Toronto (City) v. Romlek Enterprises et al., (2009) 250 O.A.C. 368 (DC)

• Judge: Swinton, Low and Karakatsanis, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: April 03, 2009
• Jurisdiction: Ontario
• Citations: (2009), 250 O.A.C. 368 (DC)

Toronto v. Romlek Ent. (2009), 250 O.A.C. 368 (DC)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. JN.066

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

(236/08)

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

Court of Ontario

Superior Court of Justice

Divisional Court

Swinton, Low and Karakatsanis, JJ.

May 25, 2009.

Summary:

The respondents applied for four minor variances pursuant to s. 45(1) of the Planning Act to permit the construction of a three storey apartment-style retirement home in the Highland Creek Community area of Scarborough. The Committee of Adjustment of the City of Toronto refused the application. The Ontario Municipal Board allowed an appeal and authorized the four minor variances. The City sought leave to appeal from the Municipal Board's decision.

The Ontario Divisional Court, per J. Wilson, J., in a decision reported at (2008), 241 O.A.C. 378, granted leave to appeal.

The Ontario Divisional Court allowed the appeal. The Municipal Board's decision to grant the minor variances was unreasonable, given its failure to properly apply the test in s. 45(1) of the Act and its interpretation of the Official Plan and the zoning bylaw. The Municipal Board's order was set aside, and the respondents' appeal from the decision of the Committee of Adjustment was dismissed.

Land Regulation - Topic 2532

Land use control - Zoning bylaws - Variances - When available - The respondents applied for four minor variances pursuant to s. 45(1) of the Planning Act to permit the construction of a three storey apartment-style retirement home - The Committee of Adjustment of the City of Toronto refused the application - The Ontario Municipal Board allowed an appeal and authorized the four minor variances - The City appealed - The Ontario Divisional Court allowed the appeal - The Board's decision was unreasonable - The court stated that "the Board made errors of law by failing to properly apply the test under s. 45(1) of the Act. It failed to give proper consideration to the general intent and purpose of the zoning by-law and failed to properly interpret and apply the applicable Official Plan policies. As well, it failed to consider whether the variances, taken as a whole, were minor, given the degree to which they departed both from the Official Plan and the zoning by-law. As a result, its decision cannot be said to fall within a range of possible, acceptable outcomes" - See paragraph 30.

Land Regulation - Topic 2532

Land use control - Zoning bylaws - Variances - When available - The City of Toronto appealed from a decision of the Ontario Municipal Board which authorized four minor variances to permit the respondents to construct a three storey apartment-style retirement home - The Ontario Divisional Court allowed the appeal - The Board failed to give reasons explaining why the variances granted were properly considered minor - It proceeded on the basis that it could accept the opinion evidence of the respondents' planner to that effect and treat this issue as a factual matter to be decided on the basis of expert evidence - That in itself was an error, as it was the Board's duty to interpret the Official Plan and bylaw instruments - Most importantly, the Board failed to indicate why permitting a residential use in an area not zoned for residential was minor, as this was a significant alteration of the use of the land - Moreover, the Board failed to indicate why an increase in density from 37 units per hectare to 268 units per hectare and an increase in lot coverage from 40% to 205% were minor - The proposed use was not permitted by the zoning bylaw, and the proposed development departed significantly from the density cap in the Secondary Plan and the coverage provision in the bylaw - Viewed cumulatively or individually, these variances could not reasonably be said to be minor - See paragraphs 46 to 50.

Land Regulation - Topic 2532

Land use control - Zoning bylaws - Variances - When available - The City of Toronto appealed from a decision of the Ontario Municipal Board which authorized four minor variances to permit the respondents to construct a three storey apartment-style retirement home - The Ontario Divisional Court allowed the appeal - The Board's decision was unreasonable because it failed to consider the general intent and purpose of the zoning bylaw and it erred in its interpretation of the bylaw - The court stated that "First, in determining whether a proposed minor variance maintains the general purpose and intent of the zoning by-law, the Board must consider the existing by-law, regardless of its age. Therefore, by giving less weight to the zoning by-law because it was adopted in 1972, the Board erred in law. Second, by the terms of s. 45(1) of the [Planning] Act, the compatibility of the variance with the general intent and purpose of the zoning by-law is a separate consideration from compatibility with the intent and purpose of the Official Plan. Therefore, the Board erred in weighing one against the other and giving greater weight to the Official Plan. Third, the Board erred in equating a residential use with the hotel/motel use in the Highway Commercial zone explicitly permitted by the zoning by-law ... Furthermore, the Board failed to consider the provision in the zoning bylaw restricting the gross floor area of all buildings to 40% of the lot area ... the Board was required to determine the general intent and purpose of the zoning by-law, including the restriction on coverage. Instead, it approved coverage of 205% of the lot area without considering the by-law limitation and its intent and purpose. That was unreasonable" - See paragraphs 37 to 45.

