CITATION: Toronto (City) v. 621 King Developments Ltd., 2011 ONSC 7047
DIVISIONAL COURT FILE NO.: 107/11
DATE: December 7, 2011
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ACJ CUNNINGHAM, PARDU, MULLIGAN JJ
BETWEEN:
CITY OF TORONTO
Appellant
– and –
621 KING DEVELOPMENTS LTD.
Respondent
B.O’ Callaghan and J. Braun, for the Appellant
C.G. Paliare and R. Stephenson, for the Respondent
HEARD: October 27, 2011
REASONS FOR DECISION
MULLIGAN, J.
[1] The City of Toronto (“the City”) appeals from the decision of the Ontario Municipal Board (“the Board”) dated February 16, 2011 (“the decision”) permitting nine minor variances for a development on vacant land at 621 King Street East, Toronto owned by 621 King Developments Ltd. (“621 King”).
[2] For the reasons that follow, I would dismiss the appeal.
[3] The Board approved nine minor variances to enable 621 King to construct a two tower eleven storey development with the first two floors for commercial use and the balance for residential units. The Board’s decision reversed an earlier decision of the City’s Committee of Adjustment denying the minor variance applications. The site in question, now vacant, was previously occupied by a motor hotel.
[4] The appeal is brought pursuant to section 96(1) of the Ontario Municipal Board Act R.S.O. 1990, c. O.28 (“the OMB Act”) which provides for an appeal from an order of the Board to this court with leave on a question of law. Leave was granted by J. Wilson, J. whose reasons are reported at 2011 ONSC 3007. Leave was granted on the following questions concerning the Board’s interpretation and application of section 45 of the Planning Act R.S.O. 1990 c. P.13 (“the Planning Act”):
i. Did the Board err in law by failing to conduct an independent analysis of each of the four tests of section 45(1) of the Planning Act for all of the contested minor variances under appeal?
ii. Did the Board err in law by relying on irrelevant factors that do not form part of the minor variance test?
iii. Did the Board err in law by reversing the onus in a minor variance appeal by placing the evidentiary burden on the party opposing the variances rather than on the party supporting the variances?
BACKGROUND FACTS
[5] The background facts are summarized in considerable detail in paragraphs 9 to 22 of the decision of J. Wilson, J. By way of brief summary the site is governed by a number of planning documents including the City’s Official Plan, its secondary plan known as the King – Spadina Secondary Plan and a City of Toronto Zoning By-law. The site is also governed by the King – Spadina Urban Design Guidelines which has its goal preserving heritage buildings in this area. In connection with its proposal, 621 King sought nine minor variances from the City of Toronto’s Committee of Adjustment. In its decision of October 6, 2010 the Committee of Adjustment refused to grant the minor variances.
[6] The Board conducted a hearing de novo over a two-day period and heard evidence from expert witnesses for both sides. At that hearing the City did not oppose three of the nine requested minor variances.
[7] The City’s by-law in force at the time did not include density restrictions but did include height and set-back requirements in addition to angular plane limitations on buildings on the south side of King Street. The King – Spadina Urban Design Guidelines previously mentioned allowed increased building height if the proposal was part of a conservation, restoration, and maintenance of a heritage building. No heritage building was part of this development proposal as the site was vacant at the time of the application.
[8] It is not disputed that this is an area undergoing significant revitalization. This revitalization has been encouraged by policies in the Zoning By-law designating this area as a “reinvestment area” and the City’s Official Plan which designates this area as a “regeneration area”.
STANDARD OF REVIEW
[9] Both parties acknowledge that the appropriate standard of review to be applied to the Board decision is reasonableness. The definition of reasonableness in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 bears repeating. As the Court stated at para. 47:
Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals cannot lend themselves to one specific, particular result. Instead, they give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[10] Before reviewing the position of the parties with respect to the three key issues identified in the leave to appeal decision it is useful to review judicial authorities with respect to the level of deference that ought to be accorded to a specialized tribunal interpreting and applying its home statutes. The authorities provide context for this court’s interpretation of whether or not the decision of the Board is reasonable within the context of its analysis of the applicable principles and its articulation of that analysis in its reasons.
[11] With respect to the issue of deference toward a specialized tribunal the Supreme Court of Canada provided the following guidance in Dunsmuir (supra) at para 48:
[D]eference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. The notion of deference “is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers”. We agree with David Dyzenhaus where he states that the concept of “deference as respect” requires the courts “not submission but a respectful attention to the reasons offered or which could be offered in support of a decision”. [citations omitted]
[12] With respect to the Board’s expertise in interpreting its home statutes Matlow J. noted in Vincent v. DeGasperis, [2005] O.J. No. 2890 (Div.Ct.) at para. 30:
In the case at bar, however, the Planning Act is the Board’s home statute and there is good reason to presume that the Board does have “unique experience interpreting it” in relation to the provisions dealing with minor variances.
