CITATION: The Legislative Assembly of Ontario v. Avenue-Yorkville Developments Ltd., 2011 ONSC 258

DIVISIONAL COURT FILE NO.: 269/10

DATE: 20110112

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Harvison Young J.

BETWEEN:

THE LEGISLATIVE ASSEMBY OF ONTARIO

Appellant/Moving Party

– and –

AVENUE-YORKVILLE DEVELOPMENTS LTD. and THE CITY OF TORONTO

Respondents/Responding Parties

Orestes Pasparakis, Rahool P. Agarwal, for the Appellant/Moving Party

Chris Paliare, Michael Fenrick, for the Respondent, Avenue-Yorkville Developments Ltd.

Diana Dimmer, Stephen Bradley, for the Respondent, City of Toronto

HEARD at Toronto: November 18, 2010

HARVISON YOUNG J.

Introduction

[1] The moving party, the Legislative Assembly of Ontario (“LAO”), seeks leave to appeal the decision of the Ontario Municipal Board (“OMB”) that approved an application to authorize the demolition of the existing Four Seasons Hotel and the development of two residential towers at 21 Avenue Road in Toronto (“the Project”). LAO opposes the Project on the ground that it will interfere with the public’s view of the Legislative Building at Queen’s Park, which will undermine the structure’s prominence and its symbolic importance as the seat of Ontario’s democratic government.

[2] It is common ground that a decision of the OMB may be appealed to the Divisional Court on a question of law, with leave of the Divisional Court pursuant to s. 96(1) of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28. As this Court held in Spellman v. Essex (Town) (2003), 20 M.P.L.R. (4th) 280 (Ont. S.C. (Div. Ct.)), at para. 3, in order to grant leave the Divisional Court must determine that:

(a) the proposed appeal raises a question of law;

(b) there is reason to doubt the correctness of the decision; and

(c) the decision involves a point of law of sufficient importance to merit the attention of the Divisional Court.

[3] LAO submits that the OMB erred in law in its interpretation of the City of Toronto’s Official Plan (“Official Plan”) and, in particular, the University of Toronto Secondary Plan (“Secondary Plan”), and it submits that the proposed appeal involves interests of sufficient importance to merit the attention of the Divisional Court. For the reasons that follow, I have concluded that the moving party has failed to meet the above test and that, accordingly, leave to appeal must be denied.

(a) Does the proposed appeal raise a matter of law?

[4] The respondents Avenue-Yorkville Developments Ltd. (“Avenue-Yorkville”) and the City of Toronto submit that LAO cannot satisfy the first limb of the test because the proposed appeal is premised entirely on a factual conclusion that cannot be appealed to this Court, which is the OMB’s factual determination that “the most relevant view for the purposes of dealing with this matter” is “the postcard view immediately north of College Street”: see OMB Reasons, page 5.

[5] While this determination played an important role in the OMB decision, the interpretation of the Official Plan and the Secondary Plan were also significant. The OMB concluded that the Secondary Plan does not apply to the Project because the Project site is not within the defined University of Toronto Area. Although it was not necessary for the Board to proceed beyond this conclusion, it considered the LAO’s argument based on the application of the Secondary Plan and held that even if the Secondary Plan did apply to the Project, the protection the Secondary Plan affords to the views “within, at the edges of and into the University of Toronto area from the surrounding areas” would not impact the Project. This is because the most appropriate view under consideration is not “from the surrounding areas” but rather from within the area itself.

[6] As LAO submits, the proper interpretation and application of an Official Plan and the conformity of a proposed development with an Official Plan is a question of law: Toronto (City) v. 2059946 Ontario Ltd. (2007), 228 O.A.C. 143 (Div. Ct.), at para. 4. This appeal does raise issues concerning the proper interpretation and application of an Official Plan, particularly as far as the applicability of the Secondary Plan is concerned. While the appeal also raises other and related issues that might be characterized as issues of fact or mixed fact and law, I am satisfied that, for the purposes of this limb of the test, the proposed appeal raises issues of law.

