City’s right to declare what requires a bylaw variance upheld

By Brian Burchell

The Toronto District School Board (TDSB) has lost another round in the fight to lease the Central Tech- nical School field to a commercial operator who would apply artificial turf and a dome for winter use.

Superior Court Justice D.L. Cor- bett released his decision June 13, 2014, rejecting the TDSB’s argu- ment that since the proposed Cen- tral Tech dome project would be on school land it was educational and therefore should be exempt from city zoning bylaws. Justice Corbett ruled that the chief building official of the City of Toronto did have the authority to identify the commer- cial development of the Central Tech field as requiring a zoning vari- ance.

In the May edition of the Annex Gleaner (see “Dome plan goes to court) it was reported that the

TDSB had taken the unusual step of seeking a court order to limit the City’s right to require the board to seek a minor variance of a bylaw. The TDSB had lost its application in March to lease the Central Tech field to a commercial operator, who planned to apply artificial turf and build a dome over the field, for 21 years at the City’s Committee of Adjustment. Then the TDSB chose to challenge the city’s requirement for it to have to apply for the bylaw variance in the first place.

Tim Grant, the chair of the Har- bord Village Residents’ Association, told the Gleaner “this strategy of using the courts instead of the On- tario Municipal Board excludes third parties like residents’ associa- tions, and I am beginning to think that for the TDSB it’s too delicious a prospect to get the courts to tell the City it has no jurisdiction over school board lands, they will just

keep funding the legal strategy as far as possible. I wonder if this is no longer about Central Tech specifi- cally. It’s too bad they don’t just take that funding, fix the field, and get on with it.”

At the heart of the TDSB’s posi- tion is that the city bylaw is too vague. It permits commercial use of school property by renting space for community meetings and Scout groups for example, even if those uses are not “educational”. But, when the board wants to allow a commercial operator to build a dome on the field that actually does allow for some educational use, the City says it needs to seek an exemp- tion to the bylaw.

Justice Corbett rejected the TDSB’s line of reasoning as follows: “Commercial exploitation of TDSB facilities is not a ‘school use’ of TDSB premises. This does not mean that commercial exploitation of TDSB facilities is never permis- sible under the Exemption. The City interprets the Exemption to permit incidental use of school premises for purposes other than education or instruction by the TDSB, so long as the basic charac- ter and nature of the school use of the facilities is unchanged. Where the intensity of this non-TDSB use rises above incidental, then it is no longer within the Exemption. This court need not decide precisely where to draw the line for permissi- ble ‘incidental use’ by persons other than the TDSB. This is a matter for the City to decide on a case-by-case basis, so long as its decisions are rea- sonable.