Toronto (City) v. Romlek Enterprises et al., (2008) 241 O.A.C. 378 (DC)

• Judge: Janet Wilson, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: September 25, 2008
• Jurisdiction: Ontario
• Citations: (2008), 241 O.A.C. 378 (DC)

Toronto v. Romlek Ent. (2008), 241 O.A.C. 378 (DC)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. OC.091

City of Toronto v. Romlek Enterprises, Three R Auto Body, Highland Creek Community Association and Gregory McConnell

(236/08)

Indexed As: Toronto (City) v. Romlek Enterprises et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Janet Wilson, J.

October 10, 2008.

Summary:

The Ontario Municipal Board allowed an application by developers for four minor variances with respect to a proposed retirement residence with accompanying retail and parking located in Highland Creek Village, Scarborough, in the City of Toronto. The City of Toronto sought leave to appeal from the Board's decision. The City asserted that the application should have proceeded by way of a rezoning application and a request for an amendment to the Official Plan, not by way of minor variance.

The Ontario Divisional Court, per Janet Wilson, J., granted the City leave to appeal on five questions of law.

Land Regulation - Topic 2532

Land use control - Zoning bylaws - Variances - When available - [See Land Regulation - Topic 2533 ].

Land Regulation - Topic 2533

Land use control - Zoning bylaws - Variances - Procedure - The Ontario Municipal Board allowed an application by developers for four minor variances with respect to a proposed retirement residence with accompanying retail and parking located in Highland Creek Village, Scarborough, in the City of Toronto - The City of Toronto sought leave to appeal from the Board's decision - The City asserted that the application should have proceeded by way of a rezoning application and a request for an amendment to the Official Plan, not by way of minor variance - The Ontario Divisional Court, per Janet Wilson, J., granted leave to appeal on five questions of law, including whether the developers' application should have proceeded by way of an application for rezoning and Official Plan amendment pursuant to ss. 22 and 34 of the Planning Act, rather than a request for a minor variance in accordance with s. 45(1) of the Act, and whether the Board erred in failing to apply the appropriate test for a minor variance - There was good reason to doubt the correctness of several aspects of the Board's decision - The case raised significant issues with respect to the proper interpretation of the new Official Plan, as well as the relationship between local zoning and the Official Plan - The issues were of city-wide public importance.

Land Regulation - Topic 4145

Land use control - Appeals to the courts - Leave to appeal - On question of law - [See Land Regulation - Topic 2533 ].

Cases Noticed:

Juno Developments (Parry Sound) Ltd. v. Parry Sound (Town) et al. (1997), 99 O.A.C. 95 (Div. Ct.), refd to. [para. 7].

Toronto Transit Commission et al. v. Toronto (City) et al. (1990), 42 O.A.C. 20; 2 M.P.L.R.(2d) 42 (Div. Ct.), refd to. [para. 7].

Doucette (Fred) Holdings Ltd. v. Waterloo (City), [1997] O.J. No. 6292 (Div. Ct.), refd to. [para. 27].

Perry v. Taggart, [1971] 3 O.R. 666 (H.C.), refd to. [para. 27].

Vincent v. Degasperis (2005), 200 O.A.C. 392 (Div. Ct.), refd to. [para. 28].

Toronto (City) v. 2059946 Ontario Ltd. et al. (2007), 228 O.A.C. 143 (Div. Ct.), refd to. [para. 38].

Statutes Noticed:

Planning Act, R.S.O. 1990, c. P-13, sect. 45(1) [para. 26].

Counsel:

Robert A. Robinson and Kirsten Franz, for the appellant/moving party;

Alan B. Dryer and Adam J. Brown, for the respondents, Romlek Enterprises and Three R Auto Body;

Edward R. Fleury, Q.C., for the respondents, Highland Creek Community Association and Greg McConnell.

This application was heard on September 25, 2008, at Toronto, Ontario, before Janet Wilson, J., of the Ontario Divisional Court, who delivered the following endorsement on October 10, 2008.