CITATION: Loeb v. Toronto (City), 2024 ONSC 277
DIVISIONAL COURT FILE NO.: 166/23
DATE: 20240115
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, Tzimas and Nishikawa JJ.
BETWEEN:
Audrey Loeb, David Ross and Noreen Taylor
Applicants
– and –
City of Toronto and Liu Yan
COUNSEL:
Ian Flett, for the Applicants
Christopher Henderson and Lauren Pinder, and Molly Lowson for the City of Toronto
Respondents
Rodney Gill and Matthew Lakatos-Hayward,
for Liu Yan
HEARD: October 23, 2023
REASONS FOR DECISION
Nishikawa J.
Overview
[1] The applicants, Audrey Loeb, David Ross, and Noreen Taylor (the "Applicants"), seek judicial review of a decision of the Toronto East York Committee of Adjustment (the "Committee") dated February 15, 2023 approving minor variances to the property owned by the Respondent, Liu Yan (the "Decision"). The Applicants seek an order setting aside the Decision and ordering a new hearing with directions.
[2] In support of their application, the Applicants submit that they were unable to meaningfully participate in the hearing before the Committee and that the Decision was procedurally unfair because the Committee failed to give adequate reasons, contrary to s. 45(8.1) of the Planning Act, R.S.O. 1990, c. P.13 (the "Planning Act").
Procedural History
The Initial Proposal
[3] The Respondent, Ms. Yan, owns a property on Heath Street West in Toronto. The Applicants are her neighbours. Ms. Loeb and Ms. Ross reside at the property adjacent and to the south of Ms. Yan's property. The properties share a rear lot line. Ms. Taylor's property is across the street from Ms. Yan's property.
[4] In 2020, Ms. Yan applied for 12 minor variances to facilitate the construction of a two-and-a-half storey, single-detached, multi-generational dwelling with an integrated garage and a partially enclosed rear deck on the property. The Committee refused the initial proposal. Ms. Yan appealed the refusal to the Toronto Local Appeal Body ("TLAB").
[5] In September 2021, Ms. Yan amended the initial proposal to reduce the density, height, length, and depth of the proposed home and to make other changes to four other minor variances. The Applicants opposed the Respondent's revised proposal before the TLAB.
[6] In March 2022, after a three-day hearing, the TLAB dismissed Ms. Yan's revised application on the basis that the proposal failed to uphold the general intent and purpose of the official plan.
The New Proposal
[7] On October 28, 2022, Ms. Yan submitted a further application for six minor variances to the zoning by-law in relation to the proposed home. The variances sought were namely: maximum density, building length, depth, height, floor height, and platform floor height.
[8] The Committee scheduled a hearing for February 15, 2023, and gave notice by way of a Public Hearing Notice dated February 5, 2023 that was mailed to landowners within 60 metres of Ms. Yan's property. A notice was also posted on the front door of the property. The notice required that written submissions be sent by email by February 8, 2023.
[9] On February 8, 2023, the Applicants submitted a request to adjourn the hearing because both Ms. Loeb and Mr. Ross were out of the country. Ms. Taylor agreed with the request. However, the Respondent opposed it. The hearing was not adjourned.
[10] On February 9, 2023, Ms. Loeb's land-use planner submitted a letter objecting to the facts presented by Ms. Yan in her new proposal.
The Committee Hearing
[11] The hearing proceeded by videoconference on February 15, 2023. The Committee heard submissions made on behalf of both the Applicants and Ms. Yan. When the Committee asked how Ms. Yan's minor variance application would impact their property specifically, the Applicants noted concerns about the height of the main floor and enclosed deck at the rear of the proposed home.
[12] After hearing the submissions, Member Clay brought forward a motion to approve Ms. Yan's application, which the Committee then approved.
[13] On February 21, 2023, the Committee issued written reasons approving the application, giving the following reasons:
(a) The general intent and purpose of the Official Plan is maintained;
(b) The general intent and purpose of the Zoning By-law is maintained;
(c) The variance(s) is considered desirable for the appropriate development of the land; and
(d) In the opinion of the Committee, the variance(s) is minor.
[14] The Committee's approval was subject to the following additional conditions:
(a) The applicant/owner was to submit a complete application for permit to injure or remove privately owned tree(s) under the applicable provisions of the Municipal Code;
(b) The rear first storey enclosed deck was to be glazed with frosted glass facing into the patio; and
(c) The new three-storey detached dwelling was to be constructed substantially in accordance with the site plan and side elevations received by the Committee. Any other variances not listed in the written decision were not authorized.
