Challenging Municipal Land Planning Decisions Despite Lacking Appeal Rights for Adjoining Property Owners
The Planning Act of 2022, as amended by the More Homes Built Faster Act, 2022, allows a municipal committee of adjustment to grant minor variances to property owners under Section 45. However, the committee's decisions must meet certain criteria to be valid.
In a series of recent cases, the Divisional Court has emphasised the importance of providing adequate reasons for these decisions. In the landmark case of NOVA Chemicals Corp. v Dow Chemical Canada ULC, the court quashed a committee of adjustment's decision because it failed to provide sufficient written reasons for its decision, as required by s. 45(8.1) of the Planning Act.
The court confirmed that 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, as instructed by the Supreme Court in Vavilov. Reasons cannot merely repeat statutory language, summarize arguments, and state a conclusion; they must demonstrate the decision maker's rationale.
In NOVA Chemicals Corp. v Dow Chemical Canada ULC, the court cited Vincent v. Degasperis (2005) to support the idea that a committee of adjustment's failure to explain its decision in responsive reasons is sufficient to invalidate that decision. The court also rejected the argument that boilerplate reasons were sufficient, stating that the inadequacy of reasons is, in and of itself, sufficient for quashing a committee of adjustment's decision.
The nature of the variance requested in the NOVA Chemicals Corp. v Dow Chemical Canada ULC case, which would allow building an addition right on the property line, was itself "strongly supportive of granting the applicant standing." This case contrasts with Loeb v. Toronto (City), where the court ruled that neighbouring property owners, who do not have a right of appeal to the Ontario Land Tribunal, do not have the right to challenge minor variance decisions made under the Planning Act on judicial review. However, in NOVA Chemicals Corp. v Dow Chemical Canada ULC, the Ontario Divisional Court confirmed that aggrieved neighbours have the right to seek judicial review of such decisions despite the amendments.
It is essential for committees of adjustment to provide clear and detailed reasons for their decisions to ensure transparency and maintain the public's trust. The NOVA Chemicals Corp. v Dow Chemical Canada ULC case serves as a reminder of the importance of this requirement.
The representation of NOVA Chemicals Corp. in the case was handled by the law firm Torys LLP. The 2022 amendments to the Planning Act limit the right of appeal for minor variance decisions to the Ontario Land Tribunal, excluding abutting property owners.
