Plotkine v. Seidenfeld, 2014 ONSC 4157
CITATION: Plotkine v. Seidenfeld, 2014 ONSC 4157
DIVISIONAL COURT FILE NO.: 172/14
DATE: 20140716
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
IN THE MATTER OF 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 delivered by M.A. Sills issued on March 24, 2014, in respect of OMB File No. PL131000
BETWEEN:
ANATOLI PLOTKINE
Moving Party (Appellant)
– and –
ALLAN AND SUSAN SEIDENFELD
Responding Parties (Respondents)
Johanna R. Shapira, for the Moving Party/Appellant
Alan B. Dryer & Orly Kahane-Rapport, for the Responding Parties/Respondents
HEARD: June 18, 2014
LEDERER J.:
[1] This is a motion for leave to appeal a decision of the Ontario Municipal Board (“OMB”).
Background
[2] The responding parties, Allan and Susan Seidenfeld (the “Seidenfelds”), wish to build a home, at 7 Forest Wood, in the City of Toronto, that is larger than the present zoning would allow. They applied for ten minor variances that would accommodate the structure they propose to build. The moving party, Anatoli Plotkine, lives next door. He is opposed to the variances being approved.
[3] The Seidenfelds filed an application with the North York panel of the City of Toronto Committee of Adjustment. Anatoli Plotkine filed a letter of objection outlining his concerns. The Committee also received 12 letters, all in the same form, from surrounding neighbours indicating they had no objection to the project. The Committee held a hearing on July 4, 2013. It refused the variances.
[4] The Seidenfelds appealed the refusal of the Committee to the OMB. It held a hearing on February 18, 2014. Anatoli Plotkine attended, sought and was given “participant”, not “party”, status. I will return to the distinction between the two. The hearing lasted one hour. Anatoli Plotkine gave evidence at the hearing, as did Franco Romano, a professional land use planner. The planner gave evidence in support of the variances. At the conclusion of the hearing, the OMB gave an oral decision allowing the appeal and approving all ten of the variances.
Jurisdiction and the Test to be Applied
[5] An appeal from a decision of the OMB is to the Divisional Court, with leave, but is limited to a question of law.[^1]
[6] The test on a motion for leave, relevant in this case, is twofold: first, there must be good reason to doubt the correctness of the order made; and, second, the matters involved in the appeal must be of such importance that, in the opinion of the judge hearing the motion, leave to appeal should be granted.[^2]
The Complaint
[7] The central concern on which the request for leave to appeal is based is that the reasons of the OMB were insufficient.
[8] Counsel for both Anatoli Plotkine and the Seidenfelds agree that it is not necessary for reasons of the OMB to review each of the concerns surrounding each of the variances. While, for a period of time, this appeared to be required[^3], more recent cases have taken a broader, less formalistic approach.[^4]
[9] It is in the context of this less stringent understanding of what is necessary that counsel for Anatoli Plotkine says that the reasons are insufficient. As she sees it, it is not possible to understand how the OMB arrived at its decision. The reasons do not demonstrate the OMB “grappled” with the issues it was required to consider. There is nothing to suggest that the OMB weighed the evidence. It simply accepted the evidence of the planner.
[10] I do not agree.
Analysis
[11] The content and substance of any decision needs to be measured against the nature and depth of the hearing or proceeding to which it responds. In this case, only one hour was required to place before the OMB the information and evidence from which its decision was drawn. Only two witnesses gave evidence: Anatoli Plotkine and the land use planner. The report of the planning staff of the City of Toronto was filed, but no witness was called to support it. No one was cross-examined as to the basis or validity of its comments.