Legislative Amendment
[15] In the meantime, while Ms. Yan's application was pending, the More Homes Built Faster Act, 2022, S.O. 2022 c. 21 (the "More Homes Act") came into force on November 28, 2022. The More Homes Act included an amendment to the Planning Act which removed the statutory right of appeal of third parties (for example, neighbouring property owners) to a minor variance decision of a local Committee of Adjustment. Under the amended provision, only the applicant, Minister or public body, or "specified person" as defined in the Act has a right of appeal to the tribunal: Planning Act, s. 45(12).
[16] In Toronto, appeals of minor variance applications are heard de novo by the TLAB. Appeals of decisions of the TLAB to this court are permitted, with leave, on a question of law: Planning Act, s. 8.1(10).
[17] As a result, while the Applicants would have previously had a right to appeal a decision of the Committee to the TLAB, as of November 2022, they no longer have a right of appeal. Although third parties no longer have a right of appeal to the TLAB, where a minor variance applicant or other specified person appeals, they are entitled to participate in the appeal.
Issues
[18] The application for judicial review raises the following issues:
(a) Do the Applicants have standing to seek judicial review of the Decision?
(b) Were the Applicants unable to meaningfully participate in the hearing?
(c) Were the Committee's reasons inadequate?
Analysis
Do the Applicants Have Standing to Seek Judicial Review of the Decision?
[19] The City submits that the Applicants lack standing to seek judicial review of the Decision.
[20] The Applicants rely on public interest standing, as opposed to private interest standing, to bring this application for judicial review. They did not assert that the proximity of their own properties to the property that was the subject matter of the Decision or the variances sought by the property owner affected their private interests such that standing to seek judicial review ought to be available to them.
[21] Different considerations apply where a party seeks public, as opposed to private, interest standing. The courts have taken a more flexible, discretionary approach to public interest standing. In exercising its discretion to grant public interest standing, the court must consider three factors: (i) whether there is a serious justiciable issue raised; (ii) whether the plaintiff has a real stake or genuine interest in it; and (iii) whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts: Carroll v. Toronto-Dominion Bank, 2021 ONCA 38, at para. 34. The party seeking standing must persuade the court that a purposive and flexible application of the factors favours granting standing.
[22] The Applicants take the position that they meet the test for public interest standing because:
• There is a serious justiciable issue, given that the outcome of the case deals with procedural rights and the Committee's procedures "writ large";
• The Applicants have shown genuine interest in the matter, as evidenced by the fact that the minor variances have a potential impact on the neighbourhood and the enjoyment of their homes, as well as by the Applicants' participation before the TLAB on the Respondent's appeal of her initial application;
• Given that the Applicants' procedural rights have been significantly reduced by the introduction of the More Homes Act, a judicial review application is the most appropriate avenue to challenge the Decision.
[23] The issue of a third party's standing to seek judicial review of decisions of a committee of adjustment does not appear to have been previously raised or specifically decided.
[24] In my view, in the circumstances of this case, the Applicants have not satisfied the test for public interest standing.
[25] Assuming, without deciding, that the Applicants have shown a serious justiciable issue, they have not demonstrated the second and third factors. They do not have a real stake or genuine interest in the issues that they raise. The Applicants attempt to characterize the issue as one of public interest in the process before the Committee. The participatory rights of third parties, however, are those that are provided for in the Planning Act and the Committee's Rules.
[26] Moreover, the very interests that the Applicants assert in the substance of the minor variance application, including their ability to enjoy their own properties, are private in nature. The Applicants were entitled to receive notice of the hearing because they were among the property owners living within 60 metres of the property. The Applicants attempt to characterize the issue before this court as engaging "public rights" because their concerns relate to the character of the neighbourhood. However, the concern articulated before the Committee related to the height of the main floor and an enclosed deck at the rear of the proposed house, suggesting that their concern was whether Ms. Yan would be able to see into their properties. In terms of private rights, as argued by the City, in a dense urban environment like the City of Toronto, no one has an absolute right to light, views, and prevention of overlook from adjacent properties.
[27] In addition, an application for judicial review is not a reasonable and effective way to bring the issue before the courts. The City highlights the incongruity that would result if the Applicants are able to seek judicial review of a decision of the Committee before this court while parties with a greater interest, such as the Respondent (the minor variance applicant) and the City must first proceed with an appeal to the TLAB and may only proceed before this court with leave on a question of law In my view, it is unlikely that the legislator intended, by removing the right of third parties to appeal to the TLAB, that those parties be able to proceed directly before this court. It is worth noting that third party appeal rights concerning the adoption or amendment of official plans and zoning by-laws were maintained under the More Homes Faster Act.
