On November 29, 2007, Sun Life Financial Inc. was successful in obtaining a favourable Ontario Municipal Board (Board) decision respecting their application to convert a 12-storey, 119-unit residential building from rental to condominium, despite the City of Burlington's opposition to the draft plan. City Council had refused the application, despite the recommendation of city staff that it be approved.
The Board agreed that the Clergy principle applied, and distinguished between the existing, applicable policy regime and evolving policy reflected in OPA 62 enacted in 2007, which sets out conditions to be met before condominium conversion is permitted. The Board found that the Clergy principle is not merely a Board policy, it is an enunciation of the principles of natural justice and procedural fairness that requires a party know the case it must answer and be permitted to answer that case. The Board found that “if, in the context of planning law, the policy regime were a moving target, natural justice would be absent” and stressed that “both public parties and representatives of the public are entitled to understand the rules of the game from the outset.” Board authority to set its own procedures does not permit it to allow one party to change these rules mid-application and the Planning Act does not contemplate such authority. The Board stated that it will not permit the “City to do indirectly what it cannot do directly, that is, impose the policies found in OPA 62 on an application filed four years in advance of its adoption.” The Board found that the proposal met key policy objectives in that it will contribute to housing affordability, is in the public interest, especially in meeting the interests of existing tenants, and has appropriate regard for the Planning Act, the Provincial Policy Statement, and the in-force Regional and City Official Plans. The Board preferred the opinions found in the two staff reports and those of Sun Life's witnesses that the proposal is “appropriate, timely, reasonable and desirable and represents good planning.” Patrick Devine and Katarzyna Sliwa of Fraser Milner Casgrain LLP acted on behalf of Sun Life on the appeal. Thomas Richardson of Sullivan Mahoney LLP represented the City of Burlington.