Central Tech students rally along Bloor street on October 12 calling for
action to get their playing field back in action.
BRIAN BURCHELL/GLEANER NEWS

Question of city authority to rule on application hung in balance

By Brian Burchell

The fate of the plan to put artificial turf and a dome on the Central Tech field was again in the hands of the courts. The Toronto District School Board (TDSB) had appealed the June decision of the Superior Court and has lost again at divisional level. This decision confirmed the right of the city’s building officials to rule what does or does not require a variance application for commercial development of school board lands.

The appeal was heard on August 22nd at Osgoode Hall by three Divisional Court justices. Gordon Petch, the lawyer in the matter for the TDSB, declined to comment until after the court decision and did not fulfill a request to provide the position it advanced at the appeal proceeding. Subsequent to the failed appeal bid, Petch did not respond to a request from the Gleaner for comment. The Harbord Village Residents’ Association (HVRA) was granted intervener status at the appeal, over the objections of the TDSB. Divisional Court Justice Ian Nordheimer had ruled on August 5th that the local impact of the dome project should be part of the information laid before the court.

The TDSB decision to pursue a legal challenge to the City of Toronto’s authority over its commercial development proposal is unusual. Normally, those whose development proposals are opposed by the city appeal to the Ontario Municipal Board (OMB). The avenue of the OMB remains open to the TDSB, and indeed this process was started and then stopped when the legal action was initiated.

Chris Bolton, a school board trustee and TDSB chair, resigned suddenly in June. This triggered a process to select an interim trustee. Briony Glassco was chosen to serve out Bolton’s term. Ms. Glassco also declined comment on the matter.

The Gleaner has obtained the arguments advanced by the TDSB and by the city at the appeal proceeding. At the heart of the TDSB position was that it is “as of right” able to proceed with the plan with no variance to the restrictive by-law required. Trustee Glassco wanted the TDSB to proceed with development ahead of the appeal ruling and tried to make a motion at a meeting on September 12th forcing TDSB staff to consummate the deal to proceed with the development. Upon hearing advice from the board’s lawyer the chair ruled the motion out of order. On September 8th, Glassco had distributed a newsletter which included a “Central Tech Championship Field Timeline”. Inexplicably, the timeline omits the very court proceeding and unsupportive decision that the TDSB is appealing.

One key issue before the appeal court is whether or not a variance is required when the “user” is not the school but the school board itself.

In this case, the TDSB proposes that Razor Management would be the developer and operator of the site for twenty-one years, using the site as a rental facility outside of school hours and all summer.

The TDSB argued that the “use” for “teaching or instruction” (required in the by-law) would be effectively fulfilled by Razor and that the city is mixing up “user” and “use”, when only the latter matters. Furthermore, the TDSB argued that the proposal falls within the “accessory use” exemption of the by-law a point it feels the initial court ruling did not accurately address.

The city disputed the notion this is confusing with words “use” and “user”. In the city’s submission to the appeal proceeding, it quotes the application made by Razor Management, done under the authority of the TDSB: “the existing soccer field is currently zoned for school use only. We are proposing a change of use [emphasis added] to allow outside private community user groups to the sports field after hours (local soccer clubs, academies).”

The TDSB argues that if the proposal fails the by-law test that school board lands be used “only for teaching and instructional use” then it ought to be regarded as an “accessory use”, which is exempted in the by-law. The city in rebuttal recalled the Chief Building Officer’s (CBO) initial determination which observed that “the proposed use was as a private recreational facility and would operate as such 70% of the time. Such a use could not be considered incidental to, or subordinate to, teaching or instructional purposes.” Justice Corbett, whose ruling the TDSB is appealing, concurred with the CBO’s assessment and added that “the proposal could not be considered accessory or incidental to the principal use of the lands because it would change the overall nature of the use of the premises as a school.”

While the parties awaited the Divisional Court’s ruling on the appeal, the HVRA has filed numerous freedom of information requests with the TDSB seeking disclosure of environmental assessments (related to the contamination of the field), contracts (with the proposed developer and operator Razor Management), and tender requests (including contamination amelioration).