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Municipal - Fairness. Ho v. The Corporation of the City of Ottawa and the Committee of Adjustment for the City of Ottawa
In Ho v. The Corporation of the City of Ottawa and the Committee of Adjustment for the City of Ottawa (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, this brought against "the Committee of Adjustment for the City of Ottawa’s Consent Decision and the Minor Variance Decision" which "granted two applications by the Applicant’s neighbour (the “Owner”) for consent to sever its property (Consent Decision) and for authorization of the minor variances from the applicable zoning by-law (Minor Variance Decision)".
The court considered procedural fairness, here in a planning (committee of adjustment, under PA s.45) context:Analysis, Procedural Fairness, and Adequacy of the COA Reasons
[40] In Loeb at para 29, the Divisional Court noted that, “on application for judicial review, issues of procedural fairness are reviewed in this court on a correctness standard through the lens of the factors set out in Baker v. Canada (Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817, 1999 CanLII 699.”
[41] At paras 33 through 34 of Loeb, the Divisional Court reviewed the various factors in Baker with respect to the level of procedural fairness that is to be provided in a matter before a committee of adjustment where the application is for a minor variance. The court in Loeb concluded that a low-level of procedural fairness was required.
[42] The Applicant in this case was given notice and he was given an opportunity to make submissions both written and oral before the COA.
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[45] The decision of the COA was reserved and its decision was released approximately 10 days after the hearing.
[46] Section 45 of the Planning Act sets for the powers of a committee of adjustment. It also provides for the timing of a hearing and notice of hearing. As required under s. 45(6), the hearing must be held in public; the committee has an obligation to hear the applicant and “every other person who desires to be heard in favour of or against the application”. The committee of adjustment is then required to render a decision in writing setting out its reasons.
[47] In his oral submissions, the Applicant suggested that a normal process for a committee of adjustment is to conduct a hearing in public including any caucus discussions and that it would be unusual for a committee of adjustment not to engage with the public. The hearing in this case was heard in public. There is no obligation for a committee of adjustment to have their deliberations held in open session. The obligation on a committee of adjustment is to render a decision after the public hearing is completed. This is precisely what the COA did in this case.
[48] The decisions of a committee of adjustment are intended to be brief and are intended to address the concerns raised during a hearing whether they are in writing or oral. There is no obligation on a committee of adjustment to provide the types of reasons that one might typically find in decisions of this court. Committees of adjustment have tight timelines in which to render their decisions. Committees of adjustment also deal with a high volume of cases and cannot be expected to provide anything more than a succinct explanation as to how the decision rendered was reached.
[49] In this case, the COA explained the decision to the parties; the COA provided public accountability; and provided reasons that would allow for effective appellate review. The reasons of the COA were more than adequate.
[50] The Applicant was in all respects afforded procedural fairness. The reasons of the COA when read in the context of S 45 of the Planning Act more than met the statutory obligation of the COA to provide reasons for their decision. . Value Assets Inc. v. Downtown Brampton Development Corporation et al. [procedural fairness]
In Value Assets Inc. v. Downtown Brampton Development Corporation et al. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a motion for an interim "injunction that would stop the enforcement or applicability" of a by-law - this within a JR proceeding seeking the quashing of the by-law, a restraining order and damages.
The court considers any procedural fairness owed by a municipality while making by-laws, here to "those who may be affected by its actions":[48] While the applicant does not appear to directly argue that the City breached any duties of procedural fairness, any such arguments would be doomed to fail even if made. The Superior Court has affirmed that a “municipal council acting legislatively does not have a common law duty of procedural fairness to those who may be affected by its actions” see Blair Engaged - Residents’ Association Inc. v. Corporation of the City of Cambridge, 2023 ONSC 1964, 41 M.P.L.R. (6th) 142 (Div. Ct.), at para. 72; Toronto Taxi Alliance Inc. v. City of Toronto, 2015 ONSC 685, 33 M.P.L.R. (5th) 103, at para. 48. Such a duty only exists where a municipality makes an administrative decision that affects individual rights or interests.
[49] In passing the revised by-law, the City was acting legislatively. It was regulating a range of mobile services and setting policy, rather than making an administrative decision. It was not subject to any duty of procedural fairness. Thus, even if the applicant is alleging that the by-law ought to be quashed for want of procedural fairness, such an argument is legally untenable. . Henhoeffer v. Georgian Bay (Township of)
In Henhoeffer v. Georgian Bay (Township of) (Div Court, 2023) the Divisional Court clarified that the fairness duty owed by a municipality on a Bylaw-authorized 'review' (here respecting landfill) was distinct from that owed by a tribunal or a court:Did the Township breach a duty of fairness
[48] This was not, as the Applicant would have it, a procedure or hearing similar to those conducted by a court or administrative tribunal. It is not intended to and does not resemble a judicial decision-making process. Rather it was a review, by the municipal council, of actions taken by its staff to confirm a proper consideration of the applicable facts in the context of a breach of a municipal by-law and to bring to bear any further considerations the councillors believe to be relevant.
[49] The review is mandated by the By-law to ensure the policies it represents are respected. The principal concern is the protection of the existing natural environment: the shoreline, the lake, plant, animal and maritime life. This is not something that as a matter of law has a significant impact on the lives of the Applicant and her husband. Either there is no impact, or they are required to rectify the damage they have caused. The impact is in the cost of undertaking the required remedial action which, if one accepts the values the manifested in the policies, will benefit their property.
[50] There is no promise of any particular process as presented through the By-law. Thus, there can be no legitimate expectation of any high level of procedural protection. As it is, the Applicant was well-aware of the problem as seen by the municipality through the input and communication with the Township staff. The Repair Order demonstrates the concern and what was seen as a breach of the By-law. The report prepared by David Leeder had been delivered to the Applicant on May 11, 2021. Before the meeting the Applicant received all of the documents that were to be relied on. The Applicant had the assistance of a land use planner and counsel. At the meeting of council, the Mayor explained the process, the By-law Enforcement Officer briefed the councillors in the presence of the public, including those representing the Applicant and those acting for her made submissions. They had an unfettered opportunity prior to and during the public meeting to provide any supporting documents and written submissions. The councillors adjourned to discuss the matter in private and subsequently announced their decision leaving the Repair Order to stand.
[51] This is a decision of a municipal council. They do not speak through written reasons but through the passage of by-laws and resolutions. Their role in a case like this is not judicial, it is administrative; it is the review of an administrative act being the issue of a repair order by the staff of the municipality. The reasons can be deduced from the record as a whole which includes the Repair Order, the resolution of council, any investigative reports and the reasoning that those reports adopt:Admittedly, applying an approach to judicial review that prioritizes the decision maker’s justification for its decisions can be challenging in cases in which formal reasons have not been provided. This will often occur where the decision-making process does not easily lend itself to producing a single set of reasons, for example, where a municipality passes a bylaw or a law society renders a decision by holding a vote: see, e.g., Catalyst; Green; Trinity Western University. However, even in such circumstances, the reasoning process that underlies the decision will not usually be opaque. It is important to recall that a reviewing court must look to the record as a whole to understand the decision, and that in doing so, the court will often uncover a clear rationale for the decision: Baker, at para. 44 [42]
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In this case, I find that the combination of the Resolution, and the detailed investigative report and the reasoning it adopts, provides a robust set of reasons that exceed what would ordinarily be expected or required of a municipal council, even for this more adjudicative type of decision.[43]
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