ent collected rent illegally and failed to
meet its maintenance obligations. There
were several appearances before the Board
and on Mar. 18, 2009, respondent gave
notice that it would bring a motion to
remove A, another tenant who had been
assisting appellant as representative. At the
hearing, appellant appeared with another
representative, N, and respondent sought
to amend its motion to exclude N as appellant’s representative. After N was cross-examined, the Board found that his ability
to represent appellant was completely inadequate and granted respondent’s motion to
remove him. The Board denied appellant’s
request for an adjournment and granted
respondent’s application.
HELD: Appeal allowed. There was no
basis in fact for appellant’s allegation of
reasonable apprehension of bias on the
part of the Board. Assuming the Board
acted reasonably in refusing to allow N to
appear, it was unreasonable for the Board
to refuse the adjournment. The Board
referred to the number of appearances in
the proceeding. It was clear that the reason for some of those appearances could
not be attributed to delaying tactics by
appellant. Appellant had attempted to
obtain representation and appeared with
N. He only sought an adjournment because
he required new representation. In denying the adjournment, the Board acted
unfairly and prevented appellant from a
fair opportunity to present his case.
Thomson v. Sisters of St. Joseph,
[2010] O.J. No. 1818, Ont. Div. Ct., per
Swinton J. (Greer and Cullity JJ. con-
curring), Apr. 26/10. Digest No. 3005-
017 (Approx. 5 pp.)
considered. The changes made to the
existing application were not extensive.
The vote on the prior motion for reconsideration did not also constitute a vote on
the adoption of the bylaw, such that council
was functus from that point onward.
Although the subsequent referral to the
department was unusual, the usual prescribed legislative procedure was followed
afterward to conclusion without loss of any
procedural rights. Any procedural deficiency was nothing more than an irregularity and did not render the bylaws invalid.
Virdis v. North Vancouver (City),
[2010] B.C.J. No. 808, B.C.C.A., per
Lowry J.A. (Smith and Bennett JJ.A.
concurring), May 05/10. Digest No.
3005-018 (Approx. 8 pp.)
PLANNING & LAND USE
school purposes by the Board. Respondent
intended to develop the land. The agree-
ment was conditional on the Board
obtaining a severance before the closing
date. There was not enough time for the
Board to obtain the severance so the clos-
ing date was extended to Jan. 31, 2005.
The Board’s severance application was
heard on Dec. 16, 2004. It was deferred as
premature because no development plan
was submitted with the application. The
Board refused to extend the closing date
further and declared the transaction to be
at an end. It returned respondent’s deposit.
The trial judge determined the Board
breached its obligation to use best efforts
to obtain the severance. The Board should
have advised respondent in a timely man-
ner that a development plan was needed,
and should have done more to communi-
cate with the planning authorities and the
municipal councillor. Respondent was
awarded $1,935,500 for lost profits.
DEVELOPMENT PERMITS – The
Utility and Review Board did not err in
allowing an appeal from the decision of
a municipal development officer to deny
a development permit to respondent.
Appeal by the municipality from a decision of the Utility and Review Board. The
Board allowed respondent’s appeal from
the municipal development officer’s denial
of a development permit to allow it to construct an eight-story seniors’ care facility
on its property. The municipal development officer concluded that the proposed
facility would have been too residential
and, in his view, was not permitted in that
particular zone. The Board said the
development was a hospital, church. or
other institution of a similar type, either
public or private, in the permitted uses for
the zone.
HELD: Appeal dismissed. The Board
considered the development officer’s stated
reasons and conclusion and explained why
the development officer’s pivotal factual
assumption was erroneous. The Board
applied the appropriate legal principles
and its conclusion was an acceptable outcome. The Board’s decision satisfied the
reasonableness standard of review. The
Board did not fail to consider the municipality’s land use bylaw’s definition of “
institution”. The Board’s conclusion that the
proposed assisted care units would not
have been self-contained and therefore
would have been outside the land use
bylaw’s definition of “apartment house”
was a reasonable deduction supported by
evidence. Similarly, the Board’s finding
that the proposed development would not
have been licensed was supported by evidence. The Board made no error in its
interpretation of the land use bylaw.
Halifax (Regional Municipality) v.
Anglican Diocesan Centre, [2010]
N.S.J. No. 254, N.S.C.A., per Fichaud
J.A. (Saunders and Hamilton JJ.A. con-
curring), May 04/10. Digest No. 3005-
019 (Approx. 16 pp.)
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BYLAWS – The appellate court
rejected appellant’s contention that
respondent city did not follow proper
procedures in passing two bylaws.
Appeal from the dismissal of appellant’s
petition to invalidate two bylaws adopted
by respondent city. The bylaws changed
the land use designation of six residential
properties to facilitate a development proposed by the lot owners. Appellant challenged the validity of the bylaws on procedural grounds. The bylaws were referred
to a public hearing following first reading.
Thereafter, the bylaws received a second
reading and a subsequent third reading,
subject to reconsideration. A motion for
reconsideration was defeated. Appellant
submitted that city council was functus
from that point onward on the basis that
the reconsideration vote also constituted
an adoption vote. However, after the
developers appeared before council, it
voted unanimously to refer the developers’
presentation the city community development department for discussion involving
area residents to explore potential options.
Appellant contended that there was no
legal authority for referral of the developers’ presentation to the department. The
bylaws were ultimately adopted. On
review, the judge found that any procedural deficiency in the adoption of the two
amending bylaws was no more than a procedural irregularity which was not fatal to
their validity.
HELD: Appeal dismissed. The bylaws
were validly adopted. There was no merit
to the contention that the changes submitted by the developers to the department
constituted a second application. Only one
development application was made and
HALTON SENIOR PRACTITIONER
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MARKHAM FIRM
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INTELLECTUAL PROPERTY
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BUSY MISSISSAUGA LAW FIRM
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SALE OF LAND
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AGREEMENT OF PURCHASE AND
SALE – While appellant breached the
agreement of purchase and sale by fail-
ing to obtain a severance of property,
respondent failed to mitigate its loss.
Appeal from judgment awarding damages to respondent for appellant Board’s
breach of a real estate contract. The Board
entered into an agreement of purchase
and sale to sell land to respondent. The
land was part of a larger parcel used for
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RE: ESTATE OF
JAMES ALVIN STEWART
Anyone having knowledge of the
location of a last will and testament
and/or codicil of James Alvin
Stewart, late of Deep River, Ontario,
who died at Deep River, Ontario,
on March 28, 2010, is requested to
contact George W. Le Conte Lawyer,
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River, On K0J 1P0 T: 613-584-3154
F: 613-584-4877.
LAWYER REQUIRED
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