Land Regulation - Topic 2532

Land use control - Zoning bylaws - Variances - When available - The City of Toronto appealed from a decision of the Ontario Municipal Board which authorized four minor variances to permit the respondents to construct a three storey apartment-style retirement home - The Ontario Divisional Court allowed the appeal - Before approving a minor variance, the Board had to be satisfied that the variance maintained the general intent and policy of the Official Plan - The Board failed to consider and apply Policy 5.6 of the Official Plan, which stated that in case of conflict, the policies of the Secondary Plan would prevail - Although the Official Plan did not impose any density restrictions on the uses permitted, the Secondary Plan included a density cap of 37 units per hectare for residential uses - The Board was required to give precedence to that density limit, but it did not so do - Rather, it gave approval for a residential development with a density of 268 units per hectare - Moreover, the Board gave an unreasonable interpretation to the density limit in the Secondary Plan - It accepted the view of the respondents' planner that this limit applied only to grade-related development such as semi-detached and townhouse developments - The proper interpretation of the Official Plan and the Secondary Plan was not a factual matter to be decided based on opinion evidence from planners, but rather a question of law - The Board was required to interpret these documents itself - The interpretation that the Board accepted, that the density limit would not apply to the mixed residential use proposed, was not consistent with and was not a reasonable construction of the Secondary Plan - The Board's decision was, therefore, unreasonable: first, because it failed to give priority to the Secondary Plan as required; and second, because it entailed a substantial departure from the density limit for residential use in the Secondary Plan and was, therefore, inconsistent with the general intent and purpose of the Official Plan - See paragraphs 31 to 36.

Land Regulation - Topic 2555

Land use control - Zoning bylaws - Appeals to appeal board - Duties of board - Evidence - [See second and fourth Land Regulation - Topic 2532 ].

Land Regulation - Topic 3345

Land use control - Official or development plans - Effect of - [See fourth Land Regulation - Topic 2532 ].

Land Regulation - Topic 4143

Land use control - Appeals to the courts - Scope of appeal - The respondents applied for four minor variances pursuant to s. 45(1) of the Planning Act to permit the construction of a three storey apartment-style retirement home - The Committee of Adjustment of the City of Toronto refused the application - The Ontario Municipal Board allowed an appeal and authorized four minor variances - The City appealed from the Municipal Board's decision - The Ontario Divisional Court stated that as the application of s. 45(1) engaged the planning expertise of the Board, the standard of review of reasonableness applied in the appeal - See paragraphs 24 to 26.

Cases Noticed:

London (City) v. Ayerswood Development Corp. et al. (2002), 167 O.A.C. 120 (C.A.), refd to. [para. 25].

Vincent v. Degasperis (2005), 200 O.A.C. 392 (Div. Ct.), refd to. [para. 25].

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. 26].

Toronto (City) v. 2059946 Ontario Ltd. et al. (2007), 228 O.A.C. 143 (Div. Ct.), refd to. [para. 34].

Fred Doucette Holdings Ltd. v. Waterloo (City), [1997] O.J. No. 6292 (Div. Ct.), refd to. [para. 46].

Statutes Noticed:

Planning Act, R.S.O. 1990, c. P-13, sect. 45(1) [para. 16].

Counsel:

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

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

This appeal was heard on April 3, 2009, at Toronto, Ontario, before Swinton, Low and Karakatsanis, JJ., of the Ontario Divisional Court. The following judgment of the Divisional Court was delivered by Swinton, J., and was released on May 25, 2009.