[13] As Sachs J. noted in Dorsay Investments Ltd. v. Toronto (City) 2010 ONSC 3212 at para. 18:
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.
[14] The importance of reasons that are transparent was reviewed in Clifford v. Ontario (Attorney General) 2009 ONCA 670. As Gouge J.A. stated at para. 29:
The basis of the decision must be explained and this explanation must be logically linked to the decision made. This does not require that the tribunal refer to every piece of evidence or set out every finding or conclusion in the process of arriving at the decision. To paraphrase for the administrative law context what the court says in M.(R.E.) at para 24, the “path” taken by the tribunal to reach its decision must be clear from the reasons read in the context of the proceeding, but it is not necessary that the tribunal describe every landmark along the way.
[15] It is clear that if the Board fails to give adequate reasons for the conclusions reached its decision may be struck down. As Swinton J. noted in Toronto (City) v. Romlek Enterprises, [2009] O.J. No. 2232 (Div.Ct.) at para. 47:
In the present case, the Board failed to give reasons explaining why the variances granted were properly considered minor.
[16] The Planning Act sets out a four part test as to whether or not a variance can be considered minor. As Matlow J. stated in Vincent v. DeGasperis (2005) [2005] O.J. No. 2890 (Div.Ct.) at para. 9:
An application for a minor variance must meet what is often referred to as the four part test mandated by the Act. To satisfy the requirements of the test a variance must:
be a minor variance;
be desirable, in the opinion of the Committee, for the appropriate development or use of the land, building or structure;
maintain, in the opinion of the Committee, the general intent and purpose of the zoning by-law; and
maintain, in the opinion of the Committee, the general intent and purpose of the official plan.
[17] In DeGasperis Matlow J. went on to say at para. 13:
Accordingly, in my view, the Board was required, at the outset to examine each variance sought and to determine whether or not, with respect to both size and importance, which includes impact, it was minor.
[18] But in the words of Gouge J.A. in Clifford: “It is not necessary that the tribunal describe every landmark along the way”.
[19] As Harvison Young J. set out in Simon v. Bowie 2010 ONSC 5989 (Div.Ct.) at para. 15:
I do not agree that De Gasperis, (supra), requires that each test be applied entirely separately and formalistically as asserted by Mr. Wood. It is sufficient if the reasons make it clear that the Board applied the correct test substantively, taking the appropriate factors into consideration, and that it considered the evidence properly. In my view, the Board’s reasons meet these requirements.
[20] In North Barrie Plaza Ltd. v. 1729981 Ontario Ltd. 2010 ONSC 3825 McIsaac J., in an application for leave to appeal a minor variance decision, made reference to the same quotation of Gouge J.A. in Clifford. On the facts before him, McIsaac J. concluded at para 18:
I am satisfied that these reasons [of the Board] conform with the need for “careful and detailed analysis”. They tell the applicant and the respondent and, indeed any reader how the Board member got from “a” to “b”. It was not necessary to articulate every “landmark along the way”.
[21] It is clear that the definition of a minor variance has not been precisely defined. As Robins J. stated in McNamara Corp. v. Colekin Investments Ltd. (1977), 15 O.R. (2d) 718 (Div.Ct.) at para. 8:
The legislature by section 42(1) confided to committees of adjustment and ultimately to the Municipal Board the authority to allow “minor variances”. This statute does not define these words and their exact scope is likely incapable of being prescribed. The term is a relative one and should be flexibly applied… It is for the committee and, in event of an appeal, the Board to determine the extent to which a by-law provision may be relaxed and a variance still classed as “minor”.
[22] In Supportive Housing Coalition of Metropolitan Toronto Re, 1993 CarswellOnt. 5200 (Div.Ct.) Montgomery J. provided the following guidance:
It is not good enough to pick out pieces of the decision of a tribunal or court and hold them up to a magnifying glass and contend that, within a sentence or two or a paragraph, it is crystal clear that there has been an error. The court must read the totality of a decision and weigh it according to the appropriate test.
THE BOARD’S DECISION
[23] After a two day hearing involving expert evidence from both 621 King and the City the Board reserved its decision and issued written reasons. In its conclusions the Board stated at page 16:
[T]he Board accepts as persuasive that the proposed variances meet all four tests for minor variance and should be approved. The general intent and purpose of the City’s Official Plan and Zoning By-law are maintained, the proposal is desirable for the appropriate development of the subject site by balancing a diverse range of planning considerations and issues in a dense, intensifying and revitalizing urban context and represents good planning. Finally, the variances are minor and do not create unacceptable impacts on the surrounding properties or on King Street.
