SCJ finds that Ontario Municipal Board decisions do not prevent claimants from seeking remedies in civil courts
On February 22, 2011 Justice G.R. Strathy of the Superior Court of Justice released his decision on the issue of res judicata and abuse of process (re-litigation of similar issues) as it applies to previous decisions made by the Ontario Municipal Board (OMB).
The Plaintiffs, represented by Donnelly Law, are claiming damages for nuisance due to ponding and flooding occurring on their property. They are claiming that ponding and flooding is a result of disturbance of grading in the backyard due to the construction of a concrete embankment and gazebo by their neighbours.
The Defendants, represented by Cassels Brock & Blackwell LLP, claimed that the Plaintiffs’ action was res judicata as the Plaintiffs had unsuccessfully appealed the granting of a minor variance allowing the gazebo by the City of Toronto to the OMB. The Plaintiffs subsequently launched an action for nuisance against their neighbours as they were experiencing flooding and ponding in their backyard.
David Donnelly, arguing on behalf of the Plaintiffs in court, argued that no person should have to give up their right to bring a claim to the civil courts if they first go to the OMB where there is no opportunity for an award of damages.
Justice Strathy agreed and found that the Plaintiffs claim does not constitute res judicata or abuse of process. The OMB’s jurisdiction and decisions are limited to land-use planning matters.
In his decision Justice Strathy stated:
It would be passing strange if a structure that did not comply with the by-law could be immunized from civil suit by virtue of the granting of a "minor" variance. It would be equally strange if the approval of a minor variance by the OMB had the effect of authorizing the commission of a nuisance. It would be an extraordinary state of affairs in my view, if an objector at an OMB hearing were to lose its civil rights, in this case the right to claim damages for nuisance,
…if its evidence and arguments against a minor variance were to be rejected [...] It does not undermine the integrity of the adjudicative process of the COA (Committee of Adjustments) or of the OMB to say that findings of fact made by these tribunals in relation to planning issues within their jurisdiction are not determinative of liability in subsequent civil proceedings. On the contrary, it simply recognizes the limits of the sphere of responsibility of these bodies.
Had I found that issue estoppel applied, I would have exercised my discretion to refuse a stay... It would be entirely unjust, in my view, to deprive the Jains of a civil remedy simply because they objected to their neighbour's application for a minor variance.
See a link to the decision here: Jain v. Valani 2011 ONSC 1156