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JR - Standing - General. NOVA Chemicals Corp. v. Dow Chemical Canada ULC
In NOVA Chemicals Corp. v. Dow Chemical Canada ULC (Ont Div Ct, 2025) the Ontario Divisional Court allowed a JR, this against "a decision of the Committee of Adjustment of the Township of St. Clair (the “Decision”) granting the respondent Dow Chemical Canada ULC (“Dow”)’s application for a minor variance under s. 45 of the Planning Act".
The court considers JR standing, here in a planning minor variance context:[18] At common law, a person will have standing to seek a remedy in proceedings for judicial review if they are an “aggrieved person”, an “affected person”, or someone who is “exceptionally prejudiced” by the impugned administrative action: Donald J. M. Brown & John M. Evans, Judicial Review of Administrative Action in Canada (Toronto: Thomson Reuters, 2024), ¶ 4:14.
[19] Although the respondent accepts that in appropriate circumstances the court could grant the applicant standing to seek judicial review, it submits that the rationale for the recent legislative amendments was to limit appeals which hold up the implementation of minor variance planning decisions. It argues that in the absence of any compelling evidence that the applicant will suffer any adverse effects from the proposed addition, the court should decline the applicant’s standing to seek judicial review.
[20] The applicant counters that the effect of the respondent’s argument would be to render the decision, and many others like it, immune from judicial scrutiny. Furthermore, the absence of any adequate alternative remedy is a factor which will weigh in favour of a court exercising its discretion to undertake judicial review: Yatar, at para. 57.
[21] In my view, a reasonable assessment of the facts and circumstances of the parties’ dispute leads to the conclusion that the applicant is an aggrieved or affected party.
[22] Despite the swell of accusations and counter-accusations that the dispute between these parties is motivated by competitive factors, it is not uncommon for the owner of a neighbouring property to be granted standing to challenge a planning decision: Tungland v. Edmonton (City), 2017 ABQB 246, 50 Alta. L.R. (6th) 389.
[23] In the present case, the fact that the variance requested includes locating the new structure directly on the shared property line (when the zoning By-Law provides for a 30 metre setback) which would be nearly twice the height of the existing building, is strongly supportive of granting the applicant standing.
[24] The rationale for the statutory amendments that removed the right of appeal for parties in the applicant’s position may well have been to reduce obstacles in the minor variance application process, as will be discussed below. However, the statute not only specifies that reasons must be given by a committee of adjustment, but states what those reasons should contain. Where an affected party without right of appeal seeks judicial review of a committee of adjustment’s decision on a minor variance application, the committee’s alleged failure to give the reasons it is statutorily required to provide should weigh heavily in favour of permitting judicial review.
[25] I am satisfied in the circumstances that the court should entertain this application for judicial review on its merits.
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