2024 ONSC 6079
DIVISIONAL COURT FILE NO.: 2812/23
DATE: 20241101
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Edwards RSJ, Myers, and MacNeil JJ
BETWEEN:
ROCKCLIFFE PARK RESIDENTS ASSOCIATION
Applicant
– and –
THE CITY OF OTTAWA
Respondent
– and –
JIANBIN WANG
Intervenor
Katie Black, for the Applicant
Tim Marc, for the Respondent
Tara M. Sweeney and Philip Osterhout for the Intervenor
HEARD at Ottawa (by Videoconference): September 9, 2024
FL Myers J:
REASONS FOR DECISION
Introduction
[1] Rockcliffe Park Residents Association brings an application for judicial review of the City of Ottawa’s decision, dated July 12, 2023, to grant Jianbin Wang a heritage permit to construct a new house at 480 Cloverdale Road in the Rockcliffe Park neighbourhood in Ottawa.
[2] Rockcliffe Park has been designated as a Heritage Conservation District under s. 42 of the Ontario Heritage Act, RSO 1990, c 0.18. Mr. Wang’s proposed construction of a new home is subject to the requirements of the Rockcliffe Park Heritage Conservation District Plan.
[3] Mr. Wang made two prior applications to build a home at the same site in Rockcliffe Park. Both were rejected. After making changes to his proposed plans, the City staff were satisfied and recommended approval of Mr. Wang’s permit application to City Council. City Council agreed. It approved the final plans and granted a heritage permit on July 12, 2023.
[4] In addition to the final decision of the City, the Applicant purports to challenge the prior staff and committee recommendations to approve Mr. Wang’s application. In my view, nothing turns on the distinction among the three phases of the permitting process. All were part and parcel of the applicable regulatory approval process considered in this application. Technically however, there is only one permitting decision and it was made by City Council on July 12, 2023.
[5] The essence of the challenge is that the Applicant believes that the proposed house is too big and too modern in its design and layout. The Applicant submits that the proposed house is out of character with the carefully preserved heritage and culturally significant landscapes of Rockcliffe Park. The Applicant relies on a technical reading of the applicable District Plan to submit that the City’s decision to approve the house was unlawful and therefore unreasonable.
[6] The Applicant also submits that it was denied procedural fairness in the City’s final approval process. It was consulted and engaged fully at the staff and committee stages. But the Applicant was not invited to appear before City Council and it is not clear if its written objections were put before Council by staff.
[7] For the reasons set out below, the application is dismissed. I do not agree with the Applicant’s narrow interpretation of the City’s District Plan. Moreover, the Applicant fulfilled the role provided for it in the District Plan. It made its opposition to the proposed house known loud and clear to the City. The City’s basis for its decision is both readily discernable and reasonable.
[8] There is a related point about standing that requires comment. I do not need to decide if the Applicant has standing to bring this proceeding because the application is dismissed in any event. But I am dubious that the District Plan intends for the Applicant association to be a voice for private neighbours to become involved in opposing applications by neighbouring owners about the development of their private properties.
[9] The Applicant has a consultative role in the staff review process leading to the City Council’s permitting decision. It has no role at City Council itself. Unlike the City and the owner, the Applicant has no appeal rights from the City’s permitting decision. Moreover, if the City or the owner appeals the City’s decision, their further appeal to this court is limited to issues of law. While judicial review has been widened by the Supreme Court of Canada, the parties’ judicial review rights may still be tempered by the existence of the appeal right.[^1] It is difficult to interpret the regulatory scheme as anticipating that opposing neighbours were being given greater rights than the immediate parties.
[10] On a higher level of abstraction, I am concerned that the Applicant is purporting to act as an extra judge and jury in the regulatory approval process. If it is entitled to full participation rights and can launch judicial review if an owner does not buckle under to neighbours’ demands, then the Applicant becomes an additional decision-maker. At least, property owners anticipating development will have to consider the chill caused by the prospect of neighbouring landowners’ litigation despite whatever approvals the property owner may receive from the City under the District Plan and the Ontario Heritage Act.
[11] I am very hesitant to find that the Applicant ought to be recognized as having standing to challenge a private owner’s permit application for his or her own property. As noted above however, I do not need to reach a conclusion on this issue as the application is dismissed in any event.
