Court File and Parties

CITATION: 2701836 Ontario Inc. v. Haldimand County, 2026 ONSC 805

DIVISIONAL COURT FILE NO. Series: 247/23

DATE: 20260210

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: 2701836 ONTARIO INC., Applicant

AND:

THE CORPORATION OF HALDIMAND COUNTY and THE COMMITTEE OF ADJUSTMENT OF HALDIMAND and ERIC SCHAEFFER and HILLARY HARPER, Respondents

BEFORE: Schreck, Shore, Brownstone JJ.

COUNSEL: T. David Marshall and Rankin Lutz, for the Applicant

Matthew Harmes, for the Respondents Eric Schaeffer and Hillary Harper

Thomas G. Hanrahan and Sara J. Premi, for the Respondents The Corporation of Haldimand County and The Committee of Adjustment of Haldimand County

HEARD at Hamilton: January 29, 2026

ENDORSEMENT

Brownstone J.:

[1] The applicant asks the court to judicially review the respondent Committee of Adjustment of Haldimand’s decision that granted a minor variance to the respondents Eric Schaeffer and Hillary Harper. The applicant, a neighbouring landowner, asks this court to quash the decision because it unreasonably failed to consider the proper test and because the applicant was denied procedural fairness at the Committee hearing. The applicant asks the court to substitute its decision for that of the Committee.

[2] The respondents assert that the applicant has no standing to bring this application, and the application should be dismissed on this basis. In the alternative, the respondents submit that the Committee’s decision was reasonable and procedurally fair, and there is no basis for the court to interfere with it. In the further alternative, if the court finds the decision was unreasonable, the respondent submits that the court should not substitute its own decision but should remit the matter to the Committee for a new hearing.

[3] For the reasons that follow, I find the applicant has standing, the Committee’s decision was unreasonable, and the appropriate remedy is for the matter to be remitted to the Committee for a new hearing.

Background

[4] The applicant owns a parcel of land in Haldimand County that is next to the land owned by the personal respondents. The personal respondents operate a dog kennel on their land. The kennel does not comply with the governing zoning bylaw, Haldimand County Comprehensive Zoning By-law HC 1-2020. The personal respondents sought a minor variance from exterior side yard, interior side yard, and rear yard setback provisions in the Zoning By-law. The required setbacks were 125 metres in three of the four locations and 30 metres in the fourth location. The personal respondents sought the following variances:

[5] The applicants and other neighbours were provided the statutorily required notice of the Committee of Adjustment hearing. One neighbour, not the applicant, opposed the variance because they had had negative experiences with the dogs. A second neighbour did not oppose the variance as long as the kennel operation did not expand.

[6] The applicants opposed the variance because the effect of the variance, when combined with the operation of section 4.33(c) of the Zoning By-law, was to significantly shrink the available envelope for building on the applicant’s land. That is, section 4.33(c) of the Zoning By-law requires that no dwelling be erected or located on a separate lot within 300 metres of any animal kennel. Therefore, significant parts of the applicant’s land would not be permitted to have a residential dwelling built upon it. The applicant stated that it had bought the property with a plan to construct a residential home on it in the future. The applicant also submitted that the variance would have a negative effect on their quality of life because of noise, odours, and increased vehicular traffic. Both the value and appeal of the applicant’s property would be negatively affected.

[7] Staff planners prepared a planning report about the requested variance. The report concluded that none of the four parts of the statutory test for a minor variance was met and recommended that the variance application be refused.

[8] The Committee of Adjustment met on November 14, 2023. It had before it the staff planner’s report, which annexed the three neighbours’ letters described above. The Committee heard oral submissions from the personal respondents and from counsel for the applicants.

Decision under Review

[9] The minutes from the hearing describe the Committee’s review and set out its reasons. The minutes provide in full as follows (bolding in original):

A) PLA-2023-124 Eric Schaeffer and Hillary Harper

Present: Eric Schaeffer and Hillary Harper, applicant

Brian Lutz, lawyer for owner of property to the east of the subject property

The proposal is to request relief from the exterior side yard, interior side yard (left) and rear yard provisions of the Agricultural (A) Zone of Haldimand County Zoning By-law HC 1-2020. The relief is requested to permit the existence of a dog kennel on the subject property.

