CITATION: Opara and Leslie, 2012 ONSC 2483

COURT FILE NO.: 75/12

DATE: 2012/04/25

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: Opara AND lESLIE

BEFORE: Justice Moore

COUNSEL: Jeffery Streisfield, for the Applicants

Tom Halinski, for the Respondents

HEARD: 23 April 2012

ENDORSEMENT

[1] This matter involves an appeal under Section 96 of the Ontario Municipal Board Act, R.S.O. 1990, c.O.28 as amended from a Decision and Order of the Ontario Municipal Board (the Board) granting minor variance approvals.

[2] The Applicants insist that side yard variances were granted without a finding having been made in the decision concerning the intent and purpose of the zoning standards concerning side yard setbacks sought to be varied and how the development proposal otherwise maintains the general intent and purpose of the zoning bylaw.

[3] The Applicants also question the sufficiency of the Board’s reasons with reference to the purpose of the zoning standards sought to be varied.

[4] The parties agree that the Applicants are the owners of 35 Deloraine Avenue, Toronto, a property abutting to the east of the Respondents’ property, 39 Deloraine Avenue. The Decision arises from an application for minor variance approval to permit a rear two-story addition to the residence located at 39 Deloraine Avenue.

[5] Although four minor variances were sought and granted, the Applicants take issue only with variances relating to side yard setbacks.

[6] Expert witnesses testified before the Board. For the Applicants, Mr Manett, an expert planning witness, opined that the proposal did not meet the "four tests" for a minor variance approval, in part because the proposal did not maintain the intent and purpose of the applicable zoning provisions for side yard setbacks in zoning bylaw 86 and that the intent of the applicable zoning standards was to preclude rear yard additions to dwellings beyond 17 m for properties with narrow lots.

[7] The Applicants insist that the Board's Decision is silent on the intent and purpose of the side yard setback provisions of the applicable zoning bylaw to be varied but that the Board, in its Decision, did address the "official plan" test and "impact test".

[8] The board preferred the evidence of Mr. Stagl, the professional land use planner who provided evidence on behalf of the Applicants. As appears from a reading of the Decision, Mr Stagl described the site context and the variance sought. He redrafted the language of the variances so that there was specific reference to the applicable section of the zoning bylaw and by so doing, he provided clarity without materially altering the substance of the requested variances. The Board accepted and valued his explanation for proposed changes to the language of the variances and specifically agreed with his analysis and preferred it to that of Mr. Manett.

[9] The Board stated that the question to be answered is does the proposed development result in any significant adverse impacts such that the variances cannot be considered minor and it answered that question in the negative. It stated that the proposed development seeks to add 3 m² of living space on the second floor and 11 m² on the first floor from what already exists. In these circumstances, the Board declined to find that the proposed development will result in impacts which can be categorized as significantly adverse.

[10] The Board accepted Mr Stagl’s analysis whereby he asserted that the alignment of front walls of dwellings is regulated by the bylaw whereas the alignment of rear walls is not. In the result, the Board chose to not accept Mr. Manett’s criticism that the proposed development will not respect the existing physical character of the area. The Board concluded that the variance sought can be characterized as desirable and minor and following the analysis provided by Mr. Stagl, the proposed variance meets the four tests under the applicable planning legislation.

[11] In the Vincent case[^1], the Divisional Court stated that an application for a minor variance must meet the four part test by establishing that the variance be a minor variance; be desirable, in the opinion of the committee, for the appropriate development or use of the land, building or structure; maintain, in the opinion of the committee, the general intent and purpose of the zoning bylaw; and maintain, in the opinion of the committee, the general intent and purpose of the official plan. Further, it is incumbent on a committee of adjustment, or the Board in the event of an appeal, to consider each of these requirements and, in its reasons, sets out whatever may be reasonably necessary to demonstrate that it did so and that, before any application for a variances granted, it satisfied all of the requirements.

[12] The Applicants insist that the third test requires consideration and an opinion on whether or not the variance sought would maintain the general intent and purpose of the zoning bylaw and that, in turn, required the Board to engage in an analysis of the zoning bylaw to determine its general intent and purpose and to consider whether the variance sought would maintain that general intent and purpose. The Applicants submit that the Decision is silent on the specifics required to meet the third test

[13] This said however, the Applicants concede that more recently, the Court may have relaxed the minor variance analysis required by stating in the Simon case[^2] that the law does not require each test to be applied entirely separately and formulaically; it is sufficient if the reasons make it clear that the Board applied the correct tests substantially, taking the appropriate factors into consideration and that it considered the evidence properly. The Applicants insist that even if the analysis and application of each test has been relaxed, the Decision does not, fairly read, demonstrate the factors and the evidence appropriate to the application of the third test have been properly considered.

[14] The Applicants submit that the Decision contains no discussion or analysis of the intent and purpose of the applicable zoning standards or a finding as to how the intent and purpose of such zoning standards are maintained or are otherwise minor.