Background
[12] Mr. Wang applied for a permit to build his new home on April 28, 2023. The City acknowledged receipt of the application effective that day in a letter dated May 3, 2023. The City advised Mr. Wang that the 90-day period required for it to accept or reject the application would expire on July 27, 2023. It committed to advise Mr. Wang of the dates for proposed meetings of the Built Heritage Committee (Ottawa’s municipal heritage committee) and then City Council.[^2]
[13] On May 8, 2023, the City invited the Applicant to meet to discuss Mr. Wang’s application.
[14] Mr. Wang’s property is an empty lot. It is a very big lot bordering the neighbourhood tennis club on one side. Mr. Wang’s lot is twice as deep as the lot owned by his other neighbour, Ms. Ratushny, at 484 Cloverdate. Ms. Ratushny’s house is a “Grade I” property under the District Plan. That means that it is seen to contribute to the cultural heritage value of Rockcliffe Park through its landscaped setting, architecture, and environment. It is therefore a direct comparator for Mr. Wang’s proposed new house.
[15] Mr. Wang first applied for a heritage permit in October, 2021. His design included a 48-meter wing proposed to be located along the northern edge of the property nearest to Ms. Ratushny’s property. City staff were concerned that the proposed north wing was not compatible with Ms. Ratushy’s property. The Built Heritage Committee therefore attached conditions to the approval of the permit that would have required Mr. Wang to revise the proposed size and configuration of the north wing. Mr. Wang notes that the conditions did not require any reduction to the overall size of the house.
[16] Mr. Wang submitted a revised plan in early 2022. Staff recommended against approval as did the Built Heritage Committee. They were not prepared to accept that Mr. Wang’s proposed changes to the north wing addressed their concerns. City Council rejected Mr. Wang’s revised application in February, 2022.
[17] Mr. Wang appealed the refusal to the Ontario Land Tribunal. Applicant members Michael Kelen and Ms. Ratushny were granted standing by the Tribunal to oppose the appeal. Mr. Wang then set about revising his plans again. He withdrew his appeal to allow him to put forward a new plan rather than continuing to try to support his prior plan.
[18] Mr. Wang then delivered his new plan that is the subject of this proceeding. He supported his plan with a Heritage Impact Assessment report written by an expert. The expert opined to the City that the proposed new house, “had a modest street face [that does] not overwhelm” Ms. Ratushny’s streetscape next door. The expert noted that while the house is long, the bulk of its size is toward the south and east allowing for more generous separation between the proposed new house and Ms. Ratushny’s house.
[19] The Applicant and Ms. Ratushny communicated with City staff and made written submissions. They did not provide a competing expert report.
[20] The Built Heritage Committee met on July 11, 2023. Mr. Wang’s architect and his expert supported the application. In addition to the written submissions mentioned above, the Committee heard oral submissions on behalf of the Applicant and from Ms. Ratushny and her husband. They focused on the proposed size and height of Mr. Wang’s house.
[21] The City staff delivered a written report supporting Mr. Wang’s revised application with conditions that are not germane to the issues in this proceeding. Staff reported:
The proposed massing is arranged so that the garage (south) volume, which protrudes closer to the street than the rest of the building, is the volume furthest from the neighbouring Grade I property. The north volume is the portion of the proposed building closest to the neighbouring Grade I property and is setback to have its front elevation wall align with the neighbouring rear elevation wall. The siting of the proposed massing is similar to the arrangement of the former one-storey dwelling that previously existed on the property before it was demolished in 2003.
The proposed massing places the garage volume, which is 8.75 metres from the street (the volume closest to the street), approximately 13 metres from the adjacent Grade I property line. Further, it sets the north wing (the volume closest to the Grade I property), approximately 23 metres from the street, to align with the rear elevation wall of the adjacent Grade I property. While the building is significantly larger than the neighbouring Grade I property, it is important to note that the property is also significantly larger. In staff’s opinion, the arrangement of the volume and the siting of the new house mitigate impacts related to the difference in size and allow the Grade I property to remain a focal point along Cloverdale Road.
The proposed building height is 8.5 metres, measured from the average grade of the subject property to the highest point of the roof surface… Whilst slightly taller, the proposed two-storey height at street-level is compatible with the neighbouring Grade I property and the streetscape. [Emphasis added.]
[22] The Built Heritage Committee recommended that City Council approve Mr. Wang’s application for a permit.
[23] City Council met the next day and granted the permit. The Applicant did not ask to speak at the City Council meeting. Nor was it invited to do so. Councillors had the Committee recommendation, the staff report, and possibly other documents from the City’s files.
