Dupuis v. Essex Condominium Corp. No. 28 (Ontario Municipal Board)

The condominium corporation applied for a minor variance from the applicable zoning by-law, to permit the construction of enclosures over two parking garage ramps. The condominium corporation desired the enclosures to prevent accumulation of snow and ice on the ramps and the resulting safety hazards.  The municipality granted the minor variance.  One of the owners appealed to the OMB.  At the OMB, several owners spoke in opposition to the requested variance.  Among other things, they expressed concerns about: 

• the appearance of the proposed enclosures;
• noise from the garage door, which would be relocated to the end of a ramp;
• the cost of the proposed enclosures;
• the enclosures blocking views; and
• vehicles being forced to make a blind left turn when exiting a ramp. 

The objecting owners asserted that other alternatives, such as de-icing pipes, would be more suitable. 

One of the owners also raised concerns about compliance with the Condominium Act, 1998.  To this, the condominium corporation responded that “the Board of Directors had discretion under the Condominium Act to make the decision to enclose the ramps without putting it to a vote by the condominium owners”.  In any event, the OMB said “this is an appeal of a minor variance under the Planning Act, and the Board has no jurisdiction under the Condominium Act in relation to this matter”. 

The OMB concluded that the requested variance met the “four tests set out in s.45 (1) of the Planning Act” and approved the variance, subject to conditions respecting trees, lighting and time delay on the overhead garage door.