No appeal, no problem: Abutting property owners without appeal rights may still challenge municipal land planning decisions

Following amendments to the Planning Act in 2022,¹ there had been some uncertainty as to the recourses available to abutting property owners when faced with decisions by municipalities granting applications for minor variances to their neighbours (i.e. permitting them to deviate from the requirements of a zoning bylaw). 

In NOVA Chemicals Corp. v Dow Chemical Canada ULC,² the Ontario Divisional Court confirms that aggrieved neighbours have the right to seek judicial review of such decisions despite amendments removing their statutory rights of appeal. It also confirmed that municipalities cannot rely on boilerplate reasons to justify their decisions.

Challenging minor variances in the wake of the More Homes Built Faster Act, 2022

Section 45 of the Planning Act allows a municipal committee of adjustment to grant minor variances to property owners where four criteria are met. The variance must:  

• be minor;
• be desirable for the appropriate development or use of the land, building or structure;
• maintain the general intent and purpose of the zoning bylaw; and
• maintain the general intent and purpose of the official plan.

In late 2022, the Planning Act was amended to speed up development. Notably, the amendments limited who had a right to appeal minor variance decisions to the Ontario Land Tribunal. As a result of the legislative amendments, abutting property owners are now generally precluded from appealing a decision granting their neighbours a minor variance.

The amended legislation was first interpreted by the Divisional Court in Loeb v Toronto (City). ³ There, the court suggested judicial review was not available to abutting property owners. In its view, the Ontario legislator was unlikely to have intended, by removing the right of third parties to appeal, that they be allowed to proceed directly before the courts.⁴ The court in Loeb also held that committee of adjustment decisions failing to comply with s. 45(8.1) of the Act, which requires that a decision be supported by written reasons responding to any submissions opposing the minor variance, were not invalid.⁵

The court considered the same issues in NOVA with a very different outcome. 

Background

NOVA and Dow are competitors in the plastics industry and owners of abutting properties in St. Clair Township. Dow applied to the local committee of adjustment for a minor variance from the bylaw’s setback and height requirements to build an addition. The requested variance sought to eliminate the setback and nearly double the height of the existing building (exceeding the bylaw’s height requirement). 

NOVA presented written and oral submissions at the hearing of the minor variance application opposing the addition’s construction. Despite these objections, the variance was granted to Dow.

The court’s decision 

NOVA successfully sought judicial review and the Divisional Court quashed the committee of adjustment’s decision.

Dow relied on the 2022 amendments to argue that NOVA did not have standing to seek judicial review. The court rejected this argument. It found that the nature of the variance requested, namely one that would allow building an addition right on the property line, was itself “strongly supportive of granting the applicant standing.”⁶ The absence of a right of appeal did not close the door to judicial review for an aggrieved or affected party.⁷

The court confirmed that a committee of adjustment’s failure to explain its decision in responsive reasons is sufficient to invalidate that decision. Here, the committee had failed to do so and provided “reasons in name only” that gave “no clue” as to the decision’s justification.⁸ This is contrary to s. 45(8.1) of the Planning Act and the Supreme Court’s guidance in Vavilov: ⁹

• A committee of adjustment must consider each of the requirements set out in section 45(1) of the Planning Act and demonstrate it did so in its reasons.¹⁰
• Section 45(8.1) of the Planning Act requires committees to “set out the reasons for the decision” and “contain a brief explanation of the effect, if any, that the written and oral submissions” [relating to the application] had on the decision.” This is a mandatory requirement.
• As the Supreme Court instructed in Vavilov, reasons cannot merely repeat statutory language, summarize arguments and state a conclusion. Reasons are the primary mechanism by which decision makers demonstrate their decisions are reasonable and a reviewing court must be able to understand the decision maker’s rationale.¹¹

The court rejected Dow’s argument that boilerplate reasons were sufficient given the low degree of fairness owed to parties by committees of adjustment. Nova confirms that the inadequacy of reasons is, in and of itself, sufficient for quashing a committee of adjustment’s decision.¹²

Key insights 

When contrasted with the outcome in Loeb, two key lessons can be learned from Nova: 

• Standing: Despite the 2022 amendments, neighbouring property owners, who do not have a right of appeal to the Ontario Land Tribunal, may challenge minor variance decisions made under the Planning Act on judicial review. 
• Adequacy of reasons: A lack of responsive reasons can be a stand-alone basis for quashing a minor variance decision.¹³ Committees of adjustment must ensure they explain the basis for a decision while considering the arguments made before them. 

NOVA was represented in the Ontario Divisional Court by Norton Rose Fulbright Canada LLP. 

The authors would like to thank Caitie Isles, summer student, for her contribution to preparing this legal update.