Applicable Provisions – The Ontario Heritage Act
[24] Much of this case turns on the interpretation of the Rockcliffe Park Heritage Conservation District Plan adopted by the City under the Ontario Heritage Act. Under s. 41.2 (2) of the statute, a heritage conservation district plan trumps the provisions of other by-laws concerning the heritage conservation district to the extent that there is any conflict between them.
[25] Under s. 41.1 (3) of the statute, prior to adopting a district plan by by-law, a municipality must give notice to all owners of land in the proposed district. It must also advertise the proposed adoption of the district plan to the public at large by newspaper.
[26] The statute requires that a draft district plan must include: a statement of the objective of the proposed heritage designation, statements explaining and describing the heritage value or interest of the proposed district, policies and procedures to achieve the stated objectives of the plan, and a description of minor alterations to the exterior of a home that an owner will be entitled to carry out without obtaining a permit under s. 42 of the statute.
[27] Before adopting a district plan, the municipality is also required to consult with the public, hold a public meeting, and consult with its municipal heritage committee if it has one. Any person is entitled to make oral and written submissions to the municipality concerning the proposed heritage conservation district plan.
[28] Subsection 41 (4) of the statute grants a right to appeal to any member of the public who objects to a by-law in which a municipality adopts a heritage conservation district plan.
[29] There is no issue in this application that the Rockcliffe Park Heritage Conservation District Plan was validly enacted after broad public consultation.
[30] This application involves a specific request for a permit by an owner under s. 42 of the Ontario Heritage Act. The relevant parts of the statute provide:
Erection, demolition, etc.
42 (1) No owner of property situated in a heritage conservation district that has been designated by a municipality under this Part shall do any of the following, unless the owner obtains a permit from the municipality to do so:
Alter, or permit the alteration of, any part of the property, other than the interior of any structure or building on the property.
Erect any building or structure on the property or permit the erection of such a building or structure.
Demolish or remove, or permit the demolition or removal of, any attribute of the property if the demolition or removal would affect a heritage attribute described in the heritage conservation district plan that was adopted for the heritage conservation district in a by-law registered under subsection 41 (10.1).
Demolish or remove a building or structure on the property or permit the demolition or removal of a building or structure on the property.
Exception
(2) Despite subsection (1), the owner of a property situated in a designated heritage conservation district may, without obtaining a permit from the municipality, carry out such minor alterations or classes of alterations as are described in the heritage conservation district plan in accordance with clause 41.1 (5) (e) to any part of the property in respect of which a permit would otherwise be required under subsection (1).
Application for permit
(2.1) The owner of property situated in a designated heritage conservation district may apply to the municipality for a permit to alter any part of the property other than the interior of a building or structure on the property or to do anything referred to in paragraph 2, 3 or 4 of subsection (1) in respect of the property.
Content of application
(2.2) An application under this section shall include such information as the council of the municipality may require.
Notice of receipt
(3) The council, upon receipt of an application under this section together with such information as it may require under subsection (2.2), shall cause a notice of receipt to be served on the Applicant.
Decision of council
(4) Within 90 days after the notice of receipt is served on the Applicant under subsection (3) or within such longer period as is agreed upon by the Applicant and the council, the council may give the Applicant,
(a) the permit applied for;
(b) notice that the council is refusing the application for the permit; or
(c) the permit applied for, with terms and conditions attached.
Consultation
(4.1) If the council of a municipality has established a municipal heritage committee under section 28, the council shall, before taking any action under subsection (4) with respect to an application to do anything referred to in paragraph 2, 3 or 4 of subsection (1) in respect of the property in a heritage conservation district, consult with its municipal heritage committee.
Deemed permit
(5) If the council fails to do any of the things mentioned in subsection (4) within the time period mentioned in subsection (4), the council shall be deemed to have given the Applicant the permit applied for.
Appeal to Tribunal
(6) If the council refuses the permit applied for or gives the permit with terms and conditions attached, the owner of the property may appeal to the Tribunal. [Emphasis added and citations omitted.]
[31] The permitting process provided by the statute deems a permit to have been issued within 90 days of the municipality giving notice of receipt of an owner’s application unless the municipality issues the permit, without conditions, or gives notice of refusal of the permit within that time. The process is required to move very quickly. The process requires the municipality to consult with its municipal heritage committee.
[32] Unlike the process for approval of the district plan under s. 41 of the statute, when an application is made by an owner for a permit to build on his or her land, there is no consultation with the public at large, no mandatory public meeting, no guarantee of members of the public having a right to make oral or written submissions, and no appeal rights beyond the applicant owner.
