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Municipal - Planning (4). 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 a committee of adjustment minor variance decision, here in the context of the adequacy of 'reasons' for the decision:The Requirement to Give Reasons
[43] The relevant provisions of the Act are as follows:Powers of committee
45 (1) The committee of adjustment, upon the application of the owner of any land, building or structure affected by any by-law that is passed under section 34 or 38, or a predecessor of such sections, or any person authorized in writing by the owner, may, despite any other Act, authorize such minor variance from the provisions of the by-law, in respect of the land, building or structure or the use thereof, as in its opinion is desirable for the appropriate development or use of the land, building or structure, if in the opinion of the committee the general intent and purpose of the by-law and of the official plan, if any, are maintained.
Criteria
(1.0.1) The committee of adjustment shall authorize a minor variance under subsection (1) only if, in addition to satisfying the requirements of that subsection, the minor variance conforms with,
(a) the prescribed criteria, if any; and
(b) the criteria established by the local municipality by by-law, if any.
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Power of committee to grant minor variances
(3) A council that has constituted a committee of adjustment may by by-law empower the committee of adjustment to grant minor variances from the provisions of any by-law of the municipality that implements an official plan, or from such by-laws of the municipality as are specified and that implement an official plan, and when a committee of adjustment is so empowered subsection (1) applies with necessary modifications.
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Decision
(8) No decision of the committee on an application is valid unless it is concurred in by the majority of the members of the committee that heard the application. 2015, c. 26, s. 29 (3).
Same
(8.1) The decision of the committee, whether granting or refusing an application, shall be in writing, shall be signed by the members who concur in the decision and shall,
(a) set out the reasons for the decision; and
(b) contain a brief explanation of the effect, if any, that the written and oral submissions mentioned in subsection (8.2) had on the decision. 2015, c. 26, s. 29 (3).
Written and oral submissions
(8.2) Clause (8.1) (b) applies to,
(a) any written submissions relating to the application that were made to the committee before its decision; and
(b) any oral submissions relating to the application that were made at a hearing. [44] Pursuant to s. 45(1) of the Act, an applicant bears the burden of establishing that the variance from the provisions of the by-law sought, in respect of the land, building or structure or use thereof, is:a. A minor variance;
b. Desirable, in the opinion of the Committee, for the appropriate development or use of the land, building or structure;
c. Maintains, in the opinion of the Committee, the general intent and purpose of the zoning by-law; and
d. Maintains, in the opinion of the Committee, the general intent and purpose of the official plan. [45] It is well established that it is incumbent on a Committee of Adjustment to consider each of these requirements and, in its reasons, set out whatever may be reasonably necessary to demonstrate that it did so and that, before an application for a variance is granted, all of the requirements were satisfied: Vincent v. Degasperis (2005), 2005 CanLII 24263 (ON SCDC), 256 D.L.R. (4th) 566 (Ont. Div. Ct.), at para. 11.
[46] As the Supreme Court noted in Vavilov, at para. 81, where – as is the case under s. 45 of the Act – reasons are required, “they are the primary mechanism by which administrative decision makers show that their decisions are reasonable – both to the affected parties and to the reviewing courts”.
[47] At para. 102 of Vavilov, the Supreme Court held that reasons that “simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion” will rarely assist a reviewing court in understanding the decision maker’s rationale.
[48] At the core of the applicant’s submissions is that the Committee’s reasons, which simply recite the language of s. 45(1), fail to meaningfully engage with the central issues and concerns raised by the application.
[49] The purpose of a minor variance is to grant relief from the rigid application of the zoning by-law, having regard for individual circumstances and the broader public interest.
[50] The question of whether or not a proposed variance is “minor” will often be contentious. The statute does not define the term “minor variance”. In Vincent, this court held, at para. 12:A minor variance is, according to the definition of “minor” given in the Concise Oxford Dictionary, one that is “lesser or comparatively small in size or importance”. This definition is similar to what is given in many other authoritative dictionaries and is also how the word, in my experience, is used in common parlance. It follows that a variance can be more than a minor variance for two reasons, namely, that it is too large to be considered minor or that it is too important to be considered minor. [51] It is also well established that the term “minor variance” is a relative one and should be flexibly applied: McNamara Corporation Ltd. and Colekin Investments Ltd., (1977), 1977 CanLII 1050 (ON SC), 15 O.R. (2d) 718 (Div. Ct.), Perry v. Taggart, 1971 CanLII 488 (ON SC), [1971] 3 O.R. 666 (H.C.)
[52] The respondent argues that, depending on the process used in assessing variances, even “template reasons” provided by a Committee of Adjustment, taken in combination with other information provided to the Committee, could be sufficient: Johnston, Re, 2008 CarswellOnt 1806 (O.M.B.), at para. 15.
