Citation: Chan v. Fazaeli, 2010 ONSC 3432
DIVISIONAL COURT FILE NO.: 31/10
DATE: 20100610
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
HUE SUN CHAN and DAVID YEE Applicants (Appellants)
– and –
FATEMEH FAZAELI Respondent (Respondent in Appeal)
Michael Melling and Amber Stewart, for the Applicants
Alan B. Dryer and O. Kahane-Rapport, for the Respondent
Brendan O’Callaghan, for the City of Toronto
HEARD at Toronto: June 10, 2010
ORAL REASONS FOR JUDGMENT
JENNINGS J. (orally)
[1] The moving parties seek leave to appeal from the original decision of the Ontario Municipal Board dated August 7, 2009, and the review decision dated December 23, 2009, the latter of which refused a request to review the original decision.
[2] Pursuant to s. 96(1) of the Ontario Municipal Board Act, an appeal lies from the Board to the Divisional Court on a question of law. In order to obtain leave, the moving parties must persuade me that:
(a) There is good reason to doubt the correctness of the decision, and
(b) The question of law is sufficiently important to warrant the attention of the Divisional Court.
[3] The first branch of the test is met if I find not that the decision is wrong or even probably wrong, but that its correctness is open to serious debate.
[4] The second branch is met if the matter is relevant to the development of the law and the administration of justice. It can however be important only to the litigants. (See Radial Investments Ltd. v. Dunpar Developments Inc. (2008) 42 M.P.L.R. (4th) at 320).
[5] The moving parties’ motion for leave to appeal the original decision was filed in a timely fashion but was abandoned in the face of a threat to move before the Registrar for dismissal for delay. It was abandoned so as to permit the request for a review by the Board to proceed to a decision. The notice for leave to appeal from the review decision was timely. The responding party attacks the leave application from the original decision as being out of time.
[6] Frankly, I do not see how that relatively brief review decision can be reviewed by the Court without considering the alleged errors in the original decision. (See Essex (City) v. Material Handling (2003) 6 O.R. 4619 (Div. Ct.)).
[7] However, if leave to bring the leave motion from the original decision is required, I grant it. I am satisfied that:
(a) A fixed intention to appeal has been demonstrated throughout;
(b) The explanation for any delay is reasonable; and
(c) The responding parties have suffered no prejudice.
[8] The Board clearly erred in its original decision in holding that the proposed development would not create a key lot. Not only was that finding wrong but there is good reason to doubt that there was any evidentiary foundation for it. The Board relied on the evidence it thought had been given by the planner for the responding party. The sworn statements before the Review Board from the planners for the City and for the moving parties filed on the application for review, dispute that the responding party’s planner ever gave the evidence the Board found that he did. More significantly no material was filed by the responding parties to refute the evidence given by the planner for the City and for the moving party or to challenge the evidence that a key lot was created.
[9] The Board’s approval of the applications given that it created a key lot, effectively down-zoned No. 180 Norton, the property of Mr. Chan. There was no application to rezone that lot before the Board and absent such an application I have serious doubts as to the Board’s jurisdiction to make an order to change the zoning of the property of an owner who is not a party to the application before the Board.
[10] The Board’s jurisdiction to change zoning only comes from applying the process outlined in the Planning Act.
[11] The responding party submits that the first decision was correct in that the effect of the decision does not change the legal status of 180 Norton. That submission seems to me to be contrary to the sworn and uncontradicted evidence in paragraphs 17 & 18 of planner Spears’ Affidavit (Record Tab 5(c)).
[12] The respondent further submits, as I understand it, that any change in the zoning will only have effect in the future if the owner of No. 180 seeks to add to or otherwise alter the structure presently on the property. That does not, in my opinion, address the question of a lack of jurisdiction to change the zoning.
[13] The review decision recognized the error of the original decision in failing to find that 180 Norton would become a key lot. However, in my opinion, the review decision appeared to compound the error made in the first decision by considering the impact of the decision on 180 Norton, rather than the question of the Board’s jurisdiction to make the order affecting 180 Norton in the first place. That seems to have led the Board on the review application to have regard only to Rule 115.01(c) in denying review, ignoring the argument and submissions under Rule 115.01(a), that the original Board acted outside its jurisdiction. That, in my opinion, is an error in law and I have reason to doubt the correctness of the review Board’s decision on that ground.
[14] For a Tribunal to act outside its jurisdiction is almost always a matter of importance. In this case I accept the City’s submission that the consequences of the Board changing zoning without following the procedures in s.34 of the Planning Act will be of enormous significance to all municipalities.
[15] To conclude, I have serious doubts about the correctness of the two decisions on the jurisdiction issue. That is a question of law. The issue is sufficiently important in my opinion to be considered by the full panel of this Court. I grant leave to appeal to the full panel on the following questions:
(i) Did the Board and the review panel exceed their jurisdiction by approving the applications which had the effect of down-zoning 180 Norton because a re-zoning application for 180 Norton was not the subject of the appeals before the Board?
(ii) If the answer to (i) is yes, should the original decision and the review decision be quashed?
[16] Costs of the motion reserved to the panel.
JENNINGS J.
Date of Reasons for Judgment: June 10, 2010
Date of Release: June 11, 2010
CITATION: Chan v. Fazaeli, 2010 ONSC 3432
DIVISIONAL COURT FILE NO.: 31/10
DATE: 20100610
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
HUE SUN CHAN and DAVID YEE Applicants (Appellants)
– and –
FATEMEH FAZAELI Respondent (Respondent in Appeal)
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: June 10, 2010
Date of Release: June 11, 2010