Applicable Provisions – City of Ottawa
[33] In 1997, the Village of Rockcliffe Park became a heritage conservation district under the statutory regime then in force. The Village amalgamated into the City of Ottawa in 2001.
[34] The City’s Official Plan recites a key goal of conserving its cultural heritage resources.
[35] In March, 2016, the City passed a by-law to adopt the Rockcliffe Park Heritage Conservation District Plan. The relevant terms of the District Plan include:
4.0 Heritage Permits
…All property alterations, other than to the interior of the buildings, require the approval of the City of Ottawa and shall comply with the Policies and Guidelines of this Plan.
4.1 Community Consultation
Individual Applicants should consult with the Heritage Committee of the Rockcliffe Park Residents’ Association prior to the submission of a full application under the Ontario Heritage Act. It will provide comments on proposals to alter properties in the HCD that should accompany the final application submitted to heritage staff.
5.0 Statement of Objectives
• To conserve and enhance Rockcliffe Park’s unique character as a planned and designed 19th century community characterized by its narrow curving roads, without curbs or sidewalks, large lots and gardens, and buildings set within a visually continuous green landscape.
• To ensure that the rehabilitation of existing buildings, the construction of additions to existing buildings and new buildings contribute to and enhance the cultural heritage values of the HCD.
• To maintain the park-like attributes, qualities and atmosphere of the HCD.
• To conserve Grade I buildings and natural features according to the “Standards and Guidelines for the Conservation of Historic Places in Canada.”
• To ensure that the original design intentions of Rockcliffe Park as an area characterized by houses located within a visually continuous, rich landscaped setting continue.
• To manage the HCD’s public roads and streetscapes in a manner that sustains the cultural heritage values of the HCD.
• To ensure that new house construction is compatible with, sympathetic to and has regard for the height, massing and setbacks of the established heritage character of the streetscape in order to conserve the character and pattern of the associated streetscape, while creating a distinction between new and old.
• To ensure the use of natural materials for new construction to reflect the existing character of the area.
• To encourage the retention of existing trees, shrubs, hedges and landscape features on public and private property.
6.0 Statement of Cultural Heritage Value
The preservation of the natural landscape, the deliberately curved roads, lined with mature trees, and without curbs or sidewalks, the careful landscaping of the public spaces and corridors, together with the strong landscaping of the individual properties, create the apparently casual and informal style so integral to the Picturesque tradition. The preservation and enhancement of topographical features including the lake and pond, the internal ridges and slopes, and the various rock outcroppings, has reinforced the original design intentions. The views to and from the Ottawa River, the Beechwood escarpment, and the other park areas are integral to the Picturesque quality of Rockcliffe Park. Beechwood Cemetery and the Rockeries serve as a compatible landscaped boundary from the earliest period of settlement through to the present. The various border lands create important gateways to the area, and help establish its particular character.
The architectural design of the buildings and associated institutional facilities is similarly deliberate and careful, and reflects the casual elegance and asymmetry of the English country revival styles, such as the Georgian Revival, Tudor Revival and Arts and Crafts. Many of the houses were designed by architects in these styles. The generosity of space around the houses, and the flow of this space from one property to the next by continuous planting rather than hard fence lines, has maintained the estate qualities and park setting envisioned by Keefer.
Description of Heritage Attributes
The attributes of the Rockcliffe Park HCD are:
• The natural features that distinguish the HCD, including Mckay lake and its shoreline, the varied terrain, and topography;
• The unobtrusive siting of the houses on streets and the generous spacing relative to the neighbouring buildings;
• The variety of mature street trees and the dense forested character that they create;
• The profusion of trees, hedges, and shrubs on private property;
• Varied lot sizes and irregularly shaped lots;
• Generous spacing and setbacks of the buildings;
• Cedar hedges planted to demarcate property lines and to create privacy;
• The dominance of soft landscaping over hard landscaping;
• Wide publicly-owned verges;
• The remaining Villa lots laid out in Mckay's original plan;
• The high concentration of buildings by architect Allan Keefer, including 725 and 741 Acacia, 11 Crescent Road;
• The rich mix of buildings types and styles from all eras, with the Tudor Revival and Georgian Revival styles forming a large proportion of the total building stock;
• The predominance of stucco and stone houses over and the relative rarity of brick buildings;
• The narrow width of many streets, such as Mckinnon and Kinzua Roads;
• The historic road pattern that still reflects the original design established by Thomas Keefer;
• The low, dry stone walls in certain areas of the Village, including around Ashbury College;
• The existing garden features that enhance the public realm and distinguish certain private properties, including the garden gate at 585 Manor Ave, and the white picket fence at 190 Coltrin Road;
• Informal landscape character with simple walkways, driveways, stone retaining walls and flowerbeds;
• The "dog walk" a public footpath that extends from Old Prospect Road to corner of Lansdowne Road and Mariposa Avenue;
• The public open spaces including the Village Green and its associated Jubilee Garden;
• Institutional and recreational buildings including the three schools, Rockcliffe Park Public School, Ashbury College and Elmwood School for Girls and the Rockcliffe Park Tennis Club;
• The significant amenities of the Caldwell-Carver Conservation Area, Mckay Lake and the Pond,
• The multi-unit buildings, small lots, and more modest houses in the area bounded by Oakhill to the east, Beechwood to the south, and Acacia to the west and north, referred to as the "Panhandle" that characterize the south and west boundaries of the District.