(b) Is there reason to doubt the correctness of the decision?

[7] All parties agreed on the test to be applied in considering whether there is reason to doubt the correctness of the decision. In Toronto (City) v. Dorsay Investments et al., 2010 ONSC 3212, Sachs J. stated at para. 18:

In considering whether to grant leave there are two other important considerations to keep in mind. First, although the decision concerns a question of law and the test for the granting of leave is whether there is good reason to doubt the correctness of the decision, I am conscious that the question engages the policy expertise of the Board and involves the equivalent of their “home” statutes. As such, the Divisional Court owes deference to the Board’s decision and the decision would likely attract a standard of reasonableness on the appeal itself. Second, the “Board’s right to review decisions under s. 43 of the OMBA is broad and discretionary” (SmartCentres Inc. v. Toronto (City), 2009 CarswellOnt 7507, 63 O.M.B.R. 129 (S.C.) at para. 15).

[8] In this case, the issues before the OMB and the instruments that it was required to interpret engaged the core of the policy expertise of the Board. This is true whether the issues are characterized as issues of fact, law, or mixed fact and law. The Court, in asking whether there is reason to doubt the correctness of the Board’s decision, must be mindful of the fact that it owes deference to the Board insofar as the Board is engaged in its core areas of expertise.

[9] LAO argues that the Board has misinterpreted the provisions of the Official Plan and in particular the University of Toronto Secondary Plan. It focuses its submissions on three errors that it argues the Board made in relation to the interpretation and application of the Secondary Plan:

(I) the Board erred by ignoring the viewpoint specified in the Secondary Plan for the Legislative Building and by selecting the wrong view;

(II) the Board erred in restricting the application of the Secondary Plan to development located within the University of Toronto Area; and

(III) the Board erred by ignoring the references to the protection of the silhouette of the Legislative Building contained in the Secondary Plan and related planning documents.

(I) The Board erred by ignoring the viewpoint specified in the Secondary Plan for the Legislative Building and by selecting the wrong view

[10] The Board approached the present case by considering, first, what the appropriate view of the Legislative Building was from University Avenue, and, second, what effect the proposed development would have on this view from a planning perspective. The Board heard and reviewed considerable evidence on the subject. As the reasons for decision state, “[t]he simple fact of the matter is that the further south one is from the [Legislative Building] the greater the likelihood that any buildings in the background can be seen” (OMB Reasons, page 4). The respondent developer argued that the most appropriate viewpoint was from 60 metres north of College Street. LAO took the position that the most relevant views were approximately 80 metres south of College Street and perhaps even as far south as Queen Street. The City Planning staff took the position that the appropriate view was that from the north side of College Street within the University Avenue right of way. This is the view referred to as the “postcard view”. The Board accepted this view as the appropriate view and also found that the interruption of the silhouette of the Legislative Building caused by the proposed development would, from that viewpoint, be barely discernible.

[11] LAO now argues that the selection of this viewpoint was an error because it ignored the viewpoint identified as most appropriate by Map 20-4 of the University of Toronto Secondary Plan. LAO submits that “[b]y selecting a viewpoint on the north side of College Street, the OMB has understated and misapprehended the impact of the Proposed Development on the view of the Legislative Building” (Moving Party’s Factum, para. 23). LAO also argues that the Board erred in failing to address Policy 3.2 of the Secondary Plan in its reasons.

[12] I disagree with the appellant’s submissions on this issue. First, the Board did not ignore the Secondary Plan. The Board specifically considered the view identified by Map 20-4 at page 11 of its Reasons for Decision. Despite the fact that it had concluded that the Secondary Plan does not apply to the proposed development, the Board considered the reference to Map 20-4 contained in Policy 3.2.1 of the Secondary Plan, the relevant portion of which reads as follows:

The preservation and enhancement of the existing series of unique, important and memorable views within, at the edges of and into the University of Toronto Area from the surrounding areas as indicated on Map 20-4 will be encouraged through appropriate built form and landscape controls.

