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JR - Municipal. West Carleton Community Alliance v. City of Ottawa
In West Carleton Community Alliance v. City of Ottawa (Div Ct, 2026) the Divisional Court dismissed a JR, this brought against an Ottawa zoning by-law.
Here the court considers the conflicts that arise where the applicant seeks by JR to quash a municipal bylaw (under the JRPA in the Divisional Court), but also to quash the bylaw under MA s.273 ['Application to quash by-law'] - which should be brought in the Superior Court:[39] The jurisdictional issue arises because the applicant has brought an application for judicial review but has also asked, in the alternative, for relief under s. 273 of the Municipal Act, 2001. The Divisional Court has jurisdiction to quash the Zoning By-law, as set out in s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c J.1. However, if the applicant wanted to proceed under s. 273 of the Municipal Act, 2001, it had to bring its application in the Superior Court, not the Divisional Court. It cannot be addressed, as suggested, in the alternative.
[40] This Court may exercise its discretion not to hear the judicial review because the applicant could have proceeded under s. 273: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, 489 D.L.R. (4th) 181, at paras. 51 and 54. Several factors inform the question of whether that alternative process is adequate in this case: Yatar, at para. 64, citing Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713, at para. 43. We have not been asked to dismiss this application in favour of that alternative process and, having considered the factors relevant to the exercise of our discretion, we would not do so. In the circumstances of this case, it is appropriate to proceed with the judicial review application, which can fully and efficiently address the issues raised. . 2417563 Ontario Inc. v. The Corporation of the City of Brampton
In 2417563 Ontario Inc. v. The Corporation of the City of Brampton (Div Ct, 2026) the Divisional Court dismissed a JR, this seeking "to quash the by-law and set aside the sale to 258" - these both relating to the sale of a narrow strip of land by the municipality.
Here the court considers the sometimes procedural confusion between JRs (in the Divisional Court) and Municipal Act s.273 applications (in the Superior Court) to quash a by-law for illegality:Clarifying the nature of the application
[18] As noted at the outset of these reasons, the applicants seek to quash the by-law. The notice of application in this matter is styled as a “notice of application for judicial review”, but that notice refers to and relies on, inter alia, both the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the “JRPA”) and s. 273 of the Municipal Act, 2001, S.O. 2001, c. 250 (the “Municipal Act”). Under s. 6 of the former, “an application for judicial review shall be made to the Divisional Court.” Under ss. 272 and 273 of the latter, a “by-law passed in good faith … shall not be quashed or open to review by any court because of the unreasonableness” of the by-law (s. 272), but, on an application, “the Superior Court of Justice may quash a by-law … for illegality” (s. 273).
[19] In other words, a panel of judges of this court has jurisdiction to hear an application for judicial review of a by-law, while the jurisdiction to review and quash for illegality is reserved to a single judge of the Superior Court, yet both heads of relief are sought by the applicants in this court.
[20] Recognizing this problem with the application, the City sought an order bifurcating the proceeding in a case management conference held before Trimble J. In an endorsement dated May 19, 2025, Trimble J. denied the request to bifurcate, writing as follows:First, notwithstanding that the Application to Quash the By-law and the Application for Judicial Review of the City’s decision are separate proceedings decided in separate fora, it is not mandatory that each must be pursued separately. In Minnow Lake Restoration Group Inc. v. Sudbury (City), 2022 ONSC 4084, at paragraphs 51-54, the Divisional Court left the decision as to the two forms of relief being claimed in the same proceeding to be determined on a case-by-case basis, and not something limited to “exceptional circumstances”.
Second, litigation is not to be conducted in instalments (see: Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446, at para. 55 citing Shearer v. Oz, 2021 ONSC 7844, at para. 5). Judicial economy demands that the Application proceed to a full panel, notwithstanding that the separate parts would normally be heard in different fora. [21] Accordingly, before us, the applicants have pursued their claims under s. 273 and have submitted that “there is no bar to … seeking both judicial review and an order quashing the by-law in question in the same proceeding. It is open to the court to consider both requests in a single proceeding.”
[22] The parties agree that we are not bound by the conclusions of Trimble J. To the extent that the quoted excerpt of his endorsement suggests that this court may consider an application made under s. 273 of the Municipal Act, I disagree.
[23] Strictly speaking, there is but a single application before us, although it refers to differing heads of relief based on differing statutory foundations. As a statutory court, the Divisional Court must find its jurisdiction in a statute. In this case, our jurisdiction is limited to that conferred on the court by the JRPA, which is further limited by s. 272 of the Municipal Act. This court has no jurisdiction to grant relief under s. 273 of the Municipal Act.
[24] It is true that in Minnow Lake, writing for this court, Lederer J. dealt with a similar situation (see paras. 30 – 31), but he did not conclude that this court could hear and consider an application brought under s. 273 of the Municipal Act at the same time as an application for judicial review. Instead, he concluded that it could hear and determine the application for judicial review brought in that case notwithstanding the availability of an alternative remedy (i.e., an application to the Superior Court under s. 273): see paras. 51 – 53. In part, the court came to that conclusion because the sole argument in favour of the judicial review of the by-law (alleged procedural unfairness), was the same argument that was the foundation for the claim that the impugned by-law was illegal: see para. 54.
[25] I note also that while the Court of Appeal in Yatar (reversed on other grounds: 2024 SCC 8) does make the point that litigation should not be conducted in instalments, in that case both the appeal and the judicial review in question were properly brought in the same court, not in different courts as is the case here.[1]
[26] I therefore proceed to consider only the application for judicial review.
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