[24] In its decision the Board acknowledged the heritage character of the area as well as the significant revitalizing and regenerating pattern of recent developments in the area. To give context to its decision the Board stated at para. 13:
The area is not simply home to examples of old-style buildings and heritage buildings. It is also replete with examples of city-approved condominium developments that exceed the zoning standards of the area and these two cannot be simply set aside for in the Board’s view, they form an integral part of the character of this area.
[25] In its written decision the Board informed itself of the nine minor variances being proposed and provided a description of the site and the proposed development.
[26] The Board reviewed the planning instruments including the Official Plan and the King – Spadina Secondary Plan and the evidence of the expert witnesses. The Board also noted its own experience and stated at page 4:
Like the City’s Committee of Adjustment, the Board has considerable experience with the planning context of the area and in assessing the merits of numerous development applications for this area in the context of the relevant planning documents.
[27] The Board continued at page 5:
Given the Board’s historical familiarity with the area and its expertise interpreting the planning documents in accordance with the requirements of the Planning Act, the Board reviewed the planning evidence of both Parties and determines that there is nothing in the details of the proposed development or in the variances sought that depart in any meaningful way from the planning context of the existing build form, the neighbourhood or its character.
[28] The Board noted that there were nearly 30 examples of approvals for similar developments in the area where minor variances had been granted by the Committee of Adjustment or the Board.
[29] The Board also noted that the applicant before it, Freed Developments [the owner of 521 King], was a significant player in the revitalization of the King – Spadina area. The Board noted: “the Freed projects co-exist without causing undue impacts on surrounding properties and streets”. However, the Board cautioned itself at page 7:
The Board does not suggest that the developer’s previous successes in revitalizing the King – Spadina neighbourhood should serve as a precedent for some automatic approval of this development.
[30] At page 7 the Board acknowledged the context of this development and noted that the City had approved “new, tall and taller buildings” in the surrounding area. The Board indicated that its approval of the minor variances was based on several factors. After commenting on similar designs already approved for the area, the Board continued at page 7:
And, the Board’s in-depth reading of the planning documents, consideration of the expert witnesses’ testimony and its assessment of the test for these minor variances lead the Board to determine that there has been a consistent pattern of approvals for revitalizing and regenerating this quadrant of the City in the very manner and build form that the applicant proposes through this design.
[31] With respect to the four tests to be considered with respect to minor variances the Board began its discussion by stating:
In considering the four tests for a minor variance as set out in section 45(1) of the Planning Act, the Board considers the planners’ and urban designer’s opinions in the context of the Official Plan, policies and Zoning By-law standards.
[32] I now turn to a consideration of the three questions under appeal.
i. Did the Board fail to conduct an independent analysis of each of the four tests of section 45(1) of the Planning Act for each of the contested minor variances under appeal?
[33] With respect to this question the City’s position is succinctly stated at para. 30 of its factum:
The Board erred in law by failing to conduct an independent analysis of each of the four tests of section 45(1) of the Planning Act for all of the contested minor variances under appeal in three ways:
(a) the Board failed to consider the relevant Official Plan policies and accordingly erred in its understanding of how other developments in the area should influence the Decision;
(b) the Board erred in rendering a decision which lacks sufficient detail and transparency;
(c) the Board erred in relying on the Developer’s witnesses’ interpretation of the relevant planning instruments rather than conducting its own independent analysis.
[34] In my view no error of law was committed by the Board. There were nine minor variances before it. However, the parties defined very narrowly the single issue before the Board. As the Board stated in its reasons at page 4: “[T]he applicant agreed with the City’s opening statement that this hearing is ‘all about built form and compatibility with the historic character of the area’”. Given the narrow issue presented by the parties, the Board was not obliged to expand at length upon other issues. It was not required to meticulously and formalistically set out each of the four tests for each of the nine minor variances. In the context of this large development, the expert evidence the Board heard from both sides, and its own expertise and experience in this area, the Board set out what was reasonably necessary to provide a pathway to its conclusion. The Board is a specialized tribunal empowered by the legislature to conduct a hearing de novo on appeals of minor variance applications. In its decision the Board noted both its historical familiarity with the area and its expertise in interpreting the planning documents. The Board was obliged to weigh the expert evidence presented to it. It gave logical reasons for preferring the evidence of one expert over the other, and it did not err in so doing. In my view the decision provides more than adequate detail and transparency, especially when measured against the standard of reasonableness.
ii. The Board in erred in law by relying on irrelevant factors that do not form part of the minor variance test in three ways.
