Toronto (City) v. R & G Realty Management Inc., (2009) 254 O.A.C. 66 (DC)

• Judge: Chapnik, Ferrier and Molloy, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: July 16, 2009
• Jurisdiction: Ontario
• Citations: (2009), 254 O.A.C. 66 (DC)

Toronto v. R&G Realty Mgt.  Inc. (2009), 254 O.A.C. 66 (DC)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. SE.002

City of Toronto (appellant) v. R & G Realty Management Inc. (respondent)

(340/08)

Indexed As: Toronto (City) v. R & G Realty Management Inc.

Court of Ontario

Superior Court of Justice

Divisional Court

Chapnik, Ferrier and Molloy, JJ.

August 11, 2009.

Summary:

The City of Toronto denied the respondent's application to convert a 20 storey rental apartment building to a condominium. The Ontario Municipal Board reversed the decision. The City applied for leave to appeal.

The Ontario Divisional Court, in a decision reported at [2009] O.A.C. Uned. 195, granted leave to appeal.

The Ontario Divisional Court allowed the appeal and remitted the matter to a differently constituted panel of the Board for reconsideration.

Land Regulation - Topic 3881

Land use control - Condominiums - Conversion of rental property - General - The City of Toronto denied the respondent's application to convert a 20 storey rental apartment building to a condominium - The Ontario Municipal Board reversed the decision - The City appealed, asserting that the Board erred in its consideration of s. 3(5) of the Planning Act by applying the wrong test in its consideration of the Provincial Policy Statement 2005 (PPS) - The Board set out the test to be applied as follows: "In carrying out its responsibilities under the Act, the Board is required to have regard to matters of provincial interest such as the adequate provision of a full range of housing (s. 2j of the Act and any policy statements issued by the Minister (s. 3(5) of the Act))." - The Board then concluded that "in considering the evidence presented, the Board finds the conversion has regard to matters of public interest within the meaning of subsection 2j of the Act and the housing policy objectives set out in the PPS." - The Ontario Divisional Court allowed the appeal - The Board incorrectly stated the test and equated the PPS standard to the lower standard to be applied when considering provincial interests under s. 2(j) of the Act - It appeared from the analysis that the Board was unaware that a different test was to be applied for the PPS - This was an unreasonable interpretation - See paragraphs 16 to 23.

Land Regulation - Topic 3881

Land use control - Condominiums - Conversion of rental property - General - The City of Toronto denied the respondent's application to convert a 20 storey rental apartment building to a condominium - The Ontario Municipal Board reversed the decision - The City appealed, asserting that the Board erred in its consideration of the Official Plan by failing to properly address the specific requirements under s. 8 before condominium conversions could be approved - The City submitted that the Board erred by applying the Official Plan's general policy concerning the need for a full range of housing, rather than the more specific provisions of the Plan dealing directly with the conversion of rental units to condominiums - In particular, the City argued that the Board failed to apply "the mandatory test" under the Official Plan, which required that the supply and availability of rental housing in the City had to have returned to a healthy state to meet the needs of current and future residents, showing positive sustained improvement as demonstrated by significant net gains in the supply of rental housing, significant levels of productions of rental housing and continued projected net gain in the supply of rental housing, pursuant to s. 3.2.1.8(b)(i) of the Plan - The Ontario Divisional Court allowed the appeal - The Board neglected to properly consider the more specific provisions of the Official Plan dealing with condominium conversions and the limited situations in which they would be approved, as set out in Housing Policy 3.2.1.8. - Given the extent to which the Board ignored and seriously departed from crucial provisions of the Official Plan without stating any reasons for doing so, its decision was unreasonable - See paragraphs 24 to 39.

Land Regulation - Topic 3881

Land use control - Condominiums - Conversion of rental property - General - The City of Toronto denied the respondent's application to convert a 20 storey rental apartment building to a condominium - The Ontario Municipal Board reversed the decision - The City appealed, asserting that the Board misconstrued the Provincial Policy Statement 2005 (PPS) by failing to appreciate that the relevant area for the application of the PPS was the City as a whole, not merely the smaller neighbourhood in which the subject apartment building was located - The Ontario Divisional Court allowed the appeal - The difficulty with the Board's reasons on this issue was that often its conclusions were boldly stated without specific findings as to the supporting evidence - Since the bulk of the evidence to which detailed reference was made related to the neighborhood, as opposed to the City, and the conclusions were simply stated as being "in the neighborhood and in the City," it was hard to know whether the Board in fact directed its mind to applying the PPS 2005 policy based on the City as a whole, as opposed to just one small portion of the City - However, the Board did repeatedly refer to being satisfied as to the requirements being met for the City, so it did appear that the Board was at least aware that the test was required to be applied in that manner, rather than just within the neighborhood - The fact that the Board erred in stating the legal test to be applied with respect to PPS 2005 and the lack of fulsome reasons to support its conclusions about City-wide impact, gave the court some concerns as to the reasonableness of the Board's decision in this regard - See paragraphs 40 to 43.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 6].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 6].

London (City) v. Ayerswood Development Corp. et al. (2002), 167 O.A.C. 120; 34 M.P.L.R.(3d) 1 (C.A.), refd to. [para. 7].

Vincent v. Degasperis (2005), 200 O.A.C. 392 (Div. Ct.), refd to. [para. 7].

Woodglen & Co. v. North York and Building Inspector for North York (Uzumeri) (1984), 5 O.A.C. 313; 47 O.R.(2d) 614; 12 D.L.R.(4th) 146 (Div. Ct.), refd to. [para. 25].

Toronto (City) v. Goldlist Properties Inc. et al. (2003), 178 O.A.C. 11; 67 O.R.(3d) 441 (C.A.), refd to. [para. 25].

Concerned Citizens of King Township v. King (Township) (2000), 42 O.M.B.R. 3 (Div. Ct.), refd to. [para. 26].

Material Handling Problem Solvers Inc. v. Ontario (Minister of Municipal Affairs and Housing) (2002), 44 O.M.B.R. 364 (Mun. Bd.), refd to. [para. 26].

Toronto (City) v. Romlek Enterprises et al. (2009), 250 O.A.C. 368 (Div. Ct.), refd to. [para. 37].

Gray v. Disability Support Program (Ont.) (2002), 158 O.A.C. 244; 59 O.R.(3d) 364; 212 D.L.R.(4th) 353 (C.A.), refd to. [para. 38].

Kalin v. College of Teachers (Ont.) (2005), 198 O.A.C. 201; 75 O.R.(3d) 523 (Div. Ct.), consd. [para. 38].

Counsel:

Andrew Stikuts and Sharon Haniford, for the appellant;

Alan Dryer and Bryan Finlay, for the respondent.

This appeal was heard on July 16, 2009, by Chapnik, Ferrier and Molloy, JJ., of the Ontario Divisional Court. The following reasons for decision of the Divisional Court were delivered by Molloy, J., on August 11, 2009.