[12] The land use planner explained why, in his opinion, the variances should be approved. For example, he pointed out if terraces, included in the proposal, were removed from consideration of length and lot coverage, these calculations would bring the house within the current by-law.[^5] To understand the true impact of the height of the proposed building, it should be measured from the centre of the public street to a point on the roof.[^6] The reduced side yard setback, adjacent to the property of Anatoli Plotkine, reflected the existing situation. The land use planner explained to the OMB that the current setback would remain unchanged.[^7] With respect to concerns about the protection of trees, the property is subject to the City of Toronto’s Municipal Code, Ravine & Natural Feature Protection. “In order for the proposal to proceed, the Applicants/Appellants will be required to obtain a ravine permit. Tree protection and planting conditions will be determined through the site plan and/or ravine permit application process.”[^8] The risk of flooding as a result of the reverse slope driveway can be dealt with through a design which complies with the Reverse Slope Driveway Guidelines and, in this way, protect the house from flooding in a 100-year storm.[^9]
[13] In order to show that the home would be compatible with the neighbourhood in which it was proposed to be built, the land use planner produced photographs of other houses in the area. In his opinion, “…large three-storey homes and integral below-grade garages are common in the area”.[^10] The application sought approvals that were similar to other permissions which have been granted in the area. The proposal was representative of the “regeneration form” taking place within the neighbourhood. “The build [sic] form, architectural design and siting of the dwelling is [sic] compatible with other homes in the immediate vicinity and the neighbourhood as a whole.”[^11]
[14] The land use planner provided his opinion:
[T]he proposal respects and reinforces the prevailing character of the neighbourhood and represents an appropriate and desirable manner in which to develop the property. The requested variances, which will facilitate the development proposal, will not create any unacceptable adverse impacts and are minor in nature.[^12]
He recommended approval of the variances, subject to certain conditions.[^13]
[15] With this uncontested evidence in hand, the OMB considered the objections of Anatoli Plotkine and satisfied itself that either they had not been demonstrated or were addressed.[^14] In general, the OMB determined that the intent of the Official Plan and the Zoning Bylaw was met:
[T]he development proposal is consistent with the principles of good land use planning. Based on the evidence, the Board is satisfied that the variances are minor in nature and will not adversely impact either the immediate property owners or the neighborhood. [^15]
[16] In this case, the OMB did what it was required to do. It considered the evidence that was presented during the hearing. It applied that evidence to the Official Plan and Zoning Bylaw. It accounted for each of the specific objections of Anatoli Plotkine[^16] and determined that the appeal should be allowed.
[17] The motion for leave to appeal is dismissed. The reasons more than comply with the requirements placed upon the OMB and, in any event, any shortcomings that may be present do not amount to an error of law.
[18] Counsel for the Seidenfelds raised a preliminary issue. It was submitted that, as a “participant” at the hearing conducted by the OMB, Anatoli Plotkine did not have the standing necessary to bring the motion for leave to appeal. Given that I have found that the motion is to be dismissed on its merits, there is no reason for me to go further and consider this objection. It was pointed out that there is no case dealing with this issue. It is a matter of first impression. Accordingly, it may be as well that I make some brief comment.
[19] A “participant” is not a “party”. It is a lesser role with fewer responsibilities. The Ontario Municipal Board Rules of Practice and Procedure defined “participant” as “… an individual group or corporation who wishes to make a statement to the Board at a time set for such statements but does not wish to participate fully throughout a hearing and may attend only part of a hearing.
[20] When a participant makes the statement prescribed, he, she or its representative takes an oath to tell the truth and is subject to cross-examination. Viewed in this context, a “participant” could be described as, or understood to be, a self-identified witness.
[21] As a rule, witnesses do not have the status or standing to commence an appeal of a proceeding at which they gave evidence. The circumstances are somewhat different in that a “participant” is, generally, someone with an interest in the outcome.
[22] Counsel for Anatoli Plotkine observed that the section providing the right to appeal is silent as to who has that right:
Subject to the provisions of Part IV, an appeal lies from the Board to the Divisional Court, with leave of the Divisional Court, on a question of law.[^17]
[23] This is to be contrasted to other sections, in other statutes, which specify who may bring an appeal:
Any party to a hearing before the Tribunal under this part may appeal from its decision or order on a question of law to the Divisional Court in accordance with the rules of court.[^18]
[Emphasis added]
[24] It is clear, and counsel for Anatoli Plotkine acknowledged that, the absence of any reference limiting those who may commence an appeal does not suggest that “any person” can do so.[^19] It follows that not everyone can seek leave to appeal a decision of the OMB.
[25] Counsel for the Seidenfelds points out the language used in the applicable section: “an appeal lies…” is the same as that which is found in the Courts of Justice Act[^20] at s. 19(1) (“An appeal lies to the Divisional Court from…”) and s. 6(1) (“An appeal lies to the Court of Appeal from…”). Given the understanding that only a person who was a party in the underlying proceeding can commence an appeal, under these sections to these courts, counsel for the Seidenfelds says that the words should be applied here, in the same way.
