North Barrie Plaza Limited v. 1729981 Ontario Ltd., 2011 ONSC 3825

CITATION: North Barrie Plaza Limited v. 1729981 Ontario Ltd., 2011 ONSC 3825 NEWMARKET COURT FILE NO.: DC-11-00282-ML DATE: 2011-06-17

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

NORTH BARRIE PLAZA LIMITED Applicant

– and –

1729981 ONTARIO LTD. and THE CORPORATION OF THE CITY OF BARRIE Respondents

COUNSEL: R. Minster, for the Applicant D. Cherepacha, for the Respondent 1729981 Ontario Ltd. No-one appearing for the Respondent the Corporation of the City of Barrie

HEARD: June 2, 2011

MOTION FOR LEAVE TO APPEAL PURSUANT TO s.96(1) OF THE ONTARIO MUNICIPAL BOARD ACT, R.S.O. 1990, c.O.28

McISAAC J.

[1] The applicant (“NBPL”) seeks leave to appeal the order of Board Member M.A. Sills dated February 1, 2011 which had affirmed a decision of the City of Barrie Committee of Adjustments authorizing variances to the setback requirements of its zoning by-law.

BACKGROUND

[2] The respondent 1729981 Ontario Ltd. (“172”) owns a 0.25 acre commercial property on the west side of Bayfield Street in Barrie. It wishes to demolish a 63 square metre single storey vacant building and replace it with a 300 square metre two storey commercial building. To accommodate that redevelopment, it seeks a reduction of the southerly side yard setback from three to 1.5 metres and of the westerly side yard setback from seven to 1.5 metres. NBPL, the owner of a much larger abutting commercial property, objects to the variances and suggests that the Board Member made the following legal errors in relation to s.45(1) of the Planning Act, R.S.O. 1990, c.P.13:

• failure to address what constitute a “minor” variance;

• failure to address the test of “desirability”; and

• failure to consider all forms of “impact” on adjoining property owners.

[3] In addition, NBPL advances an overarching complaint that the reasons of the Board member are insufficient.

TEST FOR LEAVE

[4] Leave to appeal a decision of the Board is available in the following circumstances:

(i) if it involves a question of law;

(ii) if there is some reason to doubt the correctness of the Board’s decision; and

(iii) if the appeal raises a point of law sufficient to warrant the attention of the Divisional Court.

See DeGasperis v. Toronto (City) Committee of Adjustment (2004) 2004 18310 (ON SCDC), 185 O.A.C. 176 at para. 3 (Div. Ct.) (leave to appeal).

ANALYSIS

1. Planning Act Issues:

[5] s.45(1) of the Planning Act, R.S.O. 1990, c.P13 states:

The committee of adjustment, upon the application of the owner of any land, building or structure affected by any by-law that is passed under s.34 or 38, or a predecessor of such sections, or any person authorized in writing by the owner, may, despite any other Act, authorize such minor variance from the provisions of the by-law, in respect of the land, building or structure or the use thereof, as in its opinion is desirable for the appropriate development or use of the land, building or structure, if in the opinion of the committee the general intent and purpose of the by-law and of the official plan, if any, are maintained. [my emphasis added]

(i) “minor” variance

[6] The applicant suggests that the side yard variance involved a change of 200 percent and the rear yard variance involved a 466 percent change. This degree of variance was enormous, yet the Board member failed or refused to consider the extent of variation sought. Accordingly, the Board member fell into legal error.

[7] I agree with the respondent that the applicant has artificially inflated the magnitude of the variances sought. The side yard reduction is only 50 percent and the rear yard reduction is almost 90 percent. In addition, I agree with the respondent that “minor” is a relative term demanding a good deal of flexibility: see Perry v. Taggart 1971 488 (ON SC), [1971] 3 O.R. 666 at para. 16. As suggested by the applicant, it involves a consideration of both size and importance which includes impact: see Vincent v. DeGasperis (2005) 2005 24263 (ON SCDC), 200 O.A.C. 392 (Div.Ct.) (merits) at paras. 12-13.

[8] In my view, it would be disingenuous in the extreme to assume the Board member proceeded to draft the Reasons for Judgment herein while oblivious to the extent of variances sought by the respondent. They are specifically referred to at page 2 of those reasons and, in my view, are incorporated by reference in the assessment of potential impact on neighbouring properties including those of the applicant at the bottom of page 9 thereof.

(ii) “desirability”

[9] The applicant suggests that the Board member completely failed to address this factor by limiting the assessment to the “appropriate use of the land”. However, I agree that the Board member addressed a wider public interest context in the reasons at page 15. In particular, the newly-configured building would accommodate a “broader array of commercial uses”.

