CITATION: City of Toronto v. W. J. Holdings Limited, 2010 ONSC 853
DIVISIONAL COURT FILE NO.: 18/09 and 495/09
DATE: 20100203
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
CITY OF TORONTO
Moving Party
(Appellant)
– and –
W. J. HOLDINGS LIMITED, CAR-ALLAN INVESTMENTS LIMITED and DAVHILL INVESTMENTS LIMITED
Responding Parties
(Respondents)
Mark Siboni and
Sharon Haniford, for the Moving Party (Appellant)
Robert G. Doumani, for the Responding Parties (Respondents)
HEARD at Toronto: February 3, 2010
DAMBROT J. (orally)
[1] The City of Toronto (the “City”) seeks leave to appeal two decisions made by the Ontario Municipal Board (the “Board”) ordering the City to issue demolition permits in respect of thirteen buildings on a block of land located on Bloor Street West, situated just north of High Park and bound by Pacific Avenue to the west and Oakmount Road to the East (the “lands”).
Background
[2] W. J. Holdings Limited, Car-Allan Investments Limited and Davhill Investments Limited, (the “respondents”) own the thirteen buildings that currently stand on the lands. On March 6, 2006, they applied to the City for demolition permits in respect of these thirteen properties. No redevelopment applications have been submitted to or approved by the City for the lands. No application for the construction of any replacement building or buildings have been submitted to the City.
[3] The City did not issue the permits sought in respect of these properties nor did it at that time refuse to issue permits. The respondents brought an appeal from the failure of the City to issue permits to the Board. The City subsequently brought a motion to dismiss the appeals on the ground that the Board did not have jurisdiction to hear them because the appeals were not commenced within the statutory time limits. On December 30, 2008, the Board dismissed the City’s motion. The Board assumed jurisdiction and considered the merits of the respondents’ appeals. On September 29, 2009, the Board issued a decision allowing the respondent’s appeals and authorizing the issuance of the thirteen demolition permits.
[4] It is the position of the City that the Board erred in law in dismissing the City’s motion and in allowing the respondents’ appeals.
Analysis
[5] In determining whether to grant leave to appeal from a decision of the Board, this Court generally applies the following test:
(i) there must be a point of law of sufficient importance to merit the attention of Divisional Court, and
(ii) there must be some reason to doubt the legal correctness of the decision.
[6] It is convenient in this case to consider these two matters in reverse order.
Is There Some Reason to Doubt the Legal Correctness of the Decisions?
[7] I will consider this question first with respect to the jurisdictional decision and then with respect to the merits decision.
1. The Jurisdictional Decision
[8] As I have noted, the respondents applied to the City of Toronto’s building division for permission to demolish the buildings in question on March 2, 2006. The City made no decision in respect of these thirteen demolition permit applications within one month of their having been filed. Section 3 of Act respecting the City of Toronto, 1985, S.O. 1985, c.Pr.22, (“COTA”), establishes time limits for the filing of appeals related to demolition permit applications. Section 3 reads:
Notwithstanding any other Act, where council of the Corporation has refused to issue a demolition permit under subsection 33(3) of the Planning Act, 1983, or where the council has neglected to make a decision therein within one month after receipt of the application by the clerk of the Corporation and where an appeal is taken by the applicant to the Ontario Municipal Board, the appeal shall be filed within twenty days of the mailing of the notice of the refusal, or where the council has neglected to make a decision within one month after receipt of the application by the clerk, the appeal shall be filed within twenty days after the one month period first following receipt of the application by the clerk, and the Board shall hear the appeal and either dismiss it or direct that the demolition permit be issued, and the decision of the Board shall be final.
[9] The failure of the City to make a decision in respect of these demolition applications was not appealed to the Board until November 16, 2007, more than nineteen months after the demolition applications had originally been filed.
[10] In its motion to dismiss, the City argued that since the respondents had not filed their appeal within the time permitted by s.3, the Board had no jurisdiction to hear the appeal. In response, the respondents argued that s.3 of COTA was in conflict with and had to give way to s.33(4) of the Planning Act.
[11] Subsection 33(3) and (4) of that Act provide:
(3) Subject to subsection (6), where application is made to the council for a permit to demolish residential property, the council may issue the permit or refuse to issue the permit.
