Sylvain R. Rouleau

The applicant, operator of a hookah lounge, brought an application to quash the Region of Durham's Smoking By-law No. 28-2019, which prohibited smoking and vaping in public places including hookah lounges.

The applicant argued the By-law was an ultra vires attempt to regulate business and that subsequent changes to the By-law's set fines schedule invalidated it.

The court found that while the application to quash under the Municipal Act was statute-barred, the request for declaratory relief was not.

On the merits, the court held the By-law was a valid exercise of the municipality's power to protect public health and safety, not an improper regulation of business.

The court also found that changes to the set fines schedule by the Regional Senior Justice did not invalidate the By-law.

The application was dismissed.

The applicant appealed to the Ontario Land Tribunal under s. 34(11) of the Planning Act due to the City's failure to make a decision on a zoning by-law amendment application for a 16-storey apartment building.

At the first Case Management Conference, the Tribunal granted party status to the Toronto Lands Corporation and participant status to three others without objection.

The Tribunal scheduled a 10-day video hearing and directed the parties to submit a finalized Procedural Order and Issues List.

The Ontario Land Tribunal held a Case Management Conference regarding appeals of the City of Brampton's adoption of Official Plan Amendment 206-210 (Heritage Heights Secondary Plan).

The Tribunal granted non-appellant party status to the Credit Valley Conservation Authority and the Regional Municipality of Peel, and participant status to TC Energy.

The Tribunal also established a schedule for the parties to finalize a Consolidated Issues List and a draft Procedural Order, and scheduled a second Case Management Conference for March 23, 2023.

The applicants appealed the Township's refusal to grant a Zoning By-law Amendment to permit the construction of an oversized detached garage on their waterfront property.

The parties reached a settlement that permitted the desired floor area but imposed increased side and front yard setbacks and required the garage to be located behind the principal dwelling.

Relying on the uncontested expert planning evidence of the Township's planner, the Tribunal found the settlement proposal consistent with the Provincial Policy Statement and in conformity with the Official Plan, as the strategic location mitigated impacts on rural character and water quality.

The appeal was allowed in part to implement the settlement.

The applicant appealed the City of Toronto's failure to pass a zoning by-law amendment to facilitate a 43-storey mixed-use building.

The parties reached a settlement prior to the hearing.

Based on uncontested expert land use planning evidence, the Tribunal found that the proposed amendment is consistent with the Provincial Policy Statement, conforms with the Growth Plan and the City's Official Plan, and represents good planning.

The appeal was allowed in part and the zoning by-law amendment was approved.

The Applicant sought costs on a partial indemnity basis in the amount of $14,000 following a minor variance appeal.

The Applicant argued that the Township's conduct was unreasonable and vexatious due to differences in opinion, failed settlement efforts, and the Township planner's lack of objectivity.

The Tribunal dismissed the motion, finding that the proceedings were normally contentious and that the Applicant failed to demonstrate unreasonable, frivolous, or vexatious conduct under Rule 23.9 of the Tribunal's Rules of Practice and Procedure.

The applicant appealed the Township's Committee of Adjustment decision denying a minor variance to permit the replacement of an existing single-storey condominium unit with a 1.5-storey unit.

The variance sought to increase the maximum permitted floor area from 80 square metres to 114.2 square metres.

The Tribunal allowed the appeal and authorized the variance, preferring the applicant's expert planning evidence that the proposal maintained the general intent and purpose of the Official Plan and Zoning By-law, was minor in nature, and was desirable for the appropriate development of the land.

The appellants appealed a decision of the Toronto Local Appeal Body (TLAB) Chair, who had cancelled a TLAB member's decision granting the appellants' application for property severance and minor variances.

The appellants argued they were denied procedural fairness during the review process and that the Chair applied an incorrect standard of review.

The Divisional Court dismissed the appeal, finding that the TLAB met its duty of procedural fairness by providing notice and an opportunity to make submissions, and that the Chair applied the correct standard of review by identifying compelling grounds of jurisdictional and factual errors before substituting his own findings.

The appellants appealed a Committee of Adjustment decision denying a minor variance to permit the construction of a boathouse on their property.

The variance sought relief from the minimum lot frontage requirement.

The Tribunal dismissed the appeal, accepting the uncontroverted expert planning evidence that the proposed boathouse would have a prominent visual impact on the shoreline, contrary to the Official Plan's intent to minimize built form and preserve the natural aesthetic.

The applicants sought a declaration that their property's current use (outside storage of vehicles, machinery, equipment, commercial/business operation, storage of trucks/trailers, shipping containers) constituted a legal non-conforming use under s. 34(9) of the Planning Act, which would set aside municipal Orders to Comply.

The respondent sought dismissal, or a declaration limiting the non-conforming use to 4 trucks and 7 trailers.

The court found that while the property had a prior legal non-conforming use as a trucking business with ancillary parking and storage, the applicants' current use had significantly changed in nature and intensity, including storage of derelict vehicles, a fuelling station, and a junk yard, which were too remote from the original use and caused undue neighbourhood impact.

Consequently, the applicants lost the protection of s. 34(9) of the Planning Act, and their application was dismissed, making the Orders to Comply enforceable.

The University of Windsor brought a motion for a publication ban and sealing order in an application for judicial review of a university adjudicator's decision finding the applicant committed sexual assault.