• The regular front yard setbacks on some streets such as Sir Guy Carleton Street, Blenheim Drive and Birch Avenue
• The irregular front yard setbacks on some streets, such as Mariposa Avenue between Springfield and Lisgar Roads, Crescent Road, Acacia Avenue and Buena Vista between Springfield and Cloverdale Roads
7.0 Policies and Guidelines
The policies and guidelines in this Plan anticipate change in the HCD. Historic buildings will be restored, added to and adapted for new uses and new buildings may be constructed. The purpose of the following sections is to ensure that all change is sympathetic to individual individual buildings, the adjacent properties and the value of the HCD as a cultural heritage landscape.
7.1 District Policies
To meet the Objectives of this Plan, the Policies below are to be followed when managing change in the Rockcliffe Park HCD.
- New construction shall be in conformity with the Policies and Guidelines in the Plan.
7.4.2 Guidelines for New Buildings
Property owners are encouraged to retain an architect, designer and/or heritage professional when designing a new building in the HCD.
New buildings shall contribute to and not detract from the heritage character of the HCD and its attributes.
Construction of new buildings will only be permitted when the new building does not detract from the historic landscape characteristics of the associated streetscape, the height and mass of the new building are consistent with the Grade I buildings in the associated streetscape, and the siting and materials of the new building are compatible with the Grade I buildings in the associated streetscape. Where there are no Grade I buildings in the associated streetscape, the height and mass of the new building shall respect the character of the existing buildings and shall not have a negative impact on the associated streetscape or the cultural heritage value of the HCD. These situations will be reviewed on a case-by-case basis in consultation with the community in accordance with Section 4.1 of this Plan.
New buildings shall be of their own time but sympathetic to the character of their historic neighbours in terms of massing, height and materials. New buildings are not required to replicate historical styles.
Integral garages shall be located in a manner that respects the cultural heritage value of the streetscape.
Existing grades shall be maintained.
In order to protect the expansive front lawns, and the generous spacing and setbacks of the buildings, identified as heritage attributes of the HCD, the following Guidelines shall be used when determining the location of new houses on their lots:
a) New buildings on interior lots shall be sensitively sited in relation to adjacent buildings. Unless a new building maintains the front yard setback of a building it is replacing, the front yard setback of the new building shall be consistent with that of the adjacent building that is set closest to the street. A new building may be set back further from the street than adjacent buildings.
b) In general, unless a new building on a corner lot maintains the setbacks of the building it is replacing, the new building shall not be closer to the street than both adjacent buildings. The new building may be set back further from both streets than the adjacent buildings. If the front yard setbacks of the adjacent buildings cannot reasonably be used to determine the front yard and exterior side yard setbacks of a new building, the new building shall be sensitively sited in relation to adjacent buildings on both streets.
Windows may be wood, metal clad wood, steel or other materials as appropriate. Multi-paned windows should have appropriate muntin bars.
The use of natural materials, such as stone, real stucco, brick and wood is an important attribute of the HCD, and the use of materials such as vinyl siding, aluminium soffits, synthetic stucco, and manufactured stone will not be supported. [Emphasis added.]
[36] While I will deal with the technical points made by the Applicant below, at this stage I simply note that the guidelines for new homes in the District Plan are mandatory. They deal with home exteriors only. They aim to maintain the look and feel of the unique streetscape as extensively described.