(4) Where the council refuses to issue the permit or neglects to make a decision thereon within thirty days after the receipt by the clerk of the municipality of the application, the applicant may appeal to the Municipal Board and the Board shall hear the appeal and either dismiss the same or direct that the demolition permit be issued, and the decision of the Board shall be final.
[12] As can be seen, COTA does not create a separate vehicle for appealing the refusal or failure to issue a demolition permit. It simply adds a time limit for the filing of an appeal under the Planning Act where it is the City of Toronto that has failed or refused to issue a permit.
[13] In support of its position, the respondent referred the Board to s.71 of the Planning Act which provides:
- In the event of a conflict between the provisions of this and any other general or special Act, the provisions of this Act prevail.
[14] The respondent argued that there was a conflict between s.3 of COTA and s.33(4) of the Planning Act on the basis that s.3 would forbid the Board from hearing the appeal where the time has run while s.33 of the Planning Act would not. The Board accepted this argument. It stated:
Section 71 of the Planning Act provides clear unqualified direction that when there is a conflict between its provisions and those of any other general or Special Act, the provisions of the Planning Act prevail. There is no qualification that section 71 should only apply where the provisions of two Acts are always in conflict. Section 71 simply states: “In the event of conflict…” The current situation is such an event. The City of Toronto Act, 1985 is considered a Special Act. As such, section 71 of the Planning Act applies and therefore the provisions of the Planning Act prevail.
[15] In my view, the Board erred in law in accepting this argument. As a result, I conclude that there is reason to doubt the correctness of the Board’s decision on a question of law within the meaning of s.96(1) of the Ontario Municipal Board Act.
[16] It is important to note that despite s.71 of the Planning Act, which the legislature must be taken to have been aware of, it enacted the time limits in s.3 of COTA, and opened s.3 with the words “Notwithstanding any other Act”. Furthermore, it must be presumed that the legislature “turned” its mind to the matter again when it left s.3 of COTA in place when it enacted the City of Toronto Act, 2006. As a result it appears to me that if there is a conflict between s.3 of COTA and s.33 of the Planning Act, s.3 must prevail.
[17] But, the true answer to this question, in my view, is that in reality there is no conflict between s.3 and s.33. The two sections can readily co-exist, and it is plainly open to a party such as the respondent to comply with both.
[18] As noted by the applicant, the first principle that one must apply in considering whether two legislative enactments are in conflict is to invoke the presumption or principle of coherence. In order to apply the presumption of coherence, effect must be given to every statutory provision to the fullest extent possible without legislative conflict. In Lévis (City) v. Fraternité des policies de Lévis Inc., 2007 SCC 14, [2007] 1 S.C.R. 591, Bastarache J. explained the concept of legislative conflict and the presumption of legislative coherence as follows at paragraph 47:
The starting point in any analysis of legislative conflict is that legislative coherence is presumed, and an interpretation which results in conflict should be eschewed unless it is unavoidable. The test for determining whether an unavoidable conflict exists is well stated by Professor Coté in his treatise on statutory interpretation:
According to case law, two statutes are not repugnant simply because they deal with the same subject: application of one must implicitly or explicitly preclude application of the other.
Thus, a law which provides for the expulsion of a train passenger who fails to pay the fare is not in conflict with another law that only provides for a fine because the application of one law did not exclude the application of the other. Unavoidable conflicts, on the other hand, occur when two pieces of legislation are directly contradictory or where their concurrent application would lead to unreasonable or absurd results. A law, for example, which allows for the extension of a time limit for filing an appeal only before it expires is in direct conflict with another law which allows for an extension to be granted after the time limit has expired.
[19] Here, it is possible to comply with both the specific appeal time limits in s.3 of COTA, and the more general provision in s.33(4) of the Planning Act, which merely describes the entitlement to seek an appeal. If one complies with the specific appeal provisions in COTA, one can assert the entitlement to an appeal described in the Planning Act.
[20] The respondent argues that at the time that it filed its appeal, there was a conflict. One provision permitted it to file an appeal while the other did not. But that is not what is meant by a conflict. At the time that the respondent’s appeal rights accrued, it was open to it to comply with both provisions. The so-called conflict is simply a result of the respondent ignoring the time limit in s.3. It chose to create the problem it faces. Having done so, it cannot now cry “conflict”. In fairness, it is clear that the respondents were unaware of s.3, but I do not see this as making any difference.
[21] For a similar result in respect of provisions of the Canada Labour Code and the Canada Business Corporation Act, see Western Express Air Lines Inc., [2006] B.C.J. No. 1906.