[15] The Applicants further concede that the Board is an expert tribunal, that the subject matter before it [being a minor variance appeal] is within its core area of expertise and that its decision is entitled to deference.

[16] The Applicants also assert that the deficiencies in the Decision are of sufficient importance to warrant the attention of the Divisional Court, to the extent that the Board's jurisdiction and sufficiency of its reasons for decision omits a finding regarding a mandated requirement of the four part test being the “general intent and purpose of the zoning provisions" sought to be varied. This raises doubt as to the correctness of the Board’s Decision and its reasons do not allow of meaningful appellate review in respect of the side yard variances and deprive the Applicants of the ability to know why the variances were granted.

[17] The Respondents assert that the Decision does address the considerations and evidence applicable to the application of the third test. By summarizing some of the evidence of Mr Stagl and by stating that it rejected the evidence of Mr Manett, the Respondents assert that the Board was alive to the matters it needed to consider and the Decision therefore stands up to scrutiny.

[18] The parties agree that the Board does not record or transcribe evidence it receives on minor variance appeal matters. It does, on occasion, accept outlines of evidence to be given by witnesses and in this case, the outline of Mr Manett’s evidence was received and made an exhibit. Whether or to what extent Mr Mannett’s evidence tracked the outline and the extent to which the Board made its Decision upon or despite either is not clear from the Decision itself.

[19] The Respondents point to the outline however as reflecting Mr Manett’s evidence and the live issues before the Board. By rejecting Mr Mannett’s interpretation of the intent of the zoning bylaw in the context of the instant variation request in favour of the views of Mr Stagl, the Respondents submit that the Board did indeed deal with the issue of the general purpose and intent of the bylaw.

[20] The Respondents say that the Board does not have to refer to all of the evidence before it and set out all of its findings but must simply show that it grappled with the substance of the matter bearing in mind the live issues in the proceeding. They rely upon the Clifford case.[^3] The Respondents insist that the Board’s Decision clearly fulfilled the required standard.

[21] In any event, the Respondents assert that the proposed appeal does not merit the attention of the Divisional Court as it does not raise a question of sufficient general or public importance and, like the issues in the Simon case,[^4] it is only a private dispute between neighbours that does not raise a new legal proposition or overturn an established one. The Board in Simon was doing what it routinely does in interpreting specific policies and applying them to the facts before it.

[22] The Respondents also contest whether this appeal raises a question of law or simply a question of mixed fact and law. On this point however the narrow question before me is whether the reasons demonstrate that the Board correctly applied the third test of the applicable four part test that it was mandated to apply. As such, what appears to be a question of mixed fact and law can be, and in this case is, a matter of error of law subject to the correctness standard.[^5]

[23] In connection with its discussion of the sufficiency of reasons, the court pointed out in the Clifford case[^6] that on judicial review of reasons given by an administrative board, the court must assess those reasons from a functional perspective to see if the basis of the decision is intelligible but, as well, it may be necessary to examine the reasons from a substantive perspective. Depending upon the standard of review, the court must determine whether the outcome and the reasons supporting it are reasonable and correct.

[24] There is no evidentiary record for this court to review and from which I can identify the substance of the issues and evidence that the Board actually grappled with. In the result, except to the extent that the reasons incorporate its findings upon the evidence it received and articulate whether or in what respects the Board determined that the side yard variances at issue were consistent with the intent and purpose of the zoning standards concerning side yard setbacks sought to be varied and how the development proposal otherwise maintains the general intent and purpose of the zoning bylaw, the parties and this court are left to speculate and that places this aspect of the decision outside the Board’s obligation to consider and apply the third test as detailed above.

[25] This shortcoming in the Decision is a fundamental flaw and removes the matter from the realm of private disputes between neighbours and vaults it into the category of matters of sufficient importance to warrant the attention of the Divisional Court.

[26] Accordingly, leave to appeal is granted and the Court may be asked to determine:

• Did the Board err in law by failing to provide its own analysis and reasons for finding that each side yard variance sought maintained the general intent and purpose of the zoning bylaw, being one of the four components of the mandated four part test for minor variance approval?

• Did the Board err in law by failing to make an explicit finding in regards to the general intent and purpose of the zoning provision to be varied?

• Did the Board err in law by failing to give any or adequate reasons regarding how the general intent and purpose of the side yard setback provisions of the zoning bylaw, either individually or collectively have been maintained?

[27] The Applicants shall recover costs of this application, inclusive of fee, disbursements and HST components totaling $5,070.00.

Moore J.

DATE: 25 April 2012

[^1]: Vincent v. DeGasperis, 2005 24263 (ON SCDC), [2005] O.J. No. 2890 (Div. Ct.), at paras 9, 11, 16 and 17.

[^2]: Simon v. Bowie, [2010] O.J. No. 6098 (Div. Ct.) at para 15

[^3]: Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670, leave refused [2009] S.C.C.A. No. 461 at para 30.

[^4]: Ibid at para 28

[^5]: Housen v. Nikolaisen, 2002 SCC 33 at para 27

[^6]: Ibid, at paras 31 and 32.