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Book of Authorities of the City of Ottawa

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Book of Authorities of the City of Ottawa LPAT File No. PL180613 ENVIRONMENT AND LAND TRIBUNALS ONTARIO LOCAL PLANNING APPEAL TRIBUNAL PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, RSO 1990, c P. 13 BETWEEN: HADI SALMASIAN (Appellant) and 170 PRESTON LTD. (Applicant) BOOK OF AUTHORITIES OF THE CITY OF OTTAWA CITY OF OTTAWA Legal Services Department 110 Laurier Avenue West 3rd Floor Ottawa, ON K1P 1J1 Tel: (613) 590-2424 ext. 29521 Fax: (613) 560-1383 LSUC No. 62575V [email protected] Kristina Mahon Lawyer for the City of Ottawa Zaynab Al-waadh Student at Law TO: Dr. Hadi Salmasian 20 Chestnut Street Ottawa, ON K1S 0Z8 Tel: (613) 552-3652 [email protected] Dr. Hadi Salmasian Lawyer for the Appellant AND TO: LOCAL PLANNING APPEAL TRIBUNAL Suite 1500, 655 Bay Street Toronto, ON M5G 1E5 Tel: (416) 326-6775 Fax: (416) 326-5370 [email protected] Tomislav Saric Planner, Case Coordinator INDEX Table of Contents Description Tab Planning Act, R.S.O. 1990, CHAPTER P.13, Book of Authorities 1 Unger v. Onondage (Township), [1997] O.M.B.D No. 17 (OMB) (Q.L.) 2 Local Planning Appeal Tribunal Act Section 11(2) 3 Cuddy Chicks Ltd v Ontario (Labour Relations Board), [1991] 2 SCR 5 4 (SCC) R v Conway, 2010 SCC 22 5 Charter Constitution Act 1982 6 Miron v Trudel [1995] 1 SCR 358, 7 Corbiere v Canada (Minister of Indian and Northern Affairs) 8 Andrews v Law Society (British Columbia), [1989] 1 SCR 143 9 Withler v Canada (Attorney General), 2011 SCC 12 10 R. v. Kapp, [2008] 2 S.C.R. 483 (S.C.C.) 11 Local Planning and Appeal Tribunal Act, 2017, S.O. 2017, c. 23 section 12 15 R. v. 1676929 Ontario Inc., 2014 ONCJ 370 13 R. v. Pinehouse Plaza Pharmacy Ltd. (1991), 4 M.P.L.R. (2d) 1 (Sask. 14 C.A.) DeGasperis v Toronto (City) Committee of Adjustment [2005, On 15 SCDC] Vedova v. Port Stanley (Village) Committee of Adjustment, 1989 16 CarswellOnt 3493, 23 O.M.B.R. 53 (O.M.B.) Randal N. Graham, Statutory Interpretation: Theory and Practice, 2001 17 Emond Montgomery publications Rebelo v. Toronto (City) Committee of Adjustment (1991), 25 O.M.B.R. 18 477, 1991 CarswellOnt 5983 (O.M.B.) Toronto (City), Re, 1991 CarswellOnt 4376, 27 O.M.B.R. 1 (O.M.B.) 19 Toronto Standard Condominium Corp #1517 54 O.M.B.R. 102 2006 20 R v Nova Scotia Pharmaceutical Society,[1992] 2 SCR 606 21 TAB 1 TAB 2 Unger v. Onondaga (Township) Committee of Adjustment, 1990 CarswellOnt 3627 1990 CarswellOnt 3627 1990 CarswellOnt 3627 Ontario Municipal Board Unger v. Onondaga (Township) Committee of Adjustment 1990 CarswellOnt 3627 In the Matter of Section 52(8) of the Planning Act, 1983 In the Matter of an appeal by Josef Unger and Gerda Unger from the conditions imposed on a decision of the Committee of Adjustment of the Township of Onondaga whereby the Committee granted an application numbered B-8-88 In the Matter of Section 34(11) of the Planning Act, 1983 In the Matter of an appeal to this Board by Josef and Gerda Unger for an order amending Zoning By-law 705, as amended, of the Corporation of The Township of Onondaga to rezone the lands described as Part Lot 24, Concession 2, E.F.C. from Hazard Land to Agricultural II(A2) to permit the development of a single family dwelling Howden Member Judgment: November 23, 1990 Docket: C 880390, Z 890215 Counsel: P. Corliss, and B. Finnigan, for Township of Onondaga. L. Humenik, for J., and G. Unger. Subject: Public; Municipal Related Abridgment Classifications Municipal law XIV Subdivision control XIV.1 Severance of land XIV.1.a Consent to sever XIV.1.a.iv Conditions XIV.1.a.iv.C Miscellaneous Headnote Municipal law --- Subdivision control — Severance of land — Consent to sever — Conditions — General Table of Authorities Statutes considered: Planning Act, 1983, S.O. 1983, c. 1 Generally — referred to s. 34(11) — referred to s. 50(4)(c) — considered s. 50(4)(d) — considered s. 50(4)(g) — referred to s. 50(4)(h) — considered Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 1 Unger v. Onondaga (Township) Committee of Adjustment, 1990 CarswellOnt 3627 1990 CarswellOnt 3627 Decision of the Board: 1 This matter came to the Board originally as an appeal by the property owners, Josef and Gerda Unger, from one of the conditions imposed by the Committee of Adjustment of the Township of Onondaga. Their successful application for consent allowed the creation of a 1.3 hectare lot containing an existing dwelling at the north west corner of Big Creek Road (the Township Road which is assumed to be on an east-west axis) and County Road 22. According to a sketch (Exhibit 4) filed by Mr. Unger, this will leave a substantial retained lot with frontages on Big Creek Road of 118 metres west of the severed lot and on County Road 22 of 82 metres; and an area (taken from the Ungers' application) of approximately 29 hectares (72 acres). The appellants plan to sell or convey the new lot and build a new dwelling for their own use on the retained lot. The condition of concern to the appellants is one requiring the access point for any driveway serving the new house on the retained lot to be on Big Creek Road rather than County Road 22. 