[28] Accordingly, applying the factors purposively and flexibly, I find that the Applicants have not established entitlement to the granting to them of public interest standing to bring an application for judicial review in this case. Out of an abundance of caution, however, I have nonetheless considered the procedural fairness issues raised by the Applicants.
Standard of Review
[29] On an application for judicial review, issues of procedural fairness are reviewed in this court on a correctness standard through the lens of the factors set out in Baker v. Canada (Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817, 1999 699.
Were the Applicants Denied a Meaningful Opportunity to Participate in the Hearing?
[30] The Applicants submit that they did not have an opportunity to participate meaningfully in the hearing before the Committee because Ms. Loeb and Mr. Ross were out of the country at the time and because there was insufficient time before the hearing to make written submissions. The Applicants have not, however, argued that the Respondents failed to comply with the notice requirements of the Regulation.
[31] The procedural protections and participatory rights required to meet the duty of fairness are assessed contextually, in accordance with the five Baker factors. In my view, an application of the Baker factors, below, demonstrates that the Applicants were not denied procedural fairness.
(a) The nature of the decision being made, and the process followed in making it: the Decision relates to minor variances, which are the least consequential land-use changes provided for in the hierarchical framework under the Planning Act. The process envisaged under the Act is a hearing before the Committee, which must allow any interested party to speak. A hearing must take place within 30 days of the application for a minor variance and the application is to be decided in an expeditious manner, 10 days after the hearing. See: Planning Act, s. 45(6), O. Reg. 200/96, s. 3.
(b) The nature of the statutory scheme and the terms of the statute pursuant to which the body operates: The Planning Act provides a right of appeal for specified parties only. Third parties, such as the Applicants, do not have a right of appeal.
(c) The importance of the decision to the individual or individuals affected: As compared to decisions relating to life, liberty, fundamental dignity, or a licence to earn a living, a decision on a minor variance application is of relatively low importance to the Applicants, who are third parties.
(d) The legitimate expectations of the person challenging the decision: The Applicants do not suggest that they had a legitimate expectation of participatory rights beyond those provided in the Planning Act and Rules of Procedure of the Committee.
(e) The choices of procedure made by the agency itself and its institutional constraints: The Committee receives a high volume of applications and must be able to deal with them expeditiously. In 2022, there were 3,751 applications. The Committee has established a procedure for dealing with minor variance applications. Multiple applications are heard in one day. The process before the Committee differs significantly from a judicial model. Deference is owed to the processes designed to balance fairness, public participation, and efficiency.
[32] Based on my review of the Baker factors, I find that the Applicants were entitled to a relatively low level of procedural fairness. They were entitled to receive notice, to have access to the material filed by Ms. Yan, and to have an opportunity to be heard in writing and orally, within the time constraints determined by the Committee.
[33] In this case, I find that the degree of procedural fairness owed to the Applicants in all the circumstances was met. The Applicants received notice of the application and hearing in full compliance with the relevant requirements for same. The Committee was not required to adjourn the hearing to allow the Applicants more time to make submissions or to participate in the hearing personally. They were able to make both written and oral submissions. Of the three individuals registered to speak at the hearing, two represented the Applicants: Robert Brown and a land-use planner, Terry Mills. Given the time limit on oral submissions, any submissions would be expected to be limited in nature. The Applicants' representatives made submissions regarding the issues that concerned them. The Committee's comments during the hearing reflect that the Applicants' submissions were heard and considered. Moreover, the hearing was conducted by videoconference, which the Applicants could have attended and participated in virtually from wherever they were.
[34] The statutory scheme makes clear that decisions on minor variances are to be made in an expeditious manner. In my view, given the nature of the hearing and decision to be made by the Committee, the concerns raised by the Applicants, and the statutory context, the Applicants were able to meaningfully participate in the hearing.
Are the Committee's Reasons Inadequate?
[35] The Applicants take the position that the Decision is "procedurally unfair" because it does not adequately explain the reasons for the decision. They submit that because the Decision does not comply with the requirements of s. 45(8.1) of the Planning Act, it is invalid and must be quashed.
[36] Subsection 45(8.1) of the Planning Act states as follows:
The decision of the Committee"whether granting or refusing an application, shall be in writing, shall be signed by the members who concur in the decision and shall,
(a) set out the reasons for the decision; and
(b) contain a brief explanation of the effect, if any, that the written and oral submissions mentioned in subsection (8.2) had on the decision.
