HOW LONG IS TOO LONG?

In Dickinson and Russell v. The City of Toronto (OMB File PL967756), the Ontario Municipal Board heard a motion pursuant to Section 43 of the Ontario Municipal Board Act under which the Board is empowered to hear an appeal with respect to one of its decisions if a manifest error has been made of such a magnitude that it warrants the decision being set aside. The Board has recognized that this remedy of self review is an extraordinary one and one that it will invoke sparingly and with the greatest care.

The Board in its 1997 decision, dismissed appeals to Bylaw 1997-0369 by Mr. Russell and Mrs. Dickinson. The two substantial properties in question were located in the Rosedale area of the City of Toronto. The City passed a number of interim control bylaws and then Bylaw 1997-0369 dealing with the vicinity within which the subject lands were located. The effect of the bylaw was to remove any prospect of residential development of the two properties and to sterilize them for development purposes.

The panel hearing the appeal (Members - S.W. Lee and B.W. McLoughlin) noted that the Ontario Municipal Board had a long standing tendency to ensure that private lands will not be transformed to public purposes such as open space or park by zoning instruments unless there is a concomitant commitment on behalf of the municipality to expropriate or acquire the lands in question.

The Board noted that the bylaw in question had the unmistakable effect of stripping the bundle of rights normally associated with land ownership, leaving only the paper title vested in the owners.

The Board also noted that:

"Where the health and safety of existing or future inhabitants are involved, where there are patent and imminent hazards to the well being of the community, the municipality should have the unfettered discretion to sterilize the use of lands, without the additional burden of compensation."

This is an important decision not only as an example of the Board’s decision to provide a remedy under Section 43 of the OMB Act, but in its determination to set aside a City bylaw freezing development where health and safety issues were not involved.

This article appears in the OEA FALL 1998 NEWSLETTER