The applicants were surprised that the neighbour represented by Mr. Lutz did not approach them about their concerns regarding the application rather than hiring a lawyer. The applicants stated that the kennel has existed since 2012, have not had any complaints regarding its operation, and have been complemented (sic) about the cleanliness of the operation. The County EMS have long used the kennel, and the dogs that have resided there, with the breeding of service dogs for emergency services. The applicants further stated that EMS had been gagged from providing support for their application, and they feel as though they are being persecuted for doing the right thing. The purpose of the application was so the applicants could acquire their kennel license from the County, and that Bylaw services had concerns with the setbacks as they currently exist.

Mr. Lutz stated that his clients support the recommendation of the planning report. He added that his client wishes to build on their property, and he feels that approval of this application would prevent them from doing so.

Member Ricker asked if some construction would occur as a result of this application. The applicant stated that no construction is contemplated, and that all existing building have existed for a long time. Member Ricker then expressed support for the application.

The Committee made the following decision:

PURSUANT to Subsection 45(1) of The Planning Act, R.S.O. 1990 (as amended), this Committee hereby makes the following decision on the application of Eric Schaeffer and Hillary Harper, to request relief from the exterior side yard, interior side yard (left) and rear yard provisions of the Agricultural (A) Zone of Haldimand County Zoning By-law HC 1-2020. The relief is requested to permit the existence of a dog kennel on the subject property. Plan 600, Part Lots 4 to 10 East of Baxter, Lot 4 to 9 West of Howell, Part Lots 1 to 3 West of Howell, Registered Plan 18R3956 Parts 1, 2 and 3, Geographic Township of Seneca, known municipally as 203 Townline Road East

DECISION: Motion to REFUSE: DEFEATED

Motion to APPROVE: APPROVED

REASONS: The operation has existed for a long period of time.

[10] The Committee decision describes the relief requested, sets out the chart at paragraph 4 above, reiterates the single sentence of “REASONS” from the minutes, and is signed by the Committee members.

Jurisdiction and standing

[11] The respondents submit that the applicants have no standing, and the court should not assume jurisdiction over this application for two principal reasons.

[12] Their first argument is based on recent statutory amendments. The Planning Act R.S.O. 1990, c. P.13 was recently amended by the More Homes Built Faster Act, 2022, S.O. 2022, c. 21 to severely limit third party appeal rights. The applicant’s prior right to appeal to the Ontario Land Tribunal has been extinguished by these amendments. The respondents still have a right of appeal to the Ontario Land Tribunal, followed by a right to appeal to this court on a question of law only, with leave of the court. The respondents argue that given the clear legislative intention to limit third parties’ rights to review planning decisions, and given the respondents’ narrow ability to appeal to this court, it would be nonsensical if the applicants have a right to seek judicial review directly from this court.

[13] I do not accept this argument. The absence of a statutory right to appeal, or the existence of a circumscribed right to appeal, does not mean a party does not have the right to seek judicial review: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, 489 D.L.R. (4th) 191, at paras. 43-50. An applicant may still seek judicial review based on private interest standing if a decision affects the applicant’s direct, personal interest or tangibly interferes with an applicant’s private right: Kilian v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5931 (Div. Ct.), at paras. 41-43; West Nipissing Police Services Board v. Municipality of West Nipissing, 2018 ONSC 6454 (Div. Ct.), 83 M.P.L.R. (5th) 243, at para. 32.

[14] The respondents’ second submission is that the applicant has no such private interest, as the applicant’s intention to build on its property is speculative and remote. There is no current residential building on the property that would be affected by the variances. The applicant’s description of the land as a “potential” building lot demonstrates that its interest is speculative. There is therefore no interference with the applicant’s private right or interest.

[15] I disagree. The applicant owns land next to the land in respect of which the variance is sought. The use the applicant may make of its land, in terms of where it will be permitted to construct a dwelling, is directly and significantly affected by the Committee’s decision. The respondents do not dispute that the prevailing use of the lands in the area is residential. The applicant has owned the land for several years. The fact that it has not yet committed to a particular residential dwelling in a particular spot on its land does not render its interest speculative. The applicant’s ability to build freely on its land is directly affected by the Committee’s decision.

[16] I find the applicant’s private rights and interests are affected and am satisfied that the court should entertain its application for judicial review on the merits.

Standard of Review

[17] The parties agree the standard of review of the decision is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653. As noted by the respondents, Vavilov at paragraph 36 requires the court to respect the legislature’s institutional design choices and “adopt a posture of restraint on review”. The court is not to determine what decision it would have made were it the administrative decision-maker. In conducting the reasonableness analysis, the court begins with the tribunal’s decision: Vavilov, at para. 83.

