A Refresher In The Dos And Don’ts Of Challenging Municipal Decisions

In March 2026, the Ontario Divisional Court decided a pair of motions in the matter of West Carleton Community Alliance v. The City of Ottawa et al,¹ arising from a charged dispute over a proposed Battery Energy Storage System (BESS) in Ottawa.

The background

An affiliate of Evolugen and Brookfield Renewable (the Proponent) won a contract from Ontario's electrical power system authority to build a large battery storage facility on land it owns in Ottawa. On the Proponent’s application, Ottawa City Council passed a Municipal Support Resolution (MSR) in June 2025, which indicated that the City was willing to host the BESS. Then, in December 2025, Council approved a zoning by-law amendment redesignating nine hectares of the 81-hectare property from "rural countryside" to "rural general industrial exception zone" to allow the BESS on that portion of the property.

A not-for-profit community group, the West Carleton Community Alliance (the Community Alliance), filed a judicial review application in January 2026 seeking to quash both the zoning amendment and the MSR. The Community Alliance was created eight days after the zoning amendment passed. Four of its directors live within four kilometres of the proposed BESS site.

The Community Alliance’s motion to stay

The Community Alliance asked the court to stay the implementation of the zoning amendment until the hearing of the application, effectively halting the development pending the resolution of the judicial review.

The court applied the standard three-part test, asking (1) whether there was a serious issue to be tried, (2) would the applicant suffer irreparable harm if the stay were not granted, and (3) whether the balance of convenience favoured a stay. 

While the court acknowledged that the applicant had a “difficult road ahead” in light of the jurisprudence, it also acknowledged that on a motion to stay, it was “not the job of [the court] to decide the merits of the application”.² The court found that the Community Alliance cleared the low bar of raising a non-frivolous case on issues of bias, fettering and illegality.

As for irreparable harm, the Community Alliance argued that environmental damage (including threats to species at risk and contamination of the well water of the Community Alliance’s directors) would result should the stay not be granted. However, the court found insufficient evidence of irreparable environmental harm – in fact, the expert evidence that was before Council indicated that the project would not harm species at risk if mitigation measures were followed. It is notable that due to this lack of evidence, the court did not have to grapple with the Proponent’s arguments that the Community Alliance had to show that it would suffer irreparable harm itself, not merely that others would.

On the balance of convenience, the court sided with the Proponent and the City, noting the project faced CA$5 million per month in delay costs and a June 2027 deadline, and that courts owe deference to democratically elected councils. The stay was denied. 

The Proponent’s motion to strike

In the second motion, the Proponent asked the court to strike certain parts of the Community Alliance's application because it was out of time and because it is plain and obvious the grounds asserted cannot succeed, as well as to strike portions of the Community Alliance’s application record, for containing improper opinion evidence.

The Proponent argued – and the court agreed – that the request to quash the June 2025 MSR was time-barred, since it was filed well past the 30-day statutory deadline. The Community Alliance conceded that the MSR was a relevant factual element, but its aims did not require quashing the MSR as well as the zoning amendment.

The court also struck portions of the application that improperly asked the court to review the by-law on "reasonableness" grounds, which Ontario law prohibits,³ absent bad faith or illegality.

However, the Proponent also requested that the court strike sections of the Notice of Application purporting to make allegations related to the common law duty of procedural fairness. The court acknowledged that City Council owed the Community Alliance no common law duty of procedural fairness, but found that the bulk of the relevant section of the pleading could be read as referring to statutory procedural requirements under the Planning Act. The Community Alliance argued that the public was denied meaningful participation because the information underlying Council’s decision was incomplete. The court ordered that a reference to “the principles of procedural fairness” be struck as that clearly referred to the common law doctrine, but declined to strike an entire section titled “Procedural Unfairness and Denial of Meaningful Public Participation”.

Finally, the court struck substantial affidavit evidence from several community members – including a retired engineer, a security officer and a broadcast technician – largely because their critiques of technical reports constituted impermissible opinion evidence from unqualified, non-neutral witnesses. The court stated repeatedly that if critique or interpretation of the Proponent’s technical studies were important to the Community Alliance’s arguments, it needed to provide proper, neutral expert evidence to that end.

The takeaways

The zoning amendment remains in effect and the BESS development can move forward. The Community Alliance's judicial review application survives in narrowed form and will proceed to a panel hearing on the remaining grounds. 

While the merits of the underlying challenge will be determined at a later date, this procedural decision offers some important reminders to parties with interests for or against development:

1. Courts owe deference to municipal decision-makers, and their legislative decisions cannot be challenged as being merely unreasonable.
2. Parties seeking to tie up development with a motion to stay must put their best foot forward and lead with compelling evidence of irreparable harm.
3. Developers arguing against a stay of development approvals are advised to provide concrete evidence about the cost of delays, contractual deadlines and other relevant constraints.
4. Applicants in any proceeding ought to carefully review applicable statutory deadlines or limitation periods.
5. Municipal decision-makers do not owe the public a common law duty of procedural fairness – but that does not mean that applicable laws do not provide similar standards.
6. The courts will only consider opinion evidence from qualified, neutral experts – and opinion evidence includes the critique or interpretation of other opinion evidence.

For more information on this topic, please reach out to Kristyn Annis, Alice Mihailescu and Conor McCarthy.

Please note that this article does not constitute legal or professional advice or a legal opinion of any kind and readers are reminded that legislation and relevant information from legislative/governmental sources, as well as the decisions of the courts, remain the source of truth to be consulted.

Footnotes

1. 2026 ONSC 1372 (“West Carleton Community Alliance”). ↩

2. West Carleton Community Alliance, at para. 24. ↩

3. Municipal Act, 2001, SO 2001, c 25, s 272. ↩