(iii) Failure to consider “impact”

[10] The applicant suggests that the Board member failed to address and provide reasons to disregard its concerns associated with the proposed variances, including its rights to expand existing buildings. I agree with the respondent that the Board member did consider each of the applicant’s concerns but dismissed them as unfounded: see pages 15-16 o the Reasons for Judgment. These include:

• pedestrian/vehicular access;

• public safety;

• property maintenance;

• adverse shading or shadowing impacts;

• appropriate buffer between buildings;

• future construction; and

• parking.

[11] Insofar as the applicant’s concern about the impact of the proposed re-development on the visibility of its tenants by vehicles passing on Bayfield Street, the Board member found this factor irrelevant. As well, the Board found that the applicant’s argument that the respondent’s “as-of-right” expansion being sufficient to be unpersuasive. I have not been satisfied that either of these findings amount to an error of law.

[12] In conclusion, the applicant has failed to persuade me that leave should be granted on the basis of complaints associated with s.45(1) of the Planning Act.

2. Absence/Insufficiency of Reasons

[13] The applicant suggests that the Reasons for Judgment by the Board member in the instant case fail to meet the general test for adequacy and the specific four-part test articulated by s.45(1) of the Planning Act.

[14] In relation to the general complaint, the applicant suggests that the reasons disclose no rational basis for preferring the evidence of the respondent’s expert planner, Amadio, over that of the applicant’s expert, Kirk. It is true that at the outset of the section “Analysis and Disposition”, the Board member stated:

The Board has considered the concerns of the Appellant and carefully examined the professional planning evidence. In this regard, I found that the submissions of Mr. Amadio to be more comprehensive and compelling.

[15] The appellant suggests that this passage supports its complaint that the Board member’s reasons were merely conclusory and reflective of mere “catchwords”: see Vincent v. DeGasperis (merits), supra, at para. 26. The respondent, on the other hand, submits that the reasons herein are sufficient in light of the recent ruling of the Ontario Court of Appeal in Clifford v. Ontario (Attorney General), 2009 ONCA. In that case, Goudge, J.A. for the court held at para. 29:

…[T]he “path” taken by the tribunal to reach its decision must be clear from the reasons read in the context of the proceeding, but it is not necessary that the tribunal describe every landmark along the way.

[16] In the instant case, the Board member articulated reasons for why he preferred the testimony of the respondent’s planner over that of the applicants: it was found to be “more comprehensive and compelling”. The task was to hear the conflicting evidence, to weigh it and then determine which made more sense. The applicant has failed to show me that the Board member acted unreasonably in this assessment. There is a visible roadmap to this destination that the applicant finds unsavoury. But that is not the stuff of legal error.

[17] The applicant also suggests legal error in these reasons alleging a failure to address the “four tests” in s.45(1) of the Planning Act, in particular a “careful and detailed analysis” of each one: see Vincent v. DeGasperis (merits), supra, at para. 20. I have already dealt with the first two of the four tests, that is, whether the variances were “minor” and “desirable”. The Board member found that the proposed development conformed with Provincial planning policies and that the variances maintained the general intent and purpose of the City of Barrie Official Plan. The proposal was consistent with the policy of intensification and more efficient use of land and existing infrastructure. It promoted the Official Plan goals of encouraging the maintenance and expansion of the commercial service sector which, in turn, enhances the provision of goods, services and employment opportunities. The Board member went on to find that the proposed variances were consistent with the intent and purpose of both the existing by-law and the new comprehensive zoning by-law because they involved a permitted use and the building design was in keeping with the overall character development in the immediate area and along Bayfield Street.

[18] I am satisfied that these reasons conform with the need for “careful and detailed analysis”. They tell the applicant and the respondent and, indeed, any reader how the Board member got from “A” to “B”. It was not necessary to articulate every “landmark along the way”.

3. Sufficient Importance to Warrant the Attention of the Divisional Court

[19] I have not been persuaded, in any event, that the issues between these two parties are of sufficient importance to require their referral to a panel of this court. The matter engages no issue of general importance: see Halton (Region) v. Ontario (Ministry of Municipal Affairs and Housing) (2007) 31 M.P.L.R. (4th) 252 (Ont.S.C.J.) at paras 17-8. Accordingly, the motion fails on this ground as well.

CONCLUSION

[20] For all of these reasons, the motion for leave to appeal is dismissed. If necessary, I am prepared to consider each side’s brief submissions as to costs, those of the respondent to be filed within 30 days of the release of these reasons and those of the applicant, 15 days thereafter.

McISAAC J.

Released: June 17, 2011