[22] Before deciding whether or not to grant leave in respect of this issue, it is necessary to consider an alternative basis for the Board’s decision that it had jurisdiction to hear the appeals. In a pre-hearing conference decision dated April 28, 2008, in relation to this appeal, an appeal, it must be remembered, from the failure of the City to issue permits, the Board indicated that it would benefit from knowing the City’s final position on the demolition applications. As a result, it ordered the City to bring the matter forward to the relevant committees and/or Council at the earliest possible opportunity to obtain a City decision on the demolition application.
[23] City Council of course complied with this order, and considered the matter of the respondents’ demolition permit applications. At its meetings held on July 15, 16 and 17, 2008, the decision was made to refuse the applications. The respondents were notified of this decision by letter dated July 26, 2008. The respondents chose not to appeal this decision to refuse the applications but instead continued with their appeal from the City’s earlier failure to make a decision on the application within thirty days after receipt of the applications by the clerk of the municipality.
[24] The respondents argued that the fact that the appeals referred to the earlier failure of the City to make a decision was a technicality and should not be determinative. The Board agreed. The Member stated:
Mr. Doumani submits that the fact that the appeals which were filed referred to the “failure to make a decision” is a technicality and the Board should not determine this matter on a technicality. He notes the decision of the Supreme Court of Canada, Novic v. Novic (1983), in which the Court refused to rely upon a technicality to reverse a decision of lower Court regarding a child custody matter. The issue in that case as in the appeal before this Board was filing within a specified time limit. The Court did not accept the position that although technically there might have been some breach of time limits, that leave to appeal should not be granted.
The Board agrees with Mr. Doumani that the appeals before the Board should not turn on a technicality.
[25] After reciting the history of the proceeding, he stated:
Quite simply, the City acknowledged that there were valid appeals filed with the Board during the 20-day period for filing as specified in section 3 of the City of Toronto Act, 1985. Even if the City rejects the concept that they have accepted the jurisdiction of the Planning Act regarding these appeals, the Board finds that through the events that occurred within the 20 days after the City’s refusal the requirements of s.3 of the City’s Act have been met.
To conclude otherwise would be to determine this matter on a technicality, that is, that the appeal materials referred to the “failure to make a decision”, rather than the refusal. All parties recognize that the appellant did not agree with the City’s position regarding the demolition permit applications and chose to exercise the statutory right to appeal. The appeal was filed. The matter should be determined on the merits of the planning issues raised in the appeal, not in the basis of the wording in the appeal submission. This is particularly relevant given the potential of new applications for a demolition falling under the requirements of s.111 of the City of Toronto Act, 2006. This would substantially change the planning regime under which the Appellant’s proposal would be reviewed.
[26] In my view, once again, he erred. Technical or not, the appeal under consideration was out of time. The Notice of Appeal did not simply misdescribe the matter under appeal. To dismiss the respondent’s appeal based on a misdescription would be to revert to the punctilio of a former age. Instead, the Notice of Appeal related to a separate and much earlier event and was brought out of time. Furthermore, the decision of the Supreme Court of Canada in Novic v. Novic, [1983] 1 S.C.R. 700 is of no assistance to the respondents. That case involved an application for leave to appeal to the Supreme Court of Canada pursuant to s.18 of the Divorce Act. Section 18(2) of the Divorce Act provides:
Leave to appeal under this section may be granted within thirty days from the pronouncing of the judgment or order being appealed from or within such extended time as the Supreme Court of Canada or a judge thereof may, before the expiration of those thirty days, fix or allow.
[27] The Court concluded that when the Court set the hearing down after the expiration of the time limit, the Court in effect granted the applicant an extension of time and so the application was regular. The Chief Justice stated at page 702:
The principle authorities relied on by counsel for the mother are Massicotte v. Boutin, [1969] S.C.R. 818, and Kumpas v. Kumpas, [1970] S.C.R. 438. Those were cases in which leave to appeal was not sought within the prescribed statutory period, and hence no question of extension of time arose. Indeed, applications for leave to appeal were not brought within the statutory period, so the cases fell for want of jurisdiction. The present case is different. There was an application for leave to appeal brought within the required period and the question that remained to support jurisdiction was whether leave was granted within the period or whether time for granting leave was extended within the period. This Court, within the period, fixed November 16, 1981 as the time for hearing the application for leave. This was surely an extension of time and brought the case properly before the Court.