2 The reasons for appeal given by the appellants in their notice are: (i) the length of the driveway from the proposed site for the new house to the Township road would be over seven hundred feet, whereas the distance to the County road would be one hundred and fifty feet; (ii) construction of the driveway would necessitate removal of several hundred young trees with resulting damage to the natural environment; (iii) the longer driveway would be more difficult to maintain than the driveway to the County road; and (iv) few trees would require removal if access is permitted to the County Road. 3 The hearing of this appeal commenced on April 7, 1989. The appellants were represented by Mr. Humenik at that time, and counsel for the Township was Mr. Finnigan. As the evidence developed, it became clear to all that the proposed house site which was the source of much of the length of access problem, was included by an amendment (By- law 16-83, approved October 14, 1986) to the comprehensive zoning by-law within the westerly edge of a Hazard Lands (HL) zone extending across County Road 22 into the Ungers' land. It was clear that the Ungers' choice of site for the new home, could not be considered without either a zoning amendment by Township counCIl or an appeal to the Board under Section 34(11) if council refused the amendment. The consent condition appeal was rendered academic in these circumstances. 4 The rezoning of this land was also a condition of the Committee's decision. This is a somewhat remarkable disposition in view of the combination of the regard to be given to restrictions required by Section 50(4)(g) of the Planning Act, 1983 when a consent is considered and the Committee's express acceptance of the H L land as a building site and its requirement for access only to the Township road. However, neither the matter of the consent itself nor the lack of condition regarding an alternative building site and driveway route are before the Board. 5 Following submissions by counsel, the Board made the following disposition of April 7, 1989: After the hearing of evidence from the appellant and the Township, counsel for the appellants requested an adjournment to apply for a zoning amendment to the portion of the property proposed as the site of a future home. As the zoning is important to the condition under appeal, and the Township did not oppose this request, the hearing was adjourned sine die. Further notice to the above parties only is required. The continuation of this hearing may be heard together with an appeal under Section 34(11) of the Planning Act. Mr. Humenik is to advise when he is ready to proceed. 6 Subsequently, the Township refused the rezoning application. It should be recorded that the refusal was not based on the merits but for failure of the appellants to file a particular type of site plan requested by council. The appellants brought an appeal under Section 34(11), and that appeal together with the continuation of the appeal of the consent condition were scheduled together for June 18, 1990. The hearing failed to proceed on that date due to the failure to give Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 2 Unger v. Onondaga (Township) Committee of Adjustment, 1990 CarswellOnt 3627 1990 CarswellOnt 3627 the notice required by the Board for the zoning appeal. The hearing of both matters was finally completed on October 11, 1990. Mr. Unger and his son represented the appellants, and Mr. Corliss acted for the Township. The Township does not oppose the rezoning but it, the Ministry of Natural Resources and the County engineer oppose any revision to the consent condition to allow access to the County Road. 7 The Board has considered all of the evidence presented both in April 1989 and October 1990. There are four factors which affect this appeal: (i) the policies of the Township Official Plan which discourage access to designated collector roads, one being County Road 22; (ii) the policy of the County to discourage new entrances to County Road 22 and the concerns of its engineer, George Spencer, regarding traffic safety, given the degree of slope of the County Road down to the proposed access point and the increasing use of this road by heavy trucks from Nanticoke; (iii) the presence of a significant creek running along the entire frontage of the retained lot beside or partly within the County road allowance, any fill, culvert or other construction through which requires the approval of the Grand River Conservation Authority; and (iv) the presence on the portion where the driveway and home are proposed by the appellants of a high quality stand of hardwoods, and on the rest of the retained lot of a pine plantation whose condition now and into the future was the subject of some dispute between a witness from the Ministry of Natural Resources and Mr.
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