[37] In Richcraft Properties Ltd. v Ottawa (City), the Local Planning Appeal Tribunal found that the District Plan aims to conserve both significant built resources and significant cultural landscapes. It is the latter that is the focus of this application.
[38] The District Plan specifies in s. 7.4.2 (3) that consultation with the community for applications for new construction is to be in accordance with s. 4.1. Section 4.1 provides that an Applicant “should consult” with the Applicant prior to submitting an application for a permit because:
[The Applicant] will provide comments on proposals to alter properties in the HCD that should accompany the final application submitted to heritage staff. [Emphasis added.]
The Issues
[39] The Applicant submits that the decision to grant the permit was unreasonable. City Council gave no reasons for its decision. Looking at what was before the Built Heritage Committee leads the Applicant to submit that staff and the Committee failed to properly apply the mandatory provisions of the District Plan regarding the mass and height of Mr. Wang’s proposed house. The Applicant also says it was denied procedural fairness because its submissions were not before City Council.
(a) The District Plan
[40] In Thales DIS Canada Inc. v. Ontario (Transportation), 2023 ONCA 866, Favreau JA gave clear directions concerning the application of the reasonableness standard when this court conducts a judicial review:
[91] In Vavilov [Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65], at para. 83, the court emphasized that the reasonableness review must focus on the reasons of the administrative decision maker. The reviewing court’s role is not to decide the issue afresh: “a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem.” The court further emphasized, at para. 84, that the “reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion”.
[92] The hallmarks of a reasonable decision are justification, transparency and intelligibility: Vavilov, at para. 99.
[93] There are two types of “fundamental flaws” that may make a decision unreasonable: Vavilov, at para. 101. First, a decision may be unreasonable because the reasoning process is internally irrational: Vavilov, at para. 101. As explained in Turkiewicz, at para. 59, the “reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic”: see also Vavilov, at para. 102.
[94] Second, a decision may be unreasonable because it is “untenable in light of the relevant factual and legal constraints that bear on it”: Vavilov, at para. 101. Again, as described in Turkiewicz, at para. 60, the relevant factual and legal constraints include “the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the parties’ submissions; the past practices and decisions of the administrative body; and the potential impact on the individual to whom it applies”: see also Vavilov, at para. 106.
[41] City Council did not provide reasons for its decision to approve Mr. Wang’s permit application. Nor would it be expected to do so. It is apparent from the consultation provision of the District Plan that the bulk of the debate, if any, is to occur with staff and at the municipal heritage committee. Ms. Ratushny’s affidavit provide extensive details of the communications between the Applicant and City staff leading to Ms. Ratushny’s written and oral submissions to the Built Heritage Committee. Ms. Hayman’s evidence provides yet further communications between the Applicant and staff on the issues. She also appends the Applicant’s written submissions to the Committee as well as a transcription of her oral submissions before the Committee.
[42] The Applicant submits that City Council’s decision is untenable under the second objection described in Thales. The Applicant submits that the District Plan is mandatory and, properly interpreted, precludes the issuance of a permit to allow a new home to be built if the proposed height or volume of the new house will exceed the existing height or volume of its Grade I neighbour (Ms. Ratushny’s house).
[43] The Applicant submits that the mandatory height and volume limits in the District Plan are legal constraints that prevented the City from approving the permit.
[44] Subsection 7.1 (4) of the District Plan is clear and unambiguous. New construction must comply with the policies and guidelines in the District Plan. Subsection 7.4.2 (2) provides that new houses must contribute to and not detract from the heritage character of the neighbourhood and its recognized attributes.
[45] Subsection 7.4.2 (3) provides:
Construction of new buildings will only be permitted when the new building does not detract from the historic landscape characteristics of the associated streetscape, the height and mass of the new building are consistent with the Grade I buildings in the associated streetscape, and the siting and materials of the new building are compatible with the Grade I buildings in the associated streetscape.
[46] The Applicant submits that there are three mandatory conditions set out in this guideline:
(a) The proposed new home must not detract from the heritage landscape characteristics of the streetscape;
(b) The proposed new home cannot be any larger in height or volume than the neighbouring Grade 1 home i.e. Ms. Ratushny’s house; and
(c) The siting and materials of the proposed new home must be compatible with Ms. Ratushny’s house.
[47] The Applicant interprets the words “are consistent with” to mean “cannot exceed”. In other words, the Applicant submits that it is a mandatory requirement of the District Plan that no house at 480 Cloverdale can ever be larger in volume or taller than Ms. Ratushny’s house. Mr. Wang’s proposed house is approximately 3.5 times the volume of Ms. Ratushny’s house. It is a much bigger house.
