Ontario Divisional Court Interprets Committee of Adjustment Procedural Requirements for Participants

On October 23, 2023, the Ontario Divisional Court (the “Divisional Court”) issued its decision in Loeb v. Toronto (City) (the “Decision”).[1]  The Divisional Court made several findings with respect to the standing of third-party participants in a minor variance application to seek judicial review from Committee of Adjustment decisions and opined on the level of fairness owed to participants in a minor variance hearing.

BACKGROUND

The Respondent Yan Liu owns a property on Heath Street West in Toronto (the “Property”). The Applicants, Audrey Loeb, David Ross and Noreen Taylor, are the Respondent’s neighbours. Ms. Loeb and Mr. Ross live on the lot to the south of the Property and share a rear lot line with the Respondent. Ms. Taylor’s property is across the street from the Property.

In 2020, the Respondent applied for 12 minor variances to facilitate the construction of a 2.5-storey, single detached, multi-generational dwelling with an integrated garage and a partially enclosed rear deck on the Property. The Committee refused the initial application and the Respondent appealed the refusal to the Toronto Local Appeal Body (“TLAB”).[2]

The Respondent amended the original application before the TLAB to reduce the density, height, length, and depth of the proposed home. The Applicants opposed this proposal before the TLAB.  In 2022, the TLAB dismissed the Applicant’s revised application.

Later in 2022, the Respondent submitted another application for six minor variances to the zoning by-law applicable to the Property, namely: maximum density, building length, depth, height, floor height, and platform floor height (the “Application”).

While the Application was pending, the More Homes Built Faster Act, 2022 (“Bill 23”) [3] came into force and amended the Act to remove the statutory right of appeal of third parties to a minor variance decision of the Committee.  In particular, only the applicant, the local municipality, the Minister, prescribed public authorities, and “specified persons” as defined in the Planning Act, may appeal a committee of adjustment decision on a minor variance application to the Ontario Land Tribunal or the TLAB, as the case may be. The hearing was scheduled for February 15, 2023, but Ms. Loeb and Mr. Ross were on vacation when the notice was delivered.  The Applicants asked the Committee for a deferral in writing and in person, which the Committee refused.  The Applicants also submitted written materials from a land-use planner.

Toronto’s Committee of Adjustment (the “Committee”) conducted virtual hearings at the time of the Respondent’s application.  The Committee’s hearings are streamed live on Youtube and remain accessible for viewing on the City of Toronto’s Youtube page.  The Committee heard from the Respondent’s agent, and two representatives of the Applicants.  The Committee approved the application at the hearing.

After the hearing in 2023, the Committee issued a brief written decision stating that the Application met the four tests in Section 45(1) of the Planning Act (the “Approval”), subject to three conditions.

As the Applicants were not “specified persons”, the Applicants could not appeal the Approval to the TLAB.  The Applicants filed a judicial review application to the Divisional Court, alleging that the Committee denied them procedural fairness in various respects and for failing to provide satisfactory written reasons, in accordance with Section 45(8.1) of the Planning Act.[4]

The Decision

The Divisional Court dismissed the application.  The OLT found that: (1) the Applicants did not have standing to seek judicial review; (2) the Committee provided the Applicants with an adequate opportunity to be heard; and (3) the Committee’s reasons were sufficient.

1. Do the Applicants have standing to seek judicial review of the Decision?

The Applicants relied on public interest standing, rather than private interest to bring the application for judicial review.  There are three factors the Divisional Court was required to consider: (i) whether there is a serious justiciable issue raised; (ii) whether the plaintiff has a real state or genuine interest in it; and (iii) whether, in all circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts.

The Divisional Court held that the Applicants did not satisfy the test for public interest standing and specifically, were not convinced by the Applicants' arguments for the second and third factors. The Divisional Court held that the Applicants had a private, rather than public, interest as the Applicants argued that the Application would affect their ability to enjoy their own properties.  

Further, the court held that an application for judicial review was not a reasonable and effective way to bring the issue before the courts. The legislature did not intend for the amendments in Bill 23 to enable individuals with a less significant interest than parties, such as the applicant or the municipality, to be able to proceed directly before the Divisional Court.

2. Were the Applicants Denied a Meaningful Opportunity to Participate in the Hearing?

The Divisional Court applied the correctness standard of review to the following issues through the lens of the factors set out in Baker v Canada (Minister of Citizenship and Immigration) (“Baker”).[5]  The Divisional Court held that the Applicants were entitled to a relatively low level of procedural fairness and were entitled to receive notice, have access to the Respondent’s submitted materials, and to be heard within the time constraints determined by the Committee, all of which was provided and allowed the Applicants to participate meaningfully in the hearing.  The Divisional Court made the following findings with respect to the Baker factors:

1. Nature of the decision and the process following it: the Approval related to minor variances, which are the least consequential land-use changes provided for under the Planning Act;
    
2. Nature of the statutory scheme and the terms of the statute pursuant to which the Committee operates: the Planning Act provides a right of appeal for specified parties only, not to third parties such as the Applicants;
    
3. Importance of the decision to the Applicants: the Divisional Court found that the importance was relatively low, as the Approval did not threaten the Applicants’ life, liberty, or ability to earn an economic living;
    
4. Legitimate expectations: the Applicants did not suggest that they had a legitimate expectation of the participatory rights beyond those provided in the Planning Act and the Committee’s Rules of Procedure; and
    
5. Choices of procedure made by the Committee and its institutional constraints: the Committee receives a high volume of applications, which they must deal with expeditiously with multiple applications heard every day. While the Committee’s process is different from a judicial process, deference was owed to the processes designed to balance fairness, public participation, and efficiency.
    

3. Were the Committee’s Reasons Inadequate?

The Applicants argued that the Approval Decision was procedurally unfair because it did not adequately explain the reasons. Therefore, the Decision was invalid and should be quashed for not complying with section 45(8.1) of the Act.

The Divisional Court disagreed and held that the Planning Act does not contemplate that a decision is automatically invalid for failure to comply with Section 45(8.1) of the Planning Act.  The Divisional Court performed a statutory interpretation and found that Section 45(8.1) both did not expressly state that a decision would be invalid.  Further, the Divisional Court found that the legislative history of the provision suggested that the Legislature chose to limit when a decision would be deemed invalid to instances where there was a non-concurrence by a majority of the members.

Instead, the Court held that the proper approach to assessing whether the Committee’s reasons are adequate is in line with the Supreme Court of Canada’s decision in Vavilov v Canada (Minister of Citizenship and Immigration).  The Divisional Court accepted that when reasons provided are deficient, a court should examine the decision in light of the record, the larger context, and other relevant constraints.  In this case, the Divisional Court found that the materials submitted to the Committee, the Committee’s oral reasons, and its choice of procedure sufficiently addressed the four tests for a minor variance under Section 45(1) of the Planning Act.

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