COURT FILE NO.: 64/09
DATE: 20090331
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: Carolyn liddy v. city of Vaughan (committee of adjustment) & ANNA MAURO
BEFORE: Justice Denise Bellamy
COUNSEL: Eric K. Gillespie, for the applicant
Emilio Bisceglia, for the respondent, Anna Mauro
HEARD AT TORONTO: March 31, 2009
E N D O R S E M E N T
Bellamy, J.
[1] The applicant is seeking a stay of the Ontario Municipal Board (OMB) hearing scheduled for April 1 and 2, 2009 until such time as her application for judicial review is determined. The judicial review is set for June 5, 2009. The City of Vaughan is aware of the application but did not appear and takes no position. On consent, Ms. Anna Mauro, is added as a respondent party.
[2] The hearing before the OMB is an appeal of a decision of the City of Vaughan Committee of Adjustment which granted four minor variances to Anna Mauro, whose property abuts that of the applicant.
[3] There is urgency to this stay application because the OMB hearing is set to start tomorrow morning.
[4] The applicant must show that (a) the application raises a serious question; (b) irreparable harm will result if the stay is not granted; and (c) the balance of convenience favours the granting of a stay: RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] S.C.J. No. 17. These three requirements are interrelated, but the overarching consideration is whether the interests of justice call for a stay: Longley v. Canada (Attorney General), 2007 ONCA 149, [2007] O.J. 929 at paras. 14 and 15.
[5] The threshold for satisfying the first element of the test for a stay is a low one, and I must bear in mind the directive of the Supreme Court of Canada in RJR-MacDonald that “a prolonged examination of the merits is generally neither necessary nor desirable” (para. 50). On a preliminary assessment of the case, I am prepared to accept that the applicant has met the first element. A decision made in camera with the City’s planner in attendance for part of the deliberation passes the first test for a stay.
[6] The second element of RJR-MacDonald requires that I determine whether the applicant would suffer irreparable harm if the application were refused. I do not believe the applicant has demonstrated that irreparable harm will result if the OMB hearing proceeds tomorrow.
[7] First, it is not accurate, as the applicant states, that the onus at the hearing will now be “completely reversed,” and that she will have the onus of establishing that the decision of the Committee of Adjustment was incorrect. The OMB hearing is a hearing de novo and the recent changes to the Planning Act do not change the onus: McCue v. West Lincoln (Town), OMB File No. PL080609 (September 15, 2008); Tseng v. City of Toronto, OMB File No. PL071170 (December 10, 2008). The onus will remain on the respondent, Mauro, throughout, even though the approval authority granted the application: Brayman v. Kawartha Lakes (City), [2004] O.M.B.D. No. 712; Iafelice v. Ottawa (City) OMB File No. R060102 (October 31, 2006); MacCormack v. Oakville (Town), OMB File No. V060029 (April 16, 2007). As the OMB stated in 958049 Ontario Ltd. v. Hamilton (City), [2007] O.M.B.D. No. 1210 at para. 17:
Appeals before the Board are hearings de novo and the Board must hear the evidence in favour and in opposition with fresh eyes and ears and judge the veracity of the evidence accordingly. The assumption of [the property owner who supported the decision of the Committee of Adjustment] that the decision of the Committee of Adjustment has weight is incorrect in terms of the law.
[8] Second, the hearing before the Committee of Adjustment took place in less than thirty minutes whereas the hearing before the OMB is set for two full days. There will be ample opportunity before the OMB for the applicant to ensure her position is heard and is dealt with fairly. Indeed, she will be in a better position before the OMB than she was before the Committee of Adjustment, as she will have more time to present her case and all the evidence will be heard in public. As well, any defects in the process leading to the OMB hearing is effectively cured by the proceedings before the Board: Starstroke Developments Inc. v. Durham (Regional Municipality), [1998] O.R. No. 3587 (Div.Ct.).
[9] Finally, the applicant’s concern about “erasing the effects of an OMB ruling” on any possible rehearing at the Committee of Adjustment is purely speculative.
[10] The third part of the test in RJR-MacDonald requires that I determine the balance of convenience by assessing which of the parties would suffer greater harm from the refusal of a stay pending a decision on the merits.
[11] The greater harm, in my view, would be in not proceeding with the OMB hearing tomorrow. There, the applicant will have an opportunity to have a hearing de novo before a Board that has the expertise and the statutory authority to make a proper determination as to whether the minor variance application ought to be accepted based on the principles of the Planning Act. At the same time, the respondent, Mauro, will be provided with an expedient method to have the application decided on the merits. Otherwise, she will be substantially delayed in having the matter finally resolved, will still not be able to complete any further alterations that may need to be done to the shed, and will incur unnecessary fees. Her supporting affidavit indicates that the legal fees incurred to date “far exceed the costs of the shed/accessory structures.”
[12] One should not lose sight of the fact that the City of Vaughan had provided Ms. Mauro a permit for construction. After the shed and rear yard structures had been built, and through no fault of hers, the City subsequently decided that it had made an error and that some minor variances would be required in relation to the construction of the shed and the accessory structures. Since then, she has been caught up in these complications.
[13] The applicant agrees that there would need to be some special circumstances before this court would adjudicate on the matter in advance of the OMB having the opportunity to do so. In my view, the interests of justice do not call for a stay. The applicant has failed to demonstrate that special circumstances warrant staying the hearing instead of allowing her to proceed with her alternative remedy at the OMB. The applicant should first utilize her administrative law rights available at the OMB before proceeding to this court: Re Williams and Board of Directors of Kemptville District Hospital, [1986] O.J. No. 688 (H.C.); Re Forget [2001] O.J. No. 2518 (Div.Ct.). This is especially so, given that the appeal procedure, despite recent changes to the Planning Act, provides for a hearing de novo. I note parenthetically that the applicant has never applied to the OMB for an adjournment of the hearing.
[14] The application is dismissed. On consent, costs are reserved to the panel hearing the judicial review.
[15] I am grateful to counsel for their co-operation and their comprehensive submissions.
Bellamy J.
DATE: March 31, 2009