[13] In considering Map 20-4, the Board noted that on that map “the area north of College is within the University of Toronto Area and not outside. The College Street View is therefore not ‘from the surrounding areas’” (OMB Reasons, page 11).

[14] Second, and more fundamentally, I see no basis for doubting the correctness of the Board’s decision that the “postcard” view was the appropriate one, or for treating the issue as the first one to be considered. It is hard to imagine how the Board could have determined whether the silhouette of the Legislative Building would be interrupted and intruded upon by the Project without first determining what the appropriate view was. This was a largely factual determination, albeit one laden with policy considerations, and one which engages the policy expertise of the Board. The Board considered the evidence carefully and concluded that the postcard view was the appropriate one. There is no basis to doubt the correctness of this conclusion.

(II) The Board erred in restricting the application of the Secondary Plan to development located within the U of T Area

[15] Having determined that the postcard view is the appropriate viewpoint, the Board proceeded to consider the effect of the proposed development on that view from a planning perspective. Before turning to the question of the application of the Secondary Plan to the proposed development, the Board referred to the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”), the 2005 Provincial Policy Statement (“PPS”), the Ontario Planning Act, R.S.O. 1990, c. P.13 (“Planning Act”), and the City Official Plan, which includes the University of Toronto Secondary Plan.

[16] The Board noted that “[t]he site in question is located within an urban growth centre and within a major transit station area, both of which are defined as intensification areas by the Growth Plan”, and concluded that the proposal conforms to the Growth Plan (OMB Reasons, page 5).

[17] In considering the PPS, the Board addressed LAO’s argument that the proposal compromises the view of the Legislative Building from the south and that, as a result, the heritage values, attributes and integrity of the location would not be retained; the Project would thus come into conflict with Section 2.6.1. of the PPS, which provides that “[s]ignificant built heritage resources and significant cultural heritage landscapes shall be conserved”. The Board rejected this argument “not because the background to the view cannot be characterized as an attribute, but rather because the interruption of the silhouette [of the Legislative Building from the postcard viewpoint] is barely discernible” (OMB Reasons, page 6).

[18] The Board also considered LAO’s argument that the Legislative Building is a matter of provincial interest pursuant to s. 2(d) of the Planning Act. However, the Board held that LAO had not established that the view of the Legislative Building was a matter of provincial interest and that, even it it had done so, the proposal does not conflict with the provision and City Council had in any event considered s. 2(d) when the Project was approved.

[19] In turning to the City of Toronto Official Plan, the Board considered and rejected the argument that the proposal did not conform with Public Realm Policies 3.1.1.8, 3.1.1.9 and 3.1.1.10 or the Heritage Policies in 3.1.5.

[20] The Board noted that the proposed site is located in the Downtown area, which is an area where growth is designated to occur, and rejected LAO’s submission that these policies “underscore the need for insuring that no building should be even remotely perceptible in the viewshed of the [Legislative Building] looking in a northerly direction from University Avenue” (OMB Reasons, page 9).

[21] The OMB also noted the absence of any reference in these provisions to particular or designated views, and the Official Plan’s failure to make mention of private development and its potential impact on viewsheds of public buildings. In the Board’s view, this absence emphasizes the general lack of specificity in the Official Plan with respect to backdrops or silhouettes.

[22] The Board contrasted the Official Plan approach with the specificity found in Official Plan Amendment 98, which was enacted by City Council on December 7, 2009, and which deals with land on the west side of Avenue Road, directly across the street from the proposed site for the Project. When referring to the Institutional Precinct, being land between Madison Avenue and Avenue Road, this amendment is very specific, stating that development in the precinct would:

Respond to key views and locations, avoiding encroachment into the viewshed of significant buildings. In particular, no building will interrupt or rise above the silhouette of the Ontario Legislative Building at Queen’s Park, when viewed from University Avenue, subject to a view corridor analysis completed to the satisfaction of the City. [Emphasis added.]

