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Claim of Unlawful Discrimination By City Rejected by Ontario Municipal Board in Minor Variance Decision/Variance Allowed Despite Construction without a Permit

Sep 04, 2013

In a decision issued on July 18, 2013, the Ontario Municipal Board (the “Board”) considered whether refusal to grant a minor variance would result in a breach of the Canadian Charter of Rights and Freedoms, the City of Toronto Housing Charter, or the City of Toronto Human Rights and Anti-Harassment Policy or constitute unlawful discrimination under the Ontario Human Rights Code.  

Background

The owners of No. 38 Brunswick Avenue  in downtown Toronto, being one half of a semi-detached dwelling, built a two-storey rear addition without a building permit.  The City took enforcement action and issued and order to comply.  In 2008 the owners applied for three variances to recognize the existence of the illegal addition, two of which were to reduce the side setbacks to 0 metres and the third to allow a building depth of 24.64 metres where 14 metres was permitted. The Committee of Adjustment refused the variances and the owners appealed to the Board.

At the Board hearing the owners refused to submit evidence to the Board regarding the planning merits of the application citing a denial of natural justice. The basis of the claim was that the City had failed to properly date the Affidavit of Documents and had used wording not set out in the Rules of Civil Procedure.  The Board had previously ordered that the Rules would govern the exchange of documents to ensure efficiency at the hearing.  The owners also made an allegation of bias against the Board member demanding recusal which was denied.

Based on the City’s uncontroverted evidence that the requested variances resulted in overdevelopment of the property and a reduction in privacy, light and views, and increased shadowing to the adjacent property, the Board denied the variances. The Board held in Tseng v. Toronto (Municipality) [2008] O.M.B.D. No. 1175 that the subject property was overbuilt resulting in an adverse effect to the rear amenity areas of both the subject and adjacent properties.

The owners sought leave to appeal from the Board’s decision and in 2009 the Divisional Court denied the leave and held in Tseng v. Toronto (City) 2009 CanLII 73280 that although the Board had made an error by misidentifying one of the requested variances, it had already corrected the error by issuing of an amending order.  On the question of bias, the court held that the allegation was without merit.  The court noted that the owners gave up the right to attack the merits of the Board’s decision when they left the hearing without presenting evidence. The Divisional Court’s decision was appealed to a full panel of that court which denied the appeal issuing its decision on January 7, 2011 (Tseng v. City of Toronto, 2011 ONSC 191). 

On January 6, 2011, the day before the full panel of the Divisional Court issued its decision denying the appeal, the house was transferred to a sister of one of the previous owners.  On February 1, 2011 the City put the new owner on notice that it would bring an application in Superior Court for an order requiring removal of the addition pursuant to the Building Code Act unless the owner commenced to remove the illegal addition by February 25, 2011.  The owner did not commence removal and on March 3, 2011 an application was issued.  In response to the City’s application, the owner brought two motions, one for an order setting aside service, the other for an order that the application was statute barred. Both motions were denied. (Toronto (City) Chief Building Official v. Tseng, 2011 ONSC 4594

2013 Application for Minor Variance

In 2013 the new owner applied to the Committee of Adjustment for two minor variances to recognize the illegal addition. One variance was for a reduction of the  side yard setback requirement from 0.45 metres to 0 metres and the second to allow a building depth of 23.76 metres where a maximum of 14 metres was permitted.  These were refused and then appealed to the Board by the new owner.

The new owner submitted evidence at the hearing of her appeal that one room of the addition was used by her father several times daily for prayer arguing that the consideration of the variance engaged Section 2 of the Canadian Charter of Rights and Freedoms (the “Charter”) dealing with freedom of religion. The owner also argued that denial of the variance would result in a denial of health care engaging Section 7 of the Charter concerning the right to life, liberty and security of the person and a forced eviction resulting in cruel and unusual punishment engaging Section 12 of the Charter. 

The owner also argued that the City’s enforcement action was constructive discrimination under the Ontario Human Rights Code (the “Code”) and that denial of the variance would result in a breach of City of Toronto Housing Charter (the “Housing Charter”) which states that residents should be able to live in the neighbourhood of their choice without discrimination.  Finally, the owner also argued that the City was in breach of its duty to accommodate under the City’s Human Rights and Anti-Harassment Policy.

Findings of the Board

Canadian Charter of Rights and Freedoms/Human Rights Issues

The Board found that owner’s father could pray in other rooms of the house that were not part of the addition and denied the claim that his freedom of religion under Section 2 of the Charter would be breached if the variance was denied. The Board also found that denial of the variance would result in neither a denial of health care under Section 7 of the Charter nor a forced eviction resulting in cruel and unusual punishment under Section 12 of the Charter because the owner’s parents would be able to remain in the house.

On the question of constructive discrimination under the Code as result of enforcement action, the Board found that the action was directed against the physical non-compliance of the premises rather than the living arrangements of the occupants who were not being treated differently by virtue of any prohibited ground of discrimination. The Board also found that since the owner’s parents could remain in the house, there was no discrimination under the Housing Charter because they are free to live in the neighbourhood of their choice.  The Board also denied that the City had a duty to accommodate the parents with respect to their residence as it was not providing living accommodation under the City’s Human Rights and Anti-Harassment Policy.

Planning Issues/Effect of Building without a Permit

As to the effect of the illegal construction, the Board noted as follows:

The fact that the structure for which the variances are being sought has already been built does not constitute an advantage or a disadvantage to either side in this dispute, either to have the Board authorize the variances or to have the Board deny the variances. The tests in s. 45(1) of the Act remain the same and it is those tests that the Board must apply in reaching its decision. The one element that does change when a structure is already built is that the impact of the requested variances becomes a known circumstance rather than a matter of informed inference.

With respect to the planning merits of the minor variance application, the Board allowed the appeal and granted the variances.  After reviewing the local circumstances, it found that the height, massing and scale of the rear addition generally fit the pattern of rear additions in the neighbourhood.  The Board found that there would be some reduction in sunlight and increased shadowing on 40 Brunswick (not the paired semi which is 36 Brunswick) but that it was acceptable noting that some loss of sunlight and increase in shadow was insufficient to deny the variance.  The Board did not agree that a loss of privacy would result from the increased building depth noting that there were no overlooking windows or deck over 40 Brunswick and other properties in the neighbourhood already had roof decks creating an intrusion to privacy into adjacent backyards; all of which formed part of the neighbourhood pattern. As to the effect on No. 36 Brunswick, the Board noted that the backyard which would be overlooked by windows in No 38 Brunswick was used for car parking.

It appears that neither adjacent owner appeared at the hearing.  As to their non-appearance the Board noted:

The City's planning witness took the position that impact should not be judged by whether or not the adjacent owner or residents at 40 Brunswick Avenue objected to the requested variances. Rather, the City's planning witness testified that the Board should consider the possible impact on future owners or residents who may wish to make different use of the rear rooms of the house at 40 Brunswick Avenue or enjoy greater sunlight and less shadowing on the rear yard.

Since the immediate neighbours to the north in the other half of the semi-detached structure did not appear in these proceedings, the Board concludes nothing more than that they elected not to appear. The Board has no evidence for the reason for non-appearance and makes no finding on whether the reason for non-appearance is that the neighbours are satisfied with the addition and do not oppose the variances.

By the same token, however, the Board is not persuaded by some hypothetical possible future preference for a different level of shadowing or use of the rear yard amenity space by some hypothetical future residents of properties adjacent to 38 Brunswick Avenue.


Author(s): Peter Gross

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