[37] Subsection 45(8.2) states that the above provision applies to any written submissions relating to the application that were made to the committee before its decision and any oral submissions that were made at the hearing.
[38] I disagree with the Applicants' position that a decision that does not strictly comply with the requirements of s. 45(8.1) is invalid. To begin with, s. 45(8.1) does not provide such a consequence. By contrast, s. 45(8) of the Planning Act states that "[n]o decision of the committee on an application is valid unless it is concurred in by the majority of the members of the committee that heard that application." Therefore, where the legislature has intended that the consequence of a failure to comply with the statutory requirements is that the decision is invalid, it has specifically stated that.
[39] Moreover, the relevant subsection of s. 45 of the Planning Act was amended in 2015 under the Smart Growth for Our Communities Act, 2015, S.O. 2015, C. 26, s. 29(3). The previous version of s. 45(8) of the Planning Act provided that no decision of the committee on an application was valid unless the majority of the members concurred and also required that the decision "shall be in writing and shall set out the reasons for the decision…[.]" Previously, a decision of the committee was invalid if the reasons were insufficient. In separating out subsections 45(8.1) and (8.2) from the previous version of s. 45(8), the legislature chose to limit invalidity to the sole basis in the current version of s. 45(8), that is, non-concurrence by a majority of the members of the committee.
[40] Moreover, this interpretation of s. 45(8.1) is consistent with the Supreme Court of Canada's holding that where reasons are not provided or are deficient, the court should examine the decision in light of the record, the larger context, and other relevant constraints: Vavilov, at paras. 137-138.
[41] In Bacher v. GR (CAN) Investments, 2022 ONSC 2937 (Div. Ct.), at para. 23, this court held that the correct approach to assessing reasons, based on Vavilov, is to assess whether the tribunal's reasons explain the decision to the parties, provide public accountability, and permit effective appellate review. In the context of a decision of a Committee of Adjustments, in Opara and Leslie, 2012 ONSC 2483 (Div. Ct.), at para. 13, this court held that the "four tests" do not have to be applied "entirely separately and formulaically" but that it is sufficient if the reasons make it clear that the decision-maker substantively applied the "four tests" after properly considering the appropriate factors and evidence.
[42] While the Applicants rely on this court's decision in Masters v. Claremont Development Corporation, 2021 ONSC 3311 (Div. Ct.), in that case, this court declined to set aside a decision for the tribunal's failure to provide adequate reasons and instead found that the decision was sufficiently supported by the record.
[43] In this case, while the Decision itself is brief, it is clear from the record that the Committee applied the four tests and considered the evidence before it. There was a significant amount of evidence before the Committee beyond the parties' oral submissions, including surveys, architectural plans, a tree protection plan, and a table of other minor variances approved in the neighbourhood. The material from the previous application was also available to the Committee, and there was an overlap in the committee members from the previous hearing before the TLAB.
[44] At the hearing, the Committee members mentioned that the plan had been revised significantly to address the concerns raised by the previous application, that the proposal was not out of keeping with Forest Hill community, and that it addressed the neighbours' submissions. The Committee was not persuaded by the Applicants' submissions, which did not identify significant impacts. The Committee found that the proposal mitigated against such impacts, which would be further addressed by the conditions that the Committee imposed in its Decision.
[45] When read in the context of the record and the transcript of the hearing, I consider that the Decision addresses the four tests and provides sufficient reasons to explain the Decision to the parties, provide public accountability and permit effective appellate review. Accordingly, the reasons for the Decision are adequate.
Conclusion
[46] Accordingly, the application for judicial review is dismissed.
[47] The Respondent, Liu Yan, is entitled to costs of the application, which we fix at $7,500 all-inclusive, payable by the Applicants within 30 days of the release of these reasons. The City did not seek costs and none are awarded to it.
"Nishikawa J."
"I agree: Stewart J."
"I agree: Tzimas J."
Released: January 15, 2024
CITATION: Loeb v. Toronto (City), 2024 ONSC 277
DIVISIONAL COURT FILE NO.: 166/23
DATE: 20240115
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, Tzimas and Nishikawa JJ.
BETWEEN:
Audrey Loeb, David Ross and Noreen Taylor
Applicants
– and –
City of Toronto and Liu Yan
Respondents
REASONS FOR DECISION
Nishikawa J.
Released: January 15, 2024