Tseng v. City of Toronto, 2011 ONSC 191

Motion to Vary

1The moving party, Vanessa Tseng, has brought a motion pursuant to s.21(5) of the Courts of Justice Act, R.S.O. 1990, c.C.43 to vary the order of Aston J., dated December 18, 2009, refusing leave to appeal from two orders of the Ontario Municipal Board. The Board dismissed an appeal from a decision of the Committee of Adjustment of the City of Toronto, refusing to grant three minor variances sought by the moving party and her brother.

2This Court will grant a motion to vary the decision of a Divisional Court motions judge refusing leave to appeal only if the motions judge declined jurisdiction - for example, by applying the wrong test for leave to appeal or failing to give a party the right to be heard (see Millcraft Investment Corporation v. Ontario (Regional Assessment Commissioner, Region No. 3), 2000 22330 (ON SC), [2000] O.J. No. 269 (Div. Ct.) at para. 28).

3Leave to appeal a decision of the Ontario Municipal Board can only be granted on a question of law (Ontario Municipal Board Act, R.S.O. 1990, c.O.28, s.96(1)).

4The motions judge did not decline jurisdiction. He applied the correct test for leave (see for example, paragraph 19 of his reasons). Even if the Board made a factual error in describing the location of the addition in relation to the southerly lot line, the motions judge correctly concluded that this did not constitute a jurisdictional error or an error of law. He also was correct that the moving party would not have succeeded in obtaining approval of the other two variances sought, even if there was an error respecting the third variance. Moreover, we agree with the motions judge when he said at paragraph 18 of his reasons:

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.

5Finally, the motions judge correctly held that there was no reason to doubt the correctness of the decision based on a denial of procedural fairness or reasonable apprehension of bias. The Board was well within its jurisdiction to conclude that the zoning examiner, had he been present, would not have provided relevant evidence that was not otherwise available before the Board.

6As the motions judge did not decline jurisdiction, the motion to vary his order is dismissed.

FERRIER J.

Costs

7The respondent seeks substantial indemnity costs essentially for two reasons. One, in the material filed by the moving party, repeated statements are made that the planner who testified before the Board gave false and misleading evidence. Secondly, the material filed by the moving party accuses the City, which in the context includes counsel for the City, of withholding relevant evidence in the hearing before Aston J.

8The submission of the moving party continued the position that had been advanced in the material and I note that Pauline Tseng, who appeared on behalf of the moving party with the leave of this Court, also had prepared the material upon which the moving party relied. This position was maintained by the moving party even after this Court strongly noted the difference between mistaken testimony and false or misleading testimony. This conduct by litigants must be discouraged at every turn. The Court should not tolerate excessive language that has the potential to damage reputations of individuals who have no practical way to defend themselves from such attacks. When parties appear before tribunals or the courts, they should make some effort to understand the need to maintain the dignity and civility that the processes of these bodies require.

9However, Mr. Kallio, the moving party being unrepresented, we feel that these factors should not lead to an award of substantial indemnity costs in this case. We hope that it will be sufficient for us to make clear that on the record before us there is nothing to suggest any improper behaviour on the part of the planner, Ms. Carou, the City or counsel for the City. We fix the costs at $7,500 inclusive of disbursements and HST.