June 2, 2026

By Mark Mikulasik

Municipalities as administrative decision makers owe a duty of procedural fairness to those affected by their decisions.

In Ontario, if somebody thinks that a decision does not meet that standard, they may apply to the Divisional Court for judicial review.

The good news if you are a municipality, and the challenge if you are an affected party, is that in Christian Heritage Party of Canada v. Hamilton (City), the Ontario Court of Appeal, on an appeal from a Divisional Court decision, confirms that the decision making process does not need to be perfect.

Also, a “relatively low-level administrative decision” is held to a lower standard than an adjudicative decision (such as a zoning decision under the Planning Act), even if that administrative decision affects “significant interests”.

THE ISSUES

What is the standard of review?

What is the framework for analyzing whether the duty of fairness was met?

THE CASES

Like most cases, the Christian Heritage case builds upon earlier cases. What makes it interesting is how it draws those cases together and applies them to the facts.

It is always important to remember facts are more important than law, especially in judicial reviews. The law is fairly simple but applying it to the facts can be tricky.

So, let’s look at the basics.

The standard of review

The standard of review applied here is the usual standard for judicial review, which was restated in a case referred to as Vavilov, which really excited a lot of lawyers about technical details, but for your purposes, can be simplified as saying that the standard of review of an administrative decision is usually reasonableness, with a few exceptions where the standard is correctness.

We have written before about reasonableness and judicial review.

Christian Heritage confirms, applying an earlier decision of the court,  that in cases of procedural fairness, the focus is not on which standard may apply, because “the use of the ‘correctness’ standard can be awkward and confusing in such a context”.

The Court of Appeal instructs us that “the question for the reviewing court is to assess whether decision-maker discharged its duty of fairness.”

Which brings us back to reasonableness: “Accordingly, the issue is whether the appellants have shown the City’s decision to be unreasonable…”.

However, it is not quite that simple. The court divides the issues and decides that ‘the City’s identification of the Charter rights and the scope of their protection is subject to a standard of correctness”.

Where does reasonableness come in?

“The City’s balancing of those interests with the City’s statutory objectives, however, is subject to a standard of reasonableness.”

Awkward and confusing indeed. Ultimately, fairness is what matters most.

The framework for analyzing fairness

This is not a brand-new issue. The Supreme Court of Canada, in a 1999 called Baker, set out a list of five criteria to be considered:

(a)         The nature of the decision to be made and process followed in making the decision;

(b)         The nature of the statutory scheme and the terms of the statute pursuant to which the body operates;

(c)         The importance of the decision to the individuals affected;

(d)         The legitimate expectations of the person(s) affected by the decision; and

(e)         The agency or administrator’s choice of procedure.

Christian Heritage confirms that when reviewing criterion (c), the City acted reasonably in considering not only the high importance of the decision to the applicant but also was entitled to consider the interests of other affected persons (in this case, transgender persons and other gender non-conforming people).

The case also confirms that the choice of process is up to the City.

What was important to determining whether or not that was fair was that:

• the applicant was consulted,
• the decision was administrative rather than adjudicative in nature, and
• the City’s process overall was reasonable and proportionate.

 

The use of “reasonable” to determine “fair” is circular, so by eliminating those synonyms, we are left to conclude that what really counts is that the process must be proportionate. Which is consistent with the court’s comments about low-level decision-making being held to a lower standard.

There was an issue as to the extent of consultation.

That is where the imperfection comes into play.

The City argued that it had:

• provided an opportunity to CHP to participate through its forthright communications with CHP’s counsel, which identified the issues that the City was considering;
• provided answers to the questions posed by CHP’s counsel in correspondence; and
• had provided had multiple opportunities for the CHP to put forward any submissions or evidence that it wished.

 

The Divisional Court noted that “CHP does not identify what other views it was prevented from expressing or what the City should have but failed to consider in reaching its decision.”

The Court of Appeal points out that: “There is no reason why the City’s correspondence with CHP could not have expressly invited responses, submissions and further evidence, if any, from CHP.”

Despite this, the court goes on to say that: “the record shows that CHP had ample opportunities to participate in the City’s process.”

This, the Court of Appeal says, met the duty of fairness.

What about Charter Rights?

Going back to the application of the correctness standard to “identification of the Charter rights and the scope of their protection”, the Court  sets out three inquiries necessary in that analysis:

(1) the decision-maker should assess the negative effects of the decision on the exercise of the right asserted, as well as any collateral effects, for example, creating a chilling effect on the rights of others;

(2) the decision-maker should assess the positive effects or benefits of that disposition in terms of the public good; and

(3) the decision-maker should undertake the proportionality analysis by assessing, for example, whether the disposition involves means that are always impermissible, whether the disposition is needed to achieve the good sought, or whether the negative effects or costs imposed by the disposition are out of proportion to the public good to be achieved.

This exercise must be “robust.”

The court was satisfied that in this case; the City met that test.

The appeal was dismissed and the City’s decision was upheld.

TAKEAWAYS

• A low-level administrative decision is held to a lower standard than an adjudicative or policy decision even if that administrative decision affects significant interests.
• The choice of process is up to the municipality.
• The decision-making process does not need to be perfect.
• It needs to be reasonable.
• The Baker framework applies to determine fairness but does not need to be applied like a checklist.
• If Charter values are involved, a more robust process is required.

 

HOW WEILERS LLP CAN HELP YOU

At Weilers LLP, we:

• Have a history of over 80 years of dealing with municipal issues throughout Northwestern Ontario, from Red Lake and Kenora to Thunder Bay and White River, and everywhere in between;
• Advise both affected clients and municipalities about municipal decision-making;
• Advise municipalities on their decision-making processes, to reflect the proper approach; and
• Represent either municipalities or affected parties in any court proceedings that might challenge a municipal decision.

 

Whether you are a municipal decision maker, or are affected by a municipal decision, Weilers LLP may be the right law firm for you.