[26] I prefer the approach suggested by counsel for the Seidenfelds. Silence does not allow any person to launch an appeal. The section should not be interpreted to allow a participant to do so. To my mind, it cannot be that a person who comes to a hearing for a period of time and makes a presentation is, then, permitted to scour a decision he, she or it is unhappy with, looking for some error and then to re-enter the fray by launching an appeal, taking on the role of a party which was either not requested of, or not recognized by, the OMB.
[27] If I were required to do so, I would find that Anatoli Plotkine did not have the status to bring a motion seeking leave to appeal.
[28] The motion is dismissed.
[29] As agreed to by counsel, costs of $10,000 to be paid by the moving party to the responding party.
LEDERER J.
Released: 20140716
CITATION: Plotkine v. Seidenfeld, 2014 ONSC 4157
DIVISIONAL COURT FILE NO.: 172/14
DATE: 20140716
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ANATOLI PLOTKINE
Moving Party (Appellant)
– and –
ALLAN AND SUSAN SEIDENFELD
Responding Parties (Respondents)
JUDGMENT
LEDERER J.
Released: 20140716
[^1]: Ontario Municipal Board Act, R.S.O. 1990, c. O.28 s. 96(1).
[^2]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, at rule 62.02(4)(b).
[^3]: DeGasperis v. Toronto (City) Committee of Adjustment, 2005 CarswellOnt 2913 (Div. Ct.), at paras. 12-20, where among other things, the following is said:
…the Board was required to consider each variance sought and reach an opinion as to whether or not it, either alone or together with other variances sought, was desirable from a planning and public interest point of view.
[^4]: Toronto (City) v. 621 King Developments Ltd. (2011) 72 OMBR 16, where, at para. 34, the following is said:
There were nine minor variances before [the OMB]…It was not required to meticulously and formalistically set out each of the four tests for each of the nine minor variances.
And refer to Clifford v. Ontario (Attorney General) 2009 ONCA 670, 98 O.R. (3d) 210, at paras. 29-30 (C. A.); and, Simon v. Bowie 2010 CarswellOnt 10838, at para. 15 (Div. Ct.).
[^5]: Memorandum of Oral Decision Delivered on February 18, 2014: Appellant and Applicant Allan and Susan Seidenfeld, at para. 14, which says:
The building length and lot coverage calculation includes both the front and rear yard terraces. Put into context, in this case the lot coverage for the actual home amounts to 28.4% of the lot area; the balance (8.34%) relates strictly to the terraces. The inclusion of these terraces in the calculation of the building length has a similar effect.
[^6]: Ibid, at para. 13.
[^7]: Ibid , at paras. 18 and 25.
[^8]: Ibid, at paras. 16 and 17.
[^9]: Ibid, at para. 15, and the 100-year storm is the storm (or rainfall occurrence) which, on a statistical basis, is expected to occur once in every 100 years. In reality, it may occur again in a shorter period of time.
[^10]: Ibid, at para. 12.
[^11]: Ibid, at para. 19.
[^12]: Ibid, at para. 20.
[^13]: Ibid, at para. 21.
[^14]: Ibid, at paras. 24 and 25.
[^15]: Ibid, at para. 23,
[^16]: Ibid, at para. 25, where the following is said:
The north side yard setback is an existing situation and as such, Mr. Plotkine will be no worse off by the approval of the associated variance. The property is subject to [Ravine & Natural Feature Protection] and the Applicants/Appellants will be required to obtain a ravine permit. Any concerns about tree protection are expected to be addressed at the time of application. The concern about shadowing has not been substantiated, and there is no reason to believe that the foundation of his home be damaged.
[^17]: Ontario Municipal Board Act, R.S.O 1990, c. O. 28, s. 96.
[^18]: Environmental Protection Act, R.S.O. 1990, C.E. 19, s. 20.16(1); see also s. 34.
[^19]: The phrase "any person" is referred to 46 times in the Planning Act, R.S.O. 1990, Ch. P. 13, for example: sections 17(40) and 23(2) which refer, respectively, to an appeal being brought to the OMB where notice of a decision was not provided by an approval authority and where the Minister proposes to make an amendment to an official plan.
[^20]: R.S.O. 1990, c. C. 43.