[35] The City’s objection is captured in para. 53 of its factum:
The Board relied on the following irrelevant factors in rendering its decision which the City submits is contrary to the statutory test and is clearly unreasonable.
(a) the Board erred in confusing the actions of the Committee of Adjustment with the actions of City Council in respect of the approval of other developments in the area and then placing weight on those alleged actions;
(b) the Board erred in penalizing the City in the conduct of its case by placing little weight on the evidence of the City’s two witnesses because of the Board’s mistaken belief that City Council had approved other developments in the area; and
(c) the Board erred in placing undue or any reliance upon the identity of the developer in its development history.
[36] Paragraph (a) refers to the suggestion that City Council somehow approved other developments. The Board’s decision makes it clear that there were close to 30 other developments approved in the area. The vast majority of these approvals for minor variances were as a result of decisions of the City’s Committee of Adjustment. A few were based on decisions of the Board on appeal from the Committee of Adjustment. Committees of Adjustment are independent bodies established by municipalities. They have an independent function with respect to minor variances. Their approval does not denote approval by the municipality. A municipality is free to appeal the decision of its own Committee of Adjustment, in fact that is what happened here. When a municipality chooses not to appeal the decision of its own Committee of Adjustment it foregoes its right to challenge the decision before the Board. Logically then, a municipality gives tacit approval to a decision of the Committee of Adjustment by not appealing. By inference the Committee’s decision is seen as one that has the approval of council. Given the specialized power of the Board, its experience in this area, and its clear understanding of its “home” statutes, I have no hesitation in finding that there was no confusion by the Board with respect to this issue.
[37] With respect to paragraph (b), based on the same analysis, the Board made no mistake as to the approval of City Council and therefore the Board did not penalize the City.
[38] The Board noted the developer’s role in regenerating and revitalizing this area and its successes with respect to other developments. However, the Board specifically cautioned itself by stating:
The Board does not suggest that the developer’s previous successes in revitalizing the King – Spadina neighbourhood should serve as a precedent for some automatic approval of this development. Far from it, and the Board has evaluated this proposal in the context of the specific urban design details and planning evidence before it.
[39] I am satisfied that the Board looked to the developer’s history of the revitalization of this area in context. It did not attribute undue weight to this factor.
iii. The Board erred in law by reversing the onus in a minor variance appeal and placing it on the party opposing the variances rather than the party making the application for the variances.
[40] The City’s submission with respect to this issue is captured at paragraphs 68 and 69 of its factum:
The law regarding the onus of proof in a section 45(1) appeal to the Ontario Municipal Board is clear and well-established. The onus is on the applicant in the development proposal to satisfy the Board that the four tests are met. In this instance, the Board appears to have ignored the well-established onus on the developer and suggests instead that it is up to the City to demonstrate why the proposed development would not fit into the King – Spadina neighbourhood.
[41] Reading the decision as a whole, and in the context of the two-day hearing involving expert witnesses from both the developer and the City, I am not satisfied that the Board reversed the onus of proof. The submission of the respondent in its factum at para. 63 is instructive:
Finally, the Board did not reverse the legal onus. It may be that, once 621 King had adduced evidence that the Minor Variances should be approved, the evidentiary or persuasive burden shifted to the City. But this is not the same as the Board shifting the legal onus to the City. The Board did not make its decision on the basis that the City had a legal onus to discharge and failed to do it. The Board’s decision was based upon its review of the evidence as a whole, and its conclusion that the evidence revealed that the proposed variances were minor.
[42] The Board is a specialized tribunal given legislative power to conduct hearings de novo with respect to minor variance appeals from Committees of Adjustment. Minor variance hearings are the daily fare of the Board. In my view the Board has not reversed the legal onus.
[43] The City’s appeal is dismissed.
COSTS
[44] The parties agree that costs should be fixed at $17,500 for the successful party. Costs are payable in the amount of $17,500 by the applicant to the respondent forthwith.
CUNNINGHAM, ACJ
PARDU, J.
MULLIGAN, J.
Released: December 7, 2011
CITATION: Toronto (City) v. 621 King Developments Ltd., 2011 ONSC 7047
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ACJ CUNNINGHAM, PARDU, MULLIGAN JJ
BETWEEN:
CITY OF TORONTO
Appellant
– and –
621 KING DEVELOPMENTS LTD.
Respondent
REASONS FOR JUDGMENT
Released: December 7, 2011