Toronto District School Board v. Toronto (City), 2014 ONSC 5494

• Judge: Then, Aston and Swinton, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: September 30, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONSC 5494;(2014), 329 O.A.C. 40 (DC)

Toronto School Bd. v. Toronto (2014), 329 O.A.C. 40 (DC)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. OC.016

Toronto District School Board (applicant/appellant) v. The City of Toronto (respondent/respondent on appeal) and Harbord Village Residents Association (intervenor)

(File No. 299/14; 2014 ONSC 5494)

Indexed As: Toronto District School Board v. Toronto (City)

Court of Ontario

Superior Court of Justice

Divisional Court

Then, Aston and Swinton, JJ.

September 30, 2014.

Summary:

A school board proposed to have a private company refurbish and operate a sports facility on school property. The 20 year agreement would give the school board exclusive use of the facilities for approximately 30% of the time (private use after school hours). Approval by the City of Toronto's Chief Building Official was denied as an impermissible use of school property under Bylaw 438-86. An exemption applied only if the school property was "used only for teaching or instructional purposes, including purposes accessory thereto". The school board appealed under s. 25 of the Building Code Act.

The Ontario Superior Court dismissed the appeal. The court interpreted the exemption as applying only where the school property was used for teaching or instructional purposes delivered by the school board and its employees or by those working on behalf of the school board. The school board appealed under s. 26 of the Act.

The Ontario Divisional Court dismissed the appeal. Although the court disagreed with the Superior Court's interpretation of the exemption, the decision that the exemption did not apply was amply supported by the evidence.

Land Regulation - Topic 2666

Land use control - Zoning bylaws - Permitted or discretionary uses - Recreational - A school board proposed to have a private company refurbish and operate a sports facility on school property - The 20 year agreement would give the school board exclusive use of the facilities for 30% of the time (private use after school hours) - Approval by the City of Toronto's Chief Building Official was denied as an impermissible use of school property under Bylaw 438-86 - An exemption would permit the proposed use if the school property was "used only for teaching or instructional purposes, including purposes accessory thereto" - The Ontario Divisional Court held that the exemption was not limited to situations where the teaching or instructional activities were delivered by teachers, other employees of the school board, or those acting on the school board's behalf - Municipalities had jurisdiction to adopt bylaws to restrict the "use" of property, but not the "user" - The Official's decision that the bulk of the use of the facilities would not include a teaching or instructional component was a reasonable finding of fact - It followed that the exemption could not apply where the use of the property was not "only" for teaching or instructional purposes - The proposed use was also not accessory to teaching or instructional purposes - The Official reasonably concluded that private recreational use of the facilities for approximately 70% of the time was not naturally and normally incidental to the teaching and instructional activities carried out by the school on the site, nor was it naturally and normally incidental to school use.

Land Regulation - Topic 2671

Land use control - Zoning bylaws - Permitted or discretionary uses - Accessory uses or buildings - [See Land Regulation - Topic 2666 ].

Municipal Law - Topic 1430

Powers of municipalities - Respecting land - Land use - [See Land Regulation - Topic 2666 ].

Cases Noticed:

Berjawi et al. v. Ottawa (City) et al., [2011] O.T.C. Uned. 236 (Sup. Ct.), refd to. [para. 18].

Ottawa (City) v. Chief Building Official of Ottawa (City) et al. (2003), 180 O.A.C. 48 (Div. Ct.), refd to. [para. 19].

Board of School Trustees of School District No. 61 (Greater Victoria) v. Oak Bay (District) (2006), 221 B.C.A.C. 254; 364 W.A.C. 254; 2006 BCCA 28, refd to. [para. 22].

Counsel:

Gordon Petch and Zaid Sayeed, for the applicant/appellant;

Kristen Franz and Nicholas Rolfe, for the respondent/respondent on appeal;

Tim Gleason and Sean Dewart, for the intervenor.

This appeal was heard on August 22, 2014, at Toronto, Ontario, before Then, Aston and Swinton, JJ., of the Ontario Divisional Court.

On September 30, 2014, Swinton, J., released the following judgment for the Court.