[48] The Applicant submits that the failure to properly interpret the District Plan makes the City’s decision unreasonable.
[49] It is important to contrast s. 7.4.2 (3) with the very next section in the District Plan, s. 7.4.2 (4) that says:
New buildings shall be of their own time but sympathetic to the character of their historic neighbours in terms of massing, height and materials. New buildings are not required to replicate historical styles.
[50] So, under this guideline, new homes need be “sympathetic” to neighbours’ homes in terms of massing, height and materials. That obviously does not say that new homes can never exceed the height or volume of neighbours’ houses. It suggests that the requirement of consistent mass used in the immediately preceding guideline also is a more subjective or contextual relativity rather than a mathematical prohibition as submitted by the Applicant.
[51] The Applicant then submits that the word “mass” in the prior section 7.4.2 (3) has a different meaning than “massing” used in 7.4.2 (4). Mass, the Applicant submits, means mathematically determined volume of a house. It is length times height times width. “Massing” the Applicant submits, is the arrangement of a building in and around the space provided. To that end, the word “massing” is used in the City staff report to discuss where different parts of the proposed house are to be located and arranged around the lot.
[52] The proposed difference between “mass” and “massing” leads the Applicant to submit that to be consistent with mass, a house simply cannot exceed the mathematically determined volume of its neighbour. Being sympathetic with “massing” just refers to a more general sense of consistent layout.
[53] I do not accept that as used in the District Plan, the word “mass” means “volume” as mathematically determined or that s. 7.4.2 (3) bears an interpretation that sets an absolute prohibition against the height or volume of a new house exceeding the volume or height of the Grade I neighbouring house.
[54] In elementary school math and science, we are all taught that mass and volume are different concepts. Mass relates to weight or the amount of stuff of which an item is composed. Volume is the space occupied by an item. The concept of density describes the relationship between mass and volume. Density is the amount of stuff in a given space (d = m/v).
[55] But the Applicant says that in the District Plan the word “mass” means “volume”.
[56] The Applicant relies upon an annotated version of the District Plan that has been circulated by City staff to show their approaches to various parts of the document. Ignoring that City staff do not determine the meaning of a law, I do not see this helping the Applicant. The staff annotated version of the District Plan says:
Mass is a term used to indicate the size, volume and form of a building.
Massing is interpreted to mean the combined effect of the arrangement, volume and shape of a building.
[57] I accept that the words are not used in their scientific strict senses as “mass” cannot be both “size” and “volume.” The City interprets mass to be more than just the mathematical volume of a structure. It relates to the size, volume, and form of a proposed building in its circumstances. Massing then relates to the combined effect of the mass. They are not separate concepts.
[58] Moreover, both ss. 7.4.2 (3) and (4) deal with mass, height, and materials. Consistency suggests that when the very next paragraph of the District Plan uses variants of the same words, the meaning is intended to be consistent.
[59] The City planner, Mr. Juarez, was clear and consistent in his cross-examination that he knew that Mr. Wang’s proposed house was much larger than Ms. Ratushny’s house. The City never measured the precise volume of the final proposed house. Mr. Juarez agreed that the floor plate of Mr. Wang’s proposed house was double the area of the floor plate of Ms. Rathusny’s house. The lot was twice as big as well. So, the City was satisfied that they were “consistent” as required.
[60] Similarly, the heights, while not exactly the same, were consistent in City heritage staff view and this was accepted by the Built Heritage Committee who heard all the technical arguments advanced by the Applicant and Ms. Ratushny.
[61] While the District Plan is prescriptive in dealing with new houses in particular, everything is comparative and relative. Section 7.4.2 is a guideline to implement the heritage planning objective set out in section 5.0 of the District Plan as follows:
• To ensure that new house construction is compatible with, sympathetic to and has regard for the height, massing and setbacks of the established heritage character of the streetscape in order to conserve the character and pattern of the associated streetscape, while creating a distinction between new and old.
[62] Similarly, the heritage attributes set out in section 6.0 of the District Plan speak to the look of the neighbourhood from the street. The principal attribute related to home size is:
• The unobtrusive siting of the houses on streets and the generous spacing relative to the neighbouring buildings;
[63] These are the attributes considered by City staff in their report and recommendations that were accepted by the Built Heritage Committee and then City Council.
