An Ottawa homeowner trying to prevent a condo development in his neighbourhood is challenging provisions in the Planning Act that allow developers to turn single-story houses into three-storey apartment complexes as unconstitutional.
Dr. Hadi Salmasian argues that the use of applications for minor variances to zoning bylaws is unconstitutional, violating the doctrine of vagueness and his s. 15 Charter rights guaranteeing equality under the law.
These minor variances are being systematically abused and used as a “development tool,” says Denis Rancourt, co-ordinator of the self-represented litigants working group at the Ontario Civil Liberties Association. The OCLA is assisting Salmasian with legal research and litigation logistic support.
In Salmasian’s notice of constitutional question, he states the development is “at odds with the dominant character of the neighbourhood and of the city block, which consists of one- and two-storey, detached single-family dwellings.”
Salmasian was advised by the OCLA that he could challenge the minor variance provision on constitutional grounds.
“This is how neighbourhoods get devastated by developers is through this minor variance abuse,” Rancourt says.
Rancourt says Ontario’s minor variance provisions don't define "minor," which allows the committee “free reign” to determine what is minor. Rancourt says developers use the minor variance provision as a “planning tool” to make major changes to dwellings, which in turn impose major changes to the character of the neighbourhood.
The developer, 170 Preston LTD., applied to Ottawa’s Committee of Adjustments to demolish a one-storey home and build a three-storey, three-unit apartment. Salmasian filed a notice of constitutional question, which was heard June 6, and the committee dismissed Salmasian’s objections and refused to hear the constitutional question, authorizing the minor variance application.
Salmasian appealed to the Local Planning Appeal Tribunal and is arguing that the tribunal lacks jurisdiction over the matter. His case will be heard by the tribunal on Oct. 3.
The variances sought by 170 Preston LTD. were to a bylaw meant to prevent properties from being used as rooming houses.
170 Preston LTD. is represented by Emma Blanchard of Borden Ladner Gervais LLP. In a letter to the Local Planning Appeal Tribunal, Blanchard states that the constitutional issues are beyond the tribunal’s jurisdiction and that at the committee stage, counsel for the City of Ottawa advised the same.
“Our principle concern is that time not be lost,” Blanchard wrote. “The Appellant, in his Notice of Appeal, focuses on constitutional, Charter and jurisdictional arguments. There are no issues raised relating to the minor nature of the variance sought or to the general intent and purpose of the Zoning By-law and official plan.”
“We ask that the LPAT consider a direction that the hearing shall be restricted to the issue of appropriate development.” Blanchard continues to request that constitutional appeals not be heard by the tribunal and be directed to the Superior Court.
Blanchard did not respond to Legal Feeds’ request for comment.
Laws that are vague are invalid because they fail to provide citizens with fair notice and increase the state’s discretionary power, wrote Marc Ribeiro in "The vagueness doctrine in Canadian constitutional law: a balanced approach."
“If you're going to start constraining people's rights, then you have to spell out under what condition you can do that,” says Rancourt.
He says other provinces articulate how neighbours are to be protected from these minor variances.
“Ontario has no safeguards of that type. So the Ontario provision is virtually unique in Canada,” he says.
“The jurisprudence in terms of what these committees and tribunals are doing has gone the way of basically allowing anything,” he says.
Salmasian included statistics on minor variance applications in a submission made to the LPAT. From June 2015 to August 2017, in wards 15 and 17, 98 and 94 per cent of variance applications were granted and the vast majority of the 249 variance applications city-wide during that period were granted.
“So it shows how the system has evolved toward a situation where this provision is being used basically as a planning tool, which was not the historical or jurisprudential intent of this provision,” Rancourt says. “So it's gotten out of hand and the only way to ratchet it back is to directly challenge the provision itself.”
Salmasian will also argue that allowing a minor variance to a zoning bylaw goes against his s.15 Charter rights in two ways. On one hand, those living immediately around the development are unfairly subject to the nuisance caused by the development, whereas others in the ward are not. The other stream of the s.15 issue is that the minor variance allows one party not to follow the bylaw, while Salmasian is still governed by that bylaw and thus they are not equal under it.
“We want to put an end to this,” Salmasian says. This is just providing an opportunity for a developer to make more money at the expense of a deteriorating neighbourhood turning into a less desirable place for the people who are currently living there.”