On October 23, 2023, the Ontario Divisional Court (the “Divisional Court”) issued its decision in Loeb v. Toronto (City) (the “Decision”).[1] The Divisional Court made several findings with respect to the standing of third-party participants in a minor variance application to seek judicial review from Committee of Adjustment decisions and opined on the level of fairness owed to participants in a minor variance hearing.
BACKGROUND
The Respondent Yan Liu owns a property on Heath Street West in Toronto (the “Property”). The Applicants, Audrey Loeb, David Ross and Noreen Taylor, are the Respondent’s neighbours. Ms. Loeb and Mr. Ross live on the lot to the south of the Property and share a rear lot line with the Respondent. Ms. Taylor’s property is across the street from the Property.
In 2020, the Respondent applied for 12 minor variances to facilitate the construction of a 2.5-storey, single detached, multi-generational dwelling with an integrated garage and a partially enclosed rear deck on the Property. The Committee refused the initial application and the Respondent appealed the refusal to the Toronto Local Appeal Body (“TLAB”).[2]
The Respondent amended the original application before the TLAB to reduce the density, height, length, and depth of the proposed home. The Applicants opposed this proposal before the TLAB. In 2022, the TLAB dismissed the Applicant’s revised application.
Later in 2022, the Respondent submitted another application for six minor variances to the zoning by-law applicable to the Property, namely: maximum density, building length, depth, height, floor height, and platform floor height (the “Application”).
While the Application was pending, the More Homes Built Faster Act, 2022 (“Bill 23”) [3] came into force and amended the Act to remove the statutory right of appeal of third parties to a minor variance decision of the Committee. In particular, only the applicant, the local municipality, the Minister, prescribed public authorities, and “specified persons” as defined in the Planning Act, may appeal a committee of adjustment decision on a minor variance application to the Ontario Land Tribunal or the TLAB, as the case may be. The hearing was scheduled for February 15, 2023, but Ms. Loeb and Mr. Ross were on vacation when the notice was delivered. The Applicants asked the Committee for a deferral in writing and in person, which the Committee refused. The Applicants also submitted written materials from a land-use planner.
Toronto’s Committee of Adjustment (the “Committee”) conducted virtual hearings at the time of the Respondent’s application. The Committee’s hearings are streamed live on Youtube and remain accessible for viewing on the City of Toronto’s Youtube page. The Committee heard from the Respondent’s agent, and two representatives of the Applicants. The Committee approved the application at the hearing.
After the hearing in 2023, the Committee issued a brief written decision stating that the Application met the four tests in Section 45(1) of the Planning Act (the “Approval”), subject to three conditions.
As the Applicants were not “specified persons”, the Applicants could not appeal the Approval to the TLAB. The Applicants filed a judicial review application to the Divisional Court, alleging that the Committee denied them procedural fairness in various respects and for failing to provide satisfactory written reasons, in accordance with Section 45(8.1) of the Planning Act.[4]
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