|
Reasons - Municipality. 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 'reasons for decision' issue, here in a committee of adjustment minor variance context - focussing on Vavilov's treatment of 'reasons':[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. . 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, and thus that the standard for 'reasons for decision' may be different: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]
....
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]
|