[28] This case is quite different. Here, the respondents filed their appeal out of time and, in addition, there is no provision for an extension of time. Novic provides no basis for the Board to excuse the respondents’ lateness.
[29] The respondents acknowledge that there is no explicit provision permitting an extension of time to file their Notice of Appeal but argue that such power is implicit in Rule 6 of the Ontario Municipal Board Rules of Practice and Procedure. That Rule is entitled “Board May Exempt From Rules,” and 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.
[30] This rule provides for relief from the effect of the Board’s own rules and decisions. I see nothing in the rule that purports to permit the Board to relieve against any statutory time limit, and I doubt that the rule making authority for the Board’s rules, whether found in s. 91 of the Ontario Municipal Board Act or s.25.1(1) of the Statutory Powers Procedure Act provides for such relief. In both cases the rules are limited to the governing of practice and procedure, and do not permit the expansion of jurisdiction.
[31] Finally, like the Board, I reject the argument that the City in some way attorned to the jurisdiction of the Court.
[32] Accordingly, and despite the very able arguments of Mr. Doumani, I am of view that there is reason to doubt the legal correctness of the jurisdiction decision.
2. The Merits Decision
[33] I turn next to the merits decision.
[34] The overarching complaint of the City is that the Board erred in law in allowing demolition without any information or plans regarding the post demolition development of the land by the respondents, or any indication that development was imminent. As a result, the Board failed to have regard to matters of provincial interest, and its decision is inconsistent with the governing provincial and City policies and is contrary to law.
[35] In support of this argument, the City points to numerous subsidiary errors of law that it says were made by the Board that led to the erroneous outcome.
[36] It is important to note that the City appears to have shifted ground at least to some degree on this application. Before the Board, it argued that the appellant was required to have approved plans for redevelopment of the site before demolition permits can be issued. The City pointed to the legislative framework which, it said, required replacement considerations to be taken into account before demolition could occur. This accounts for the format of the decision which the City now points to in support of its argument.
[37] In the course of his reasons, Member Conti examined the proposal of the appellant and the planning context. In particular, he examined whether the proposed demolition had adequate regards to the purposes of the Planning Act found in s.1.1; had adequate regards to the matters of provincial interest in s.2 of the Act; was consistent with Provincial Policy Statement (2005) as required by s.3 of the Act; conformed with or maintained the intent of the Growth Plan for the Greater Golden Horseshoe; conformed to or maintained the intent of the City of Toronto Official Plan; maintained the intent and purpose of s.33 of the Planning Act; was premature; was in the public interest; and was good planning.
[38] At the risk of unduly simplifying the Member’s extensive reasons, I note that with respect to each planning provision and policy, understandably given the City’s position, he concluded that there was no requirement that redevelopment plans be filed in association with the demolition application. This is not an indication that he failed to examine the policies underlying these various instruments as the City contends. Rather, it is a response to the City’s argument that the filing of redevelopment plans in association with the demolition permit application was required.
[39] But the Board did not stop there. The Member also recognized in a variety of ways the very point advanced by the City before me, that an interruption in the use of the land, depending on the length of the break, would affect provincial interests. He recognized that if the land stood vacant after demolition for an extended period of time there would be a lack of consistency with provincial policies. More than that, he recognized that there was an express interest in the City’s 1994 Official Plan, which applied to this appeal, that redevelopment of residential property should closely follow demolition. He also considered the 2006 Official Plan, although it did not strictly apply to this appeal.
[40] In the end, the Board made and explained the following specific findings:
(i) The Board finds that there are no provisions in the Planning Act, the City’s Official Plans or other applicable planning documents that require the filing of plans for replacement buildings prior to the issuance of permits for demolition.
(ii) The Board finds that there are no requirements in the legislation or applicable planning documents for the replacement of demolished buildings within a specific period of time.
(iii) Based upon the evidence and submissions, the Board finds there is nothing in the legislation or relevant planning documents that would prevent the demolition permits from being issued, and the demolitions should be allowed.
(iv) The Board finds that the cases raised by the appellant . . . do not identify a practice of the City contrary to their established policy.
(v) The Board finds that the City’s concerns about the protection of housing stock, rental housing, and about the built form of replacement building merit consideration.
(vi) Furthermore, the Board finds that while redevelopment of the site is likely, it is in the public interest to ensure that redevelopment occurs in a timely manner.