[64] To the extent that the City Council can be seen to be adopting or approving the staff report as accepted by the Built Heritage Committee, the decision is a reasonable one within the meaning of that term as set out in Vavilov, and as explained by the Court of Appeal in Thales. As I do not accept the interpretation of the District Plan submitted by the Applicant, it follows that the District Plan was not a legal constraint upon the decision to grant Mr Wang’s request for a permit.
(b) Fairness
[65] Statutory decision makers are required to conduct their proceedings fairly. The degree of procedural fairness required is determined by reference to all the circumstances of the case, including those set out in Baker v. Canada (Minister of Citizenship and Immigration).
[66] The City notified the Applicant of Mr. Wang’s application within five days of acknowledging receipt. The Applicant engaged in extensive communications with the City. It knew the issues and availed itself of every opportunity to respond and make its position known.
[67] In s. 4.1, the District Plan invites Applicants for a permit to discuss their plans with the Applicant in advance. It warns people who apply for permits that the Applicant will provide comments that should be provided to staff. In the mandatory provision for new home construction, s. 7.4.2 (3), the District Plan says:
These situations will be reviewed on a case-by-case basis in consultation with the community in accordance with Section 4.1 of this Plan.
[68] The Ontario Heritage Act and the District Plan both deal expressly with community consultation and engagement. The District Plan provides a role expressly for the Applicant in dealing with applications for new homes. That role involves consulting with staff. Here, the Applicant did far more than that. It made formal submissions, oral and written. It provided evidence to the Built Heritage Committee. It could have submitted an expert report to staff or to the Committee had it been so minded.
[69] Under s. 42 (4.1) of the Ontario Heritage Act, City Council was required to “consult with” the Built Heritage Committee. The statute does not provide a veto right for the Committee. In fact, the Committee has no statutory power of decision in the permitting process. Rather, under s. 28 (1) of the statute, the Committee’s role is “to advise and assist” Council on heritage matters as provided in the statute or by by-law.
[70] I see no basis for the Applicant to have had any expectation beyond the participation set out in the District Plan. What was actually provided to it exceeded the reasonable expectation that can be drawn from the statutory scheme and the District Plan.
[71] The Applicant and the public are provided extensive procedural input for municipal decisions to adopt a heritage district conservation plan. Under the District Plan, the Applicant has a much more limited role when a private landowner applies for municipal approval to alter his or her land. Under the statute, the permit will issue in 90 days unless City Council performs required consultation and limits or rejects the permit. I can see no basis to infer broad participation rights to the Applicant or other neighbours beyond what is provided quite specifically in the District Plan (that itself was adopted after the broadest express requirements for public consultation).
[72] A City Councillor reading the staff report and seeing the recommendation of the Built Heritage Committee would understand that issues addressed between Mr. Wang and staff involved the height, size, and massing of the proposed house to protect the heritage attributes of the neighbouring property and streetscape. The staff report provided expressly:
The Rockcliffe Park Residents Association (RPRA) was notified of the application on May 5, 2023. The RPRA's Heritage Committee does not support the application and has provided comments attached as Document 14.
[73] While it appears that the Applicant’s submissions may not have been attached to the version of the staff report that went to City Council, it was referred to expressly and was available to any Councillor who wished to review it. But given that the Applicant had no reasonable expectation nor other basis to have a right to be heard by City Council itself, I see no denial of fairness to the Applicant in the process.
Conclusion
[74] The application is dismissed. The parties agreed that there would be no costs.
F.L. Myers J
I agree _______________________________
M.L. Edwards RSJ
I agree _______________________________
B. MacNeil J
Released: November 1, 2024
2024 ONSC 6079
DIVISIONAL COURT FILE NO.: 2812/23
DATE: 20241101
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Edwards RSJ, Myers, and MacNeil JJ
BETWEEN:
ROCKCLIFFE PARK RESIDENTS ASSOCIATION
Applicant
– and –
THE CITY OF OTTAWA
Respondent
– and –
JIANBIN WANG
Intervenor
REASONS FOR DECISION
FL Myers J.
Released: November 1, 2024
[^1]: See: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8 and the discussion of Strickland v. Canada (Attorney General), 2015 SCC 37.
[^2]: Under s. 42 (4) of the statute set out below, the 90-day period runs from the time the municipality gives notice of its receipt of an application for a permit. The City gave notice of receipt in the May 3, 2023 letter. Hence the 90-day period ran from May 3 rather than April 27, 2023. Nothing turns on the specific dates in this application.