Court sides with Beach resident in OMB ruling appeal

A BEACH resident is no longer on the hook for legal costs stemming from a failed appeal against plans for a Queen Street condo building.

Brian Graff had been ordered to pay nearly $30,000 in legal costs to Reserve Properties, the developer of the six-storey condo at 1960 Queen St. E, formerly the site of a Lick’s restaurant, in a 2015 Ontario Municipal Board (OMB) ruling. That amount was later reduced to $15,000.

Graff, represented by Wood Bull LLC., a law firm that specializes in municipal planning matters, appealed the ruling to divisional court and had his case heard November 28, 2016.

In its January 30, 2017 ruling, the court, a three-judge panel comprised of Justice Katherine Swinton, Justice Carolyn Horkins, and Justice Michael Emery, ruled that Graff was a non-party in the OMB hearing and as such, there was no basis to award costs against him.

The decision dates back to 2012 when the city approved Reserve’s condo plans and Graff was one of three founding members of the Beaches Residents Association of Toronto, or BRAT, which launched an appeal against the plans.

While Graff was BRAT’s chairman and spokesman throughout preparation for the appeal, he resigned a few weeks before the February 2013 OMB hearing and a new board was elected. The hearing went on without him.

After the OMB dismissed the BRAT appeal, Reserve withdrew their motion to seek costs against BRAT in its current form.

Instead, they decided to seek costs against BRAT’s previous directors, specifically Graff, and the OMB awarded costs in the amount of $28,693 – the cost of the three experts called by the developer.

The ruling rejects the OMB’s conclusion that Graff was the “real litigant” and BRAT was the “straw man”, noting that it did not consider evidence to the contrary.

Several times throughout the proceedings the OMB denied requests by Graff on the grounds he was a not a party to the proceedings, but in its decision failed to articulate and apply the means for determining whether a non-party is the real litigant.

Accordingly, reads the decision, the board “had no authority to order costs against [Graff] as he was not a party to the proceeding.”

Costs for the appeal process, totalling $15,000, have been awarded to Graff, payable by the developer within 30 days of the ruling.

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