Executive Summary: Key Legal and Evidentiary Issues

• Standing and timing issues arise from a community not-for-profit formed after the zoning amendment, seeking to judicially review both a Municipal Support Resolution (MSR) and a zoning bylaw amendment.
• The scope of judicial review over municipal bylaws is central, including the bar on quashing bylaws solely for “unreasonableness” and the need to show illegality or bad faith under the Municipal Act.
• Allegations of fettering, bias, and failure to provide meaningful public participation engage statutory consultation duties under the Planning Act rather than any common law duty of procedural fairness.
• Environmental, safety, and groundwater concerns are relied on to argue irreparable harm, but are contested by competing expert evidence that predicts no significant adverse impacts if mitigation measures are followed.
• The admissibility of extensive affidavit evidence is tested against the Keeprite exceptions, with much of the residents’ material struck as improper, partisan, or unqualified opinion masquerading as expert critique.
• The balance of convenience analysis weighs community environmental and participation concerns against the Proponent’s tight construction timetable, substantial monthly delay costs, and the public interest in allowing duly enacted municipal bylaws to operate.

Background and facts of the dispute

In 2023, Ontario’s Independent Electricity System Operator (IESO), the body managing the province’s electricity system, issued a request for proposals to procure new electricity capacity. One of the contemplated resources was a Battery Energy Storage System (BESS), a large-scale battery facility that stores electricity for later use. An affiliate of Evolugen Development Limited Partnership and Brookfield Renewable Power Inc. (together referred to as the Proponent) pursued the opportunity to construct a BESS facility in the City of Ottawa. Under the Proponent’s contract with the IESO, it was required to secure a Municipal Support Resolution (MSR) from Ottawa City Council within 20 months of the contract date, demonstrating that the municipality was prepared to host the project. Ottawa City Council passed this MSR on 11 June 2025. Importantly, the recitals to the MSR explicitly stated that it did not constitute planning approval and did not commit Council to any future land-use decisions. The Proponent owned rural land at 2555 and 2625 Marchhurst Road, on which it proposed to site the BESS. To enable the project, the zoning on a portion of this property needed to change. Working with City planning staff and external consultants, the Proponent filed a zoning bylaw amendment application, which City staff deemed complete on 20 October 2025.

On 10 December 2025, Ottawa City Council approved an amendment to Zoning Bylaw 2008-250. The amendment rezoned nine of the property’s eighty-one hectares from “rural countryside” to “rural general industrial exception zone” to permit the establishment of the BESS facility on those nine hectares. Eight days after this zoning amendment passed, a not-for-profit Ontario corporation, West Carleton Community Alliance, was incorporated. It has four directors, all residing within approximately four kilometres of the Marchhurst site, and no formal members. The directors say they represent nearby residents opposed to the BESS, and one director has organized community meetings, letter-writing efforts, and a petition against the project. In early January 2026, the Alliance commenced an application for judicial review. It seeks to quash both the June 2025 MSR and the December 2025 zoning amendment, alleging procedural and substantive defects in how the City reached its decisions and in the content of the bylaw itself.

The nature of the legal challenge

The notice of application pleads several categories of grounds. First, the Alliance alleges procedural unfairness and denial of meaningful public participation, arguing that critical information underlying the zoning decision was incomplete or not made available in time, leaving residents unable to make informed submissions. While the City’s consultation obligations under the Planning Act are acknowledged, the