plan; whether the variances represent appropriate development of the land; and whether they are “minor”. On November 27, 2007, the Committee of Adjustment decision refused to grant the variances sought, finding that the variances did not meet any of the four tests.
[9] In response to the Board’s order of August 5, 2008, the City produced an Affidavit of Documents. The appellants raised three complaints before the Board concerning this affidavit:
(a) that the Commission stamp was not dated;
(b) when a dated version of the affidavit was provided, it was dated after the September 1st deadline in vice-chair Granger’s order for production; and
(c) the standard wording of the affidavit varied slightly from the form found in the Rules of Civil Procedure and a Lawyer’s Certificate was ommitted.
The Board ruled that these deficiencies with the City’s affidavit were technical at best and could be addressed through its broad powers under rule 6 of the OMB Rules. Rule 6 provides “the Board may grant all necessary exceptions from these Rules or from a procedural order or grant other relief as it considers appropriate, to ensure that the real questions in issue are determined in a just, most expeditious and cost effective manner”.
[10] A second procedural objection raised by the appellants before the Board was that the City did not include three specific documents in its Affidavit of Documents. The appellants knew these documents were in the City’s possession because they themselves had copies. The documents were a Staff Planning Report for a completely different property and two earlier versions of a zoning examiner’s notice. These documents, of questionable relevance, were not documents the City intended to rely on at the hearing and the City therefore did not produce them or allude to them pursuant to the procedural order of August 5, 2008. The Board ruled that because the appellants had the documents and were entitled to try to introduce them into evidence or rely on them if they chose, they were not prejudiced by their omission from the City’s productions.
[11] The appellants submitted to the Board and to this Court that the absence of these three documents from the City’s Affidavit of Documents raised an inference that the City was hiding other relevant documents that could assist the appellants in their case. However, the Board was satisfied with the City’s explanation. Absent any other evidence that the City was withholding or secreting other relevant documents, the Board was not required to give effect to the speculative claim of the appellants.
[12] The appellants also raised as a preliminary procedural objection the absence of the City’s zoning examiner, Mr. Bitaxi. They had served him with a Summons to Witness. The Board declined to compel Mr. Bitaxi’s attendance. It effectively quashed its own summons on the basis that Mr. Bitaxi’s evidence would not be relevant to any issue the Board had to decide. Before doing so, the Board member asked why Mr. Bitaxi’s evidence would be needed. The answer was that his evidence would go to “whether the variances were necessary”. That issue was not before the Board. The Tsengs acknowledged that the variances were necessary by applying to the Committee of Adjustment.
[13] Rule 45(c) of the Board’s own rules provides that the Board must first determine the relevancy of proposed evidence when issuing a summons. That test was met with respect to the evidence of Mr. Bitaxi. The decision at the hearing on December 1, 2009 essentially reversed that determination. The appellants assert that the Board did so arbitrarily and without a good reason. I disagree. The Board member considered what evidence Mr. Bitaxi might be able to give and how it would be relevant to any issue the Board needed to decide. Based on the representations of the appellants, the Board concluded that Mr. Bitaxi’s evidence would not be germane to (i.e. relevant with respect to) any issue it needed to decide.
[14] After the Board had rendered its oral decision dismissing all these procedural complaints, the appellants raised an allegation of a reasonable apprehension of bias on the part of the Board. On these motions they also submit they were not afforded a reasonable opportunity to make submissions to the Board on this issue.
[15] The appellants now submit that a reasonable apprehension of bias arises from differential treatment of the parties on the preliminary evidentiary issues it ruled upon. I disagree. The Board refused permission for them to lead their expert evidence by simply filing a report, but did so for a principled reason. They had not disclosed the report. Although the report may have only been available to them after the September 1st deadline in the August 5th procedural order, they had at least eleven days to produce it but chose to keep it to themselves. It was not a denial of procedural fairness to refuse to allow the appellants to introduce such evidence at the last minute, particularly on evidence going to the very heart of the issues to be decided under s. 45 of the Planning Act and especially in light of the express purpose of the August 5, 2008 Order.
[16] The Board had devoted almost three hours to the preliminary procedural issues raised by the appellants and gave them a full right of reply after the City’s responding submissions on the procedural issues. After the lunch break and the Board’s oral ruling on the various procedural matters raised by the appellants, there were further submissions received to clarify the Board’s ruling. It was only at that point that the appellants raised the suggestion of a reasonable apprehension of bias. The Board member refused to recuse herself. The appellants were afforded further time to consider whether they were prepared to proceed or not. They chose to leave the hearing and did not take part in the remainder of the proceeding before the Board.
[17] The Ontario Municipal Board is a statutory tribunal with wide jurisdiction and control over its own process and procedure. It has the power to determine its own procedures and practices and to make procedural orders. The Board has promulgated it own Rules of Practice and Procedure. Rule 3 states that the rules “shall be interpreted liberally so as to secure the just, most expeditious and cost effective determination of every proceeding on its merits”. Rule 5 specifies that “substantial compliance” with the requirements of the rules is sufficient. Rule 6 provides “the Board may grant all necessary exceptions from these rules or from a procedural order or grant other relief as it considers appropriate to ensure that the real questions in issue are determined in a just most expeditious and cost effective manner”. There is clear and compelling jurisprudence establishing the considerable deference the court gives to procedural orders and rulings within the tribunal’s jurisdiction. Discretionary procedural rulings and orders generally are not matters for the Divisional Court to address on appeal unless they amount to a denial of natural justice or jurisdictional error. Quite simply, the procedural issues raised by the appellants before the Board do not rise to that level. With the exception of its ruling on the appellants’ expert evidence, the procedural issues raised before the Board on December 1, 2008 may fairly be characterized as minor issues which the Board dealt with pursuant to its own discretionary procedural rules and which had no effect on the fairness or outcome of the hearing. Furthermore, the threshold for finding apprehended bias is high and requires cogent evidence. The appellants have failed to identify any statement made by the Board that could possibly support a finding of reasonable apprehension of bias. The appellants refer to the fact that they are members of a visible minority group. The insinuation of reasonable apprehension of bias based upon this fact has no foundation in the record.
[18] Having chosen to absent themselves from the hearing, the appellants cannot now collaterally attack the evidence that the Board relied on to dispose of the appeal. Indeed, the Board could have dismissed the appeal without hearing any evidence whatsoever from the City. The Board had no obligation to search for documents in the filings before it and examine those documents for possible merit in the appeal.
[19] The Board did not deny the appellants procedural fairness or breach any principle of natural justice on December 1, 2008. The moving parties have failed to establish any error of law or doubt concerning the correctness of the decision. Leave to appeal the decision rendered December 8, 2008 is denied.
[20] In light of the disposition of that motion, the second motion relating to the April 8, 2009 decision is moot. Even if I had accepted the proposition that the Board’s misapprehension of the third request for non-compliance was sufficient to grant leave to appeal on the third minor variance request, the appellants would have failed on the other two requests. The Board gave several reasons, not just the fact the side yards went from lot line to lot line. The Board gave multiple reasons for its conclusion that the requested variances “individually and collectively” failed the four part test under s. 45 of the Planning Act.
[21] Furthermore, as observed, the appeal could have been dismissed without any evidence at all when the appellants elected to leave the proceeding rather than participate. In my view, they walked away from their right to complain about the evidence or the merits.
[22] Both motions are therefore dismissed with costs fixed in total at $10,000. The costs shall be a joint and several obligation of Peter and Dr. Vanessa Tseng. Having found that Pauline Tseng is not properly a party to the proceeding, the order for costs does not extend to her.
Aston J.
DATE: December 18, 2009