[23] The Board considered this provision to be a significant indicator that “the City, when it chooses to do so, will not hesitate to implement height and view limitations on development to protect the [Legislative Building] silhouette”, but such limitations had not been adopted for the site of the Project in question (OMB Reasons, page 10).

[24] The Board then turned to consider the University of Toronto Secondary Plan, and concluded that the Secondary Plan does not apply to the subject site. In reaching this conclusion, the Board noted that the proposed site is not within the boundaries of the University of Toronto Area set out in section 1.1 and outlined on Map 20-1. The moving party, however, relied on wording contained in Section 3 of the Secondary Plan, which reads as follows:

This Section and Maps 20-2, 20-3 and 20-4 constitute a ‘Structure Plan’ which sets out the most important aspects of the built and landscaped environment that will be preserved, protected and enhanced in any development project in the University of Toronto Area. These maps also show how improvements could be made over time to enhance the identity, utility and ambiance of the Area. To permit development or in approving public works within or adjacent to the University of Toronto Area, the following structuring elements of the University of Toronto Area will be considered [Emphasis added.]

[25] LAO argued before the Board that the words “to permit development” must be read in concert with the phrase “within or adjacent to the University of Toronto Area”, and therefore the Secondary Plan applies to the Project, it being, in LAO’s submission, adjacent to the Area. The Board considered and rejected this argument on the basis that this submission was inconsistent with the clear and unambiguous language of Section 1.1 and also with the first sentence of Section 3.3, which reads “in the University of Toronto Area”. [Emphasis added.] The Board also noted that the words “conserved” and “adjacent” are not defined, so the Board accordingly took guidance from the definition of “adjacent lands” in the PPS. Noting that the proposed site is not contiguous to the Legislative Building, and is in fact almost one kilometre away, the Board found the site could not be considered “adjacent” to the Legislative Building in any event.

[26] The Board considered the moving party’s arguments and the applicable policies carefully. Its reasons are clear and carefully considered. There is, in my view, no reason to doubt the correctness of the Board’s conclusion that the Secondary Plan does not apply to the proposed development, particularly in light of the fact that the interpretation of the Secondary Plan and the other policy instruments considered engages the very heart of the Board’s expertise.

(III) The Board erred by ignoring the references to the protection of the silhouette of the Legislative Building contained in the Secondary Plan and related planning documents

[27] The moving party submits that the Board erred by ignoring Policy 3.2 of the Secondary Plan, which recognizes view protection from a distance. Policy 3.2.1 speaks of preserving certain “unique, important and memorable views” that are indicated on Map 20-4, which includes the Legislative Building as a Major View Terminus. Policy 3.2.1 reads:

The preservation and enhancement of the existing series of unique, important and memorable views within, at the edges of and into the University of Toronto Area from the surrounding areas as indicated on Map 20-4, will be encouraged though appropriate built form and landscape controls. [Emphasis added.]

[28] This submission must fail. First of all, the Board did not ignore Policy 3.2. Rather, it specifically considered the policies set out in section 3.2.1 that refer to the map identifying the Legislative Building as a view terminus. The Board did not find these policies to address the protection of the silhouette of the Legislative Building. Second, and as discussed above, the Board found that the Secondary Plan does not apply to the proposed development. Third, and as the respondent City of Toronto submits,

A structure that is a view terminus from a certain vantage point should be seen from that point. Such a designation might protect a structure from having an object placed between the vantage point and the view terminus. This does not mean that a viewer should not be able to see anything else in his view-shed that might be located behind or to the side of the view terminus. A view terminus would not be obstructed or interrupted if a structure is placed behind it or to the side of it (City of Toronto Factum, para. 35).