[18] No deference is accorded by the reviewing court on issues that affect procedural fairness: Khorsand v. Toronto Police Services Board, 2023 ONSC 1270(Div. Ct.), at para. 33.

Issues to be determined

[19] The court must determine whether the Committee’s decision was unreasonable and whether the applicant was denied procedural fairness. If the court finds either of the two issues is determined in the applicant’s favour, the court must then determine the appropriate remedy.

i) The decision was unreasonable

[20] There are statutory requirements that govern the Committee’s decision. The relevant Planning Act provisions are as follows:

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.

(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.

(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.

(6) The hearing of every application shall be held in public, and the committee shall hear the applicant and every other person who desires to be heard in favour of or against the application, and the committee may adjourn the hearing or reserve its decision.

(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.

(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.

[21] The parties acknowledge that the test for a minor variance is set out in section 45(1) of the Act. The Committee must decide whether the applicant has established that the requested variance from the by-law 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.

[22] The Committee must consider each of these requirements and must set out in its reasons “whatever may be reasonably necessary to demonstrate that it did so” and that all the requirements were satisfied: Vincent v. Degasperis (2005), 2005 24263 (ON SCDC), 256 D.L.R. (4th) 566 (Ont. Div. Ct.), at para. 11; NOVA Chemicals Corp. v. Dow Chemical Canada ULC, 2025 ONSC 4334 (Div. Ct.), 61 M.P.L.R. (6th) 94, at para. 45.

[23] The respondents submit that the reasons, taken together with the record, permit this court to understand why the Committee reached its decision, and that the Committee’s decision falls within the range of acceptable outcomes.

[24] As noted above, the Committee had before it the planner’s report, which annexed the three neighbours’ letters. The respondents submit that because the planning report articulated the governing test set out in section 45(1) of the Act, the Committee should be presumed to have applied the test.

[25] I accept the respondents’ submission that reasons are not to be assessed against a standard of perfection. A decision maker need not recite all arguments, provisions, jurisprudence or other details in order to deliver adequate reasons. However, this court recently decided that even a perfunctory recitation of the applicable statutory test was insufficient to meet the reasons requirements of a Committee of Adjustment: NOVA, at paras. 47-48, 54-58.

[26] What the Committee did in the case at hand is far less than what the Committee had done in NOVA. Here, the Committee made no reference whatsoever to the test to be applied. There is no way of knowing if it applied the test at all. If it did apply the test, it obviously reached different conclusions from that of the planning report on each of the test’s four components, given that the planner found none of the four criteria was satisfied. Yet there is a complete absence of explanation for the Committee’s decision. There is no way of knowing the basis for its decision, whether it applied the test, or what its reasons were for making a decision that departed in every aspect from the planning report. The only reason the Committee provided is that the kennel “has existed for a long period of time”. There is no explanation of how this consideration is related to or factors into any part of the statutory test. The single reason provided is untethered from the statutory test the Committee is obliged to apply.

[27] The respondent urges the court to look not just at the planning report and the reasons, but the entirety of the minutes, set out in full at paragraph 9 above. However, the minutes do not assist in shedding any light on the Committee’s thought process, the test, if any, that it applied, or the reasons for its decision. In the minutes, the Committee refers to the fact that there have been no complaints during the kennel’s existence. Contrary to what is required under section 45(8.1) set out above, the Committee’s minutes and reasons make no mention of the effect, if any, of the written and oral submissions made to the Committee on its decision. The fact that no complaints had historically been made appears to have overridden, in the Committee’s view, the neighbour’s specific complaints brought to the Committee’s attention when neighbours’ feedback was solicited. Yet there is no indication of why the neighbour’s submission, or the applicant’s submission, had no effect on the Committee. Nor do the minutes, like the decision, refer in any way to the statutory test.

[28] For these reasons, I find the Committee’s decision to be unreasonable.

[29] Given this finding, I need not consider the applicant’s procedural fairness argument.

ii) The remedy

[30] The applicant asks the court to substitute its decision for that of the Committee, and to deny the variance. Such a step is taken when there is no useful purpose to be served by sending the matter back to the tribunal, for example where a particular outcome is inevitable.

[31] That is not the case here. There is no reason to depart from the usual remedy of remitting the matter to the tribunal for a rehearing.

Disposition

[32] The application is granted. The matter is remitted to the Committee of Adjustment for a rehearing. In accordance with the parties’ agreement, the respondents shall pay the applicants costs of $15,000 inclusive of disbursements and HST.

Brownstone J.

I agree _______________________________

Schreck J.

I agree _______________________________

Shore J.

Date: February 10, 2026