[53] The respondent, referring to various paragraphs of the Supreme Court’s decision in Vavilov, argues that:a. The adequacy of reasons “is not a ‘stand-alone’ basis for quashing a decision” (para. 304 of the reasons of Abella and Karakatsanis J.J., concurring with the result);
b. Reasons “must not be assessed against a standard of perfection”, and do not require “all the arguments, statutory provisions, jurisprudence or other details” required in a judicial position (Vavilov, at para. 91, citing Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 16);
c. An administrative decision maker’s expertise and choice of procedures may lead to outcomes that “might be puzzling or counterintuitive on its face”, but may nevertheless accord with practical realities and be reasonable (Vavilov, at para. 93); and
d. Reasons should be read in light of the record and with appropriate sensitivity to the administrative setting in which they were given. A reviewing court must look to the record as a whole to understand the decision, and in doing so, the court will often uncover a clear rationale for the decision (Vavilov, at paras. 137-138). [54] The principal difficulty with the respondent’s arguments are that the reasons given by the Committee are reasons in name only. They give no clue as to the justification for the Decision.
[55] The question of whether or not Dow’s application could properly be considered as being for a “minor variance” was clearly a contentious issue. As this court noted in McNamara, whether variances are minor must in each case be determined in light of the particular facts and circumstances of the case. I agree with NOVA that the Decision is entirely deficient in that it contains no examination of the facts or circumstances. Specifically, it does not address NOVA’s concerns that the total elimination of the 30 metre setback is not minor. Nor does it address NOVA’s contentions concerning the adverse impacts of the proposed variance on NOVA’s property.
[56] As previously noted, the respondent relies on the concurring opinion in Vavilov, at para. 304, that the adequacy of reasons should not be a stand-alone basis for quashing a decision. That may be so where the basis for a decision by a specialised administrative actor is readily apparent from the record, but not clearly expressed in written reasons. That is not the present case. Nor is it a case where an administrative decision maker failed to address a relevant factor in reaching a decision, but such omission was not material to the decision rendered: in such circumstances, the applicant would bear the burden of showing that the omission rendered the decision reached unreasonable.
[57] I would add that Dow takes issue with NOVA’s contention that it was not given a chance to reply to Dow’s submissions to the Committee, having been told that it would need to “take it up on appeal”. Suffice it to say that NOVA’s suggestion that the lack of reasons provided by the Committee of Adjustment reflected the Committee’s mistaken belief that it was a mere staging post on the way to an inevitable de novo appeal, is understandable in the circumstances.
[58] Ultimately, I am satisfied that the absence of reasons for the Committee’s decision is, in and of itself, a sufficient basis for quashing the decision. . 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. . Voices of Willowdale Inc. v. City of Toronto
In Voices of Willowdale Inc. v. City of Toronto (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR, this against an OLT decision "to adopt a zoning by-law to permit the construction of a three-story apartment building for people leaving homelessness. The new development would be in addition to the existing four-story building on the property, which houses 600 senior citizens.":[8] The sole issue before the Tribunal was whether the proposed development would be compatible with the existing Willowdale Manor. Before the Tribunal, the Common Interest Parties submitted that for the new development to be compatible with Willowdale Manor, the new development should be restricted senior citizens leaving homelessness.
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ii. The decision is consistent with the Provincial Planning statement
[38] The Tribunal also heard submissions on whether restricting the proposed development to senior citizens is consistent with the Provincial Planning Statement (PPS). The Tribunal found that limiting the new development to senior citizens would be inconsistent with the PPS and impermissible.
[39] Decisions affecting planning matters "shall be consistent with" policy statements issued under the Planning Act, including the Provincial Planning Statement: Planning Act, s. 3. Section 4.4 of the PPS states that it must be implemented in a manner that is consistent with the Human Rights Code, R.S.O. 1990, c. H.19, and the Canadian Charter of Rights and Freedoms. In other words, any planning decision must comply with the Human Rights Code and the Charter.
[40] The Tribunal found that limiting the entire Subject Property to senior citizens would be inconsistent with the PPS because it would limit the occupancy of the proposed building in a way that violates the equality rights in Human Rights Code and the Charter. Section 3 of the Human Rights Code, and s. 15 of the Charter provide that every person has the right to equal treatment without discrimination with respect to age.
[41] While there are circumstances under which age restrictions have been permitted, the Tribunal found that the evidence did not to support the Applicant’s position that the new development should be zoned for senior citizens only. The Tribunal found, "regulating the user of the land or regulating based on concerns about who the occupants are or will be, constitutes people zoning and is illegal, absent specific legislative exception."
[42] The Chair agreed with the Tribunal’s decision adding the words "for senior citizens" to the zoning by-law would unreasonably limit the occupancy based on age and would be inconsistent with the PPS. The Chair, therefore, found that the Tribunal’s decision was reasonable.
[43] While the words "illegal" and "impermissible" may not be the language I would have used, it was reasonable for the Tribunal to find that limiting the zoning to senior citizens would be inconsistent with the PPS and not appropriate in these circumstances. It was also reasonable for the Chair to uphold that finding.
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