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JR - Standing - Courts. Loeb v. Toronto (City)
In Loeb v. Toronto (City) (Div Court, 2023) the Divisional Court considered a JR challenging minor variances granted by a committee of adjustment, which normally flow on appeal to the Toronto Local Appeal Body (TLAB) however recent legislation has removed the standing of third parties (ie. neighbours) to commence TLAB appeals. In these quotes the court considers the applicant's JR standing, advanced on a 'public interest' ground:Legislative Amendment
[15] In the meantime, while Ms. Yan’s application was pending, the More Homes Built Faster Act, 2022, S.O. 2022 c. 21 (the “More Homes Act”) came into force on November 28, 2022. The More Homes Act included an amendment to the Planning Act which removed the statutory right of appeal of third parties (for example, neighbouring property owners) to a minor variance decision of a local Committee of Adjustment. Under the amended provision, only the applicant, Minister or public body, or “specified person” as defined in the Act has a right of appeal to the tribunal: Planning Act, s. 45(12).
[16] In Toronto, appeals of minor variance applications are heard de novo by the TLAB. Appeals of decisions of the TLAB to this court are permitted, with leave, on a question of law: Planning Act, s. 8.1(10).
[17] As a result, while the Applicants would have previously had a right to appeal a decision of the Committee to the TLAB, as of November 2022, they no longer have a right of appeal. Although third parties no longer have a right of appeal to the TLAB, where a minor variance applicant or other specified person appeals, they are entitled to participate in the appeal.
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Analysis
Do the Applicants Have Standing to Seek Judicial Review of the Decision?
[19] The City submits that the Applicants lack standing to seek judicial review of the Decision.
[20] The Applicants rely on public interest standing, as opposed to private interest standing, to bring this application for judicial review. They did not assert that the proximity of their own properties to the property that was the subject matter of the Decision or the variances sought by the property owner affected their private interests such that standing to seek judicial review ought to be available to them.
[21] Different considerations apply where a party seeks public, as opposed to private, interest standing. The courts have taken a more flexible, discretionary approach to public interest standing. In exercising its discretion to grant public interest standing, the court must consider three factors: (i) whether there is a serious justiciable issue raised; (ii) whether the plaintiff has a real stake or genuine interest in it; and (iii) whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts: Carroll v. Toronto-Dominion Bank, 2021 ONCA 38, at para. 34. The party seeking standing must persuade the court that a purposive and flexible application of the factors favours granting standing.
[22] The Applicants take the position that they meet the test for public interest standing because:. There is a serious justiciable issue, given that the outcome of the case deals with procedural rights and the Committee’s procedures “writ large”;
. The Applicants have shown genuine interest in the matter, as evidenced by the fact that the minor variances have a potential impact on the neighbourhood and the enjoyment of their homes, as well as by the Applicants’ participation before the TLAB on the Respondent’s appeal of her initial application;
. Given that the Applicants’ procedural rights have been significantly reduced by the introduction of the More Homes Act, a judicial review application is the most appropriate avenue to challenge the Decision. [23] The issue of a third party’s standing to seek judicial review of decisions of a committee of adjustment does not appear to have been previously raised or specifically decided.
[24] In my view, in the circumstances of this case, the Applicants have not satisfied the test for public interest standing.
[25] Assuming, without deciding, that the Applicants have shown a serious justiciable issue, they have not demonstrated the second and third factors. They do not have a real stake or genuine interest in the issues that they raise. The Applicants attempt to characterize the issue as one of public interest in the process before the Committee. The participatory rights of third parties, however, are those that are provided for in the Planning Act and the Committee’s Rules.
[26] Moreover, the very interests that the Applicants assert in the substance of the minor variance application, including their ability to enjoy their own properties, are private in nature. The Applicants were entitled to receive notice of the hearing because they were among the property owners living within 60 metres of the property. The Applicants attempt to characterize the issue before this court as engaging “public rights” because their concerns relate to the character of the neighbourhood. However, the concern articulated before the Committee related to the height of the main floor and an enclosed deck at the rear of the proposed house, suggesting that their concern was whether Ms. Yan would be able to see into their properties. In terms of private rights, as argued by the City, in a dense urban environment like the City of Toronto, no one has an absolute right to light, views, and prevention of overlook from adjacent properties.
[27] In addition, an application for judicial review is not a reasonable and effective way to bring the issue before the courts. The City highlights the incongruity that would result if the Applicants are able to seek judicial review of a decision of the Committee before this court while parties with a greater interest, such as the Respondent (the minor variance applicant) and the City must first proceed with an appeal to the TLAB and may only proceed before this court with leave on a question of law In my view, it is unlikely that the legislator intended, by removing the right of third parties to appeal to the TLAB, that those parties be able to proceed directly before this court. It is worth noting that third party appeal rights concerning the adoption or amendment of official plans and zoning by-laws were maintained under the More Homes Faster Act.
[28] Accordingly, applying the factors purposively and flexibly, I find that the Applicants have not established entitlement to the granting to them of public interest standing to bring an application for judicial review in this case. Out of an abundance of caution, however, I have nonetheless considered the procedural fairness issues raised by the Applicants. . 9383859 Canada Ltd. v. The Court of Appeal for Ontario
In 9383859 Canada Ltd. v. The Court of Appeal for Ontario (Div Court, 2023) the Divisional Court considers a JR brought against the Court of Appeal itself:[10] First, decisions of the Court of Appeal are not subject to judicial review by the Divisional Court. The Court of Appeal is a “superior court of record”: Courts of Justice Act, RSO 1990, c. C.43, ss. 2(1). Any review of its conduct must be by way of appeal or a motion to reconsider, if available. The Divisional Court, over which the Court of Appeal exercises appellate jurisdiction, has no jurisdiction to judicially review decisions of a “superior court of record”, but only those of an “inferior court”: Judicial Review Procedure Act, RSO 1990, c. J.1, s. 1.
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