Municipal land planning decisions unaffected by appeal rights for adjoining property owners: These individuals can still contest such decisions.
In a significant decision, the Ontario Divisional Court has confirmed that neighbouring property owners can challenge minor variance decisions made under the Planning Act, despite amendments that removed their statutory rights of appeal.
The case in question, NOVA Chemicals Corp. v Dow Chemical Canada ULC, was represented by Canada LLP. The court's ruling quashed a committee of adjustment's decision due to inadequate reasons, contradicting the requirements of the Planning Act and the Supreme Court's guidance in Vavilov.
The Planning Act allows a municipal committee of adjustment to grant minor variances to property owners under four criteria. However, following amendments in 2022, abutting property owners are generally precluded from appealing a decision granting their neighbours a minor variance.
In the Loeb v. Toronto (City) case, the court suggested that judicial review was not available to abutting property owners. However, this interpretation was contradicted in the NOVA case. The court in NOVA rejected the argument that boilerplate reasons were sufficient and confirmed that the inadequacy of reasons is, in and of itself, sufficient for quashing a committee of adjustment's decision.
The court in NOVA also cited Vincent v. Degasperis (2005) to emphasize the importance of providing clear reasons for decisions. Committees of adjustment must ensure they explain the basis for a decision while considering the arguments made before them.
In the NOVA Chemicals Corp. v Dow Chemical Canada ULC case, the Ontario Divisional Court further confirmed that municipalities cannot rely on boilerplate reasons to justify their decisions. A lack of responsive reasons can be a stand-alone basis for quashing a minor variance decision.
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. This decision reaffirms the importance of transparency and accountability in decision-making processes, ensuring that all parties are treated fairly and equitably.