[29] As LAO stated during oral argument, its submissions focused on the Secondary Plan. The Board considered this argument and its reasons are clear and cogent for concluding that the Secondary Plan does not apply, as I have discussed above. Again, the Board considered the relevant policy instruments and there is no reason to doubt the correctness of its conclusions on this issue.

[30] In reaching the conclusion that there is no reason to doubt the correctness of the Board’s decision, I am mindful of the principle that Board decisions are to be read as a whole: see Supportive Housing Coalition of Metropolitan Toronto, Re (1993), 30 O.M.B.R. 136 (Div. Ct.), at para. 4. Read as a whole, it is clear that the Board considered the evidence before it along with the applicable network of law and policy before reaching its decision, which was clear, logical and cogent.

[31] The moving party urged the court to find that there is reason to doubt the correctness of the decision in that the issues that arise are open to “very serious debate”, citing McCutcheon v Westhill Redevelopment Co. (2008), 169 A.C.W.S. (3d) 665 (Ont. S.C. (Div. Ct.)).

[32] The question of law in issue in McCutcheon, however, was the OMB’s interpretation of the Consolidated Hearings Act, R.S.O. 1990, c. C.29, and Himel J. noted at para. 13 that while deference should generally be given to the OMB in keeping with its degree of independence and expertise, such deference is not owed where the OMB does not deal with the statute in question on a routine basis. Moreover, the questions of law in that case were ones that, in the view of the Court, were unresolved and open to debate.

[33] That is not the case here. To the extent that the moving party has raised issues of law, they are issues of law and policy with respect to which the Board is entitled to considerable deference. In addition, they involve a number of issues of fact (such as the determination of the appropriate view and the actual effect on that view that the proposed development would have). The Board gave careful reasons and was clearly alive to the issues raised by the moving party LAO.

[34] In summary, I am not satisfied that there is any reason to doubt the correctness of the Board’s decision

(c) Does the decision raise questions of sufficient importance to warrant the attention of the Divisional Court?

[35] LAO argues that the appeal raises issues of general importance to land use development for involving the interpretation and application of planning policies for land use in downtown Toronto. LAO also emphasizes the fact that “the appeal involves one of Canada’s most significant public institutions and the public view of the Legislative Building serves an important public function” (Moving Party’s Factum, para. 68).

[36] However, having found that there is no reason to doubt the correctness of the decision, the general importance of the issues will not in itself suffice to justify granting leave to appeal: see Toronto Transit Commission v. Toronto (City) (1990), 42 O.A.C. 20 (Div. Ct.), at paras. 8-14; Toronto (City) v. Romlek Enterprises (2008), 241 O.A.C. 378 (Div. Ct.), at para. 7; and Neebing (Municipality) v. Dale (2003), 126 A.C.W.S. (3d) 333 (Ont. S.C. (Div. Ct.)), at paras. 11-12.

[37] Further, the importance of the building does not, in itself, render the legal issues of significant importance to justify granting leave to appeal. Rather, the legal issues raised must be of sufficient importance to justify the granting of leave.

Conclusion

[38] For the foregoing reasons, the application for leave and the appeal are dismissed.

[39] At the end of the hearing, the parties made submissions as to costs. The moving party is ordered to pay costs to the respondent City of Toronto in the amount of $7,500, and costs to the respondent Avenue-Yorkville Developments Ltd. in the amount of $12,500.

Harvison Young J.

Released: January 12, 2011

CITATION: The Legislative Assembly of Ontario v. Avenue-Yorkville Developments Ltd., 2011 ONSC 258

DIVISIONAL COURT FILE NO.: 269/10

DATE: 20110112

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

HARVISON YOUNG J.

BETWEEN:

THE LEGISLATIVE ASSEMBY OF ONTARIO

Appellant/Moving Party

– and –

AVENUE-YORKVILLE DEVELOPMENTS LTD. and THE CITY OF TORONTO

Respondents/Responding Parties

REASONS FOR JUDGMENT

Harvison Young J.

Released: January 12, 2011