Court File and Parties

CITATION: ADMNS Kelvingrove Investment Corporation v. Toronto (City), 2009 ONCA 275

DATE: 20090402

DOCKET: C49960

COURT OF APPEAL FOR ONTARIO

MacPherson, Sharpe and Rouleau JJ.A.

BETWEEN:

ADMNS Kelvingrove Investment Corporation

Applicant (Appellant)

and

The Corporation of the City of Toronto

Respondent (Respondent)

Counsel:

Ken Prehogan, for the appellant

A. Weretelnyk and K. Frank, for the respondent

Heard and released orally: April 1, 2009

On appeal from the judgment of Justice Belobaba of the Superior Court of Justice, dated January 20, 2009.

ENDORSEMENT

[1] The appellant, ADMNS Kelvingrove Investment Corporation, appeals the judgment of Belobaba J. dated January 20, 2009 dismissing its application for a declaration that the City Council of the respondent, the Corporation of the City of Toronto, is deemed to have consented to the demolition of three apartment buildings that have been identified by the City for designation as heritage buildings.

[2] The appellant’s principal argument before the application judge was that City Council did not deal with its application for a demolition permit within the 90-day period prescribed by s. 34(2) of the Ontario Heritage Act, R.S.O. 1990, c. O-18, and is, therefore, deemed to have consented to the application, pursuant to s. 34(4) of the OHA.

[3] The application judge rejected this argument on the basis that the qualification to the 90-day period set out in s. 34(2) – “within such longer period as is agreed upon by the owner and the council” – had been established, thus extending the period to the date on which City Council rendered its decision denying the application (about 13 days outside the 90-day period).

[4] On appeal, the appellant contends that the application judge made a palpable and overriding error by concluding that the parties had agreed to an extension of time.

[5] We disagree. The application judge’s conclusion on this point is, as the appellant acknowledges, entitled to substantial deference. The application judge carefully reviewed the record, especially the communications to City officials from the appellant’s representative and concluded that “the property-owner through its agent was prepared to give the City the time it needed for its considerations and agreed to wait for the October 29 decision.” In our view, on the basis of the record, this conclusion was an eminently reasonable one.

[6] Simply put, the appellant was not insisting upon compliance with the 90-day deadline. As the application judge found the appellant was in effect saying to the City “one, we’re not holding you to the 90-day time period; two, we are willing to wait for your decision; and three, please let us know when you’ll be making your decision.” Having taken that position, it does not lie in the mouth of the appellant to insist upon observance of the 90-day deadline after it was missed and the City acted in reliance on the position taken by the appellant.

[7] The appeal is dismissed. Costs to the respondent fixed at $13,000 including costs and disbursements.

“J.C. MacPherson J.A.”

“Robert J. Sharpe J.A.”

“Paul Rouleau J.A.”