Summary

Keywords

Canadian charter (Non-criminal) - Freedom of expression (s. 2(b)), Right to liberty (s. 7), Administrative law, Appeals, Boards and tribunals, Judicial review.

Summary

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Charter of Rights – Freedom of expression – Right to liberty – Administrative law – Appeals – Boards and tribunals – Judicial review – Whether fair and reasonable use of one’s home and homestead is protected by sections 2, 7 and 8 of the Charter – Whether the applicants’ section 2 and 7 Charter rights were violated by the imposition of the three impugned draft plan conditions and whether such infringement is justified under section 1 of the Charter.

The applicants applied for a plan of subdivision for a 0.8 hectare property in Cumberland Ontario. The respondent imposed conditions for approval, including requiring a 6 meter access allowance within the slope setback. The applicants appealed many conditions to the Ontario Municipal Board (“OMB”) and argued that some contravened their Charter rights. The OMB granted the respondent’s motion to strike the Charter issues. Nine months later, the applicants brought a motion to have the earlier decision reconsidered. The OMB Chair refused on the basis that the motion had not been brought within the thirty day limitation period and it was not in the public interest to reopen the decision in this case. The applicants brought a motion for leave to appeal that decision to the Superior Court of Justice, Divisional Court. Justice O’Neill of that Court denied leave to appeal. The applicants unsuccessfully sought leave to vary Justice O’Neill’s decision. A motion for leave to appeal to the Ontario Court of Appeal was dismissed.