The motion sought to protect the identity of the complainant and other individuals who made complaints.

Applying the test from Sherman Estate, the court granted the publication ban and a modified sealing order, finding that court openness posed a serious risk to the important public interest of preserving the dignity of sexual assault complainants.

The appellant appealed the adoption of Official Plan Amendment No. 362 (OPA 362), which guides the revitalization of the Dufferin-Wilson Regeneration Area.

Following Tribunal-led mediation, the parties reached a settlement proposing modifications to OPA 362.

Relying on the uncontested land use planning evidence of the City Planner, the Tribunal found the modifications consistent with the Provincial Policy Statement, in conformity with the Growth Plan, and representative of good planning.

The appeal was allowed in part to approve the modified OPA 362.

The applicant sought a declaration that his property's seasonal use as a "camping and recreational compound" with a travel trailer constituted a legal non-conforming use under the Planning Act.

The respondent, an adjacent landowner, counter-applied for a declaration that the use was not lawful.

The court found the relevant zoning by-law clear and unambiguous, permitting only "park" or "open pavilion" uses in the "Hazard Land Zone" thereby prohibiting the applicant's recreational vehicle use.

The applicant failed to establish a legal non-conforming use or that the municipality was estopped from enforcing the by-law due to "officially induced error" as the municipal officials who provided advice lacked the authority to bind the municipality on zoning matters.

The application was dismissed, and the counter-application was granted.

The appellants, owners of several hookah lounges in the Regional Municipality of Peel, challenged by-law No. 30-2016, which prohibits waterpipe smoking in enclosed public places, enclosed workplaces, and restaurant or bar patios.

The appellants argued the by-law was ultra vires the Region, conflicted with provincial occupational health and safety legislation, and was enacted in bad faith.

The application judge dismissed the application, finding the by-law was a valid exercise of municipal authority aimed at protecting public health and safety.

The Court of Appeal upheld this decision, dismissing the appeal and awarding costs to the respondent.

The applicants, having lost their initial application to quash a by-law prohibiting water pipe smoking, sought no costs.

The respondent, The Regional Municipality of Peel, sought costs on a substantial or partial indemnity basis.

The court rejected the applicants' submission for no costs, finding their application was not one of first impression and they knew the risks given prior similar cases.

While acknowledging some merit to the respondent's arguments for substantial indemnity due to re-arguing settled matters and one applicant opening a new lounge, the court found the applicants' conduct not egregious enough to warrant elevated costs.

Applying principles of reasonableness under Rule 57.01(1), the court awarded partial indemnity costs, but reduced the amount by $10,000 due to junior counsel's attendance at the hearing not being deemed necessary for the proper presentation of the respondent's case.

The applicants sought a declaration that a by-law banning waterpipes was invalid.

At the outset of submissions, the applicants moved for leave to file a supplementary affidavit after cross-examinations were completed.

The respondents opposed.

The court dismissed the motion, finding that the document attached to the affidavit was not a "public document" under common law or the Evidence Act, and the applicants failed to meet the high threshold under Rule 39.02(2) of the Rules of Civil Procedure.

The evidence was not responsive to matters raised on cross-examination, and no reasonable explanation for the late filing was provided.

The applicants, owners of several waterpipe lounges, sought to quash provisions of a Regional Municipality of Peel by-law prohibiting waterpipe smoking in enclosed public places.

They argued the by-law conflicted with provincial legislation, was enacted in bad faith, and was ultra vires as it effectively prohibited their businesses.

The Superior Court of Justice dismissed the application, finding that the Region had the statutory authority under the Municipal Act, 2001 to enact the by-law for the protection of public health and safety.

The court also found no conflict with the Occupational Health and Safety Act and no evidence of bad faith.

The City of Toronto and its Clerk brought an application for declaratory relief regarding the coming into force of by-laws establishing a 47-ward structure for the 2018 municipal election and the resulting composition of city council.

The respondents had previously raised concerns about a potential 'legal vacuum' in their unsuccessful motion for leave to appeal an Ontario Municipal Board decision.

The Superior Court of Justice dismissed the application, declining to exercise its discretion to grant declaratory relief because there was no live legal dispute between the parties, affected voters had not been given notice, and the application effectively sought an inappropriate advisory opinion.

The moving parties sought leave to appeal an Ontario Municipal Board decision approving a 47-ward structure for the City of Toronto's municipal elections.

They argued the Board erred in law by failing to prioritize voter parity and by not requiring a corresponding by-law changing the composition of City Council.

The Divisional Court dismissed the motion, finding no reason to doubt the correctness of the Board's application of the Carter principles for effective representation.

The court held that the moving parties were improperly challenging findings of fact and that the Board lacked jurisdiction to determine council composition.

The Town of Richmond Hill appealed an Ontario Municipal Board (OMB) decision that approved the Town's official plan policies regarding parkland dedication but imposed a 25% cap on the alternative requirement under s. 42 of the Planning Act.

The Divisional Court allowed the appeal, finding that the OMB's interpretation of the Planning Act was unreasonable.

The Court held that the legislation expressly grants municipalities the authority to set the alternative parkland dedication rate by by-law, and the OMB does not have the jurisdiction to impose a cap or fix a specific rate through its power to approve official plan policies.