[41] Having regard to these findings and the discussion of the issues undertaken by the Board, I can see no possibility that the Divisional Court could conclude that the Board failed to have regard to matters of provincial interest, and therefore that the Board committed an error of law.
[42] I note that the City argued strenuously that the Member was required to consider each relevant consideration in each policy instrument and specifically state whether or not it applied in the circumstances, and what weight he gave to that consideration. In my view, such an approach is not necessary. The Board was entitled to synthesize the many considerations and reach logical conclusions. It was not obliged to give reasons in the manner suggested by the City. Nor in my view would it be possible or helpful to require the Board to assign weight to each consideration individually. It is quite possible to meaningfully review the decision of the Board without resort to such formalism.
[43] In addition to the conclusions I have outlined, the Board also concluded that the demolition application was not premature, that it was in the public interest and that it represented good planning. The Member was satisfied that the appellant intended to redevelop the lands and that the form of redevelopment would be appropriately controlled by the designations in the Official Plan through the zoning bylaw. He went on to say that the City’s interest in ensuring that the land not sit vacant for an extended period and be properly landscaped could be addressed by placing limits on the time the land will be in a vacant state and imposing a landscape plan as conditions of the grant of the permit.
[44] The City complains that the Board erred in concluding that the appellants would in fact redevelop the site on the basis of a presumed economic interest. The City might have a point if this conclusion were based on nothing more than a presumption. But there is a good deal more that the Board took into account. The Member specifically noted as considerations supporting his conclusion the size of the site and the appellant’s expressed interest in redevelopment, which was in fact recognized by the appellant at the hearing. In addition, counsel for the respondents took me through a body of additional evidence that supports the Board’s conclusion. I see no need to repeat it here. This argument raises no question of law.
[45] The City also objects to the Board making use of the imposition of conditions as a way to satisfy provincial policy interests. It points to s.33(4) of the Planning Act, which permits the Board only to dismiss the appeal, or direct that the demolition permit be issued. In my view, it is not inconsistent with this provision for the Board to direct the City to issue the permits, but give it the opportunity to attach conditions to those permits as provided for by s.2 of the City of Toronto Act, 1991.
[46] In the end, I see no basis for a conclusion that the Board’s decision is inconsistent with the governing provincial policies and planning instruments and the City Official Plan, and that it is contrary to law. I readily acknowledge that the Board took a risk respecting redevelopment that the City was not willing to take. The City might not agree with that decision. I might not agree with it either, and neither might the Court hearing an appeal. But that does not create an error in law.
[47] There is no reason to doubt the legal correctness of the merits decision.
Is there a Point of Law of Sufficient Importance to Merit the Attention of the Divisional Court?
[48] In view of my conclusion that there is no reason to doubt the legal correctness of the merits decision, the second prong of the test for leave to appeal raises the simple question whether the jurisdictional issue involves a point of law of sufficient importance to merit the attention of the Divisional Court. Given the technical nature of this issue, it would be tempting to say that it does not raise an issue of importance, particularly in light of the small number of appeals taken to the Ontario Municipal Board from the refusal or failure to grant demolition permits. But the fact is that the Board’s decision on this issue amounts to a determination that a validly enacted section of an Act of the legislature is of no force or effect. That in and of itself, is a matter of considerable importance, sufficient to merit the attention of the Divisional Court.
Disposition
[49] As a result, I grant the City leave to appeal on the following question:
Did the Board err in law in determining that it had jurisdiction to hear the appeal brought by the respondents?
[50] I would be remiss if I left this matter without thanking all counsel for the high quality of their arguments on this motion.
[51] On the agreement of the parties, I fix costs in the amount of $7,500.00, in the cause, depending upon the outcome of the appeal before a full panel of the Divisional Court.
DAMBROT J.
Date of Reasons for Judgment: February 3, 2010
Date of Release: February 18, 2010
CITATION: City of Toronto v. W. J. Holdings Limited, 2010 ONSC 853
DIVISIONAL COURT FILE NO.: 18/09 and 495/09
DATE: 20100203
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
CITY OF TORONTO
Moving Party
(Appellant)
– and –
W. J. HOLDINGS LIMITED, CAR-ALLAN INVESTMENTS LIMITED and DAVHILL INVESTMENTS LIMITED
Responding Parties
(Respondents)
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: February 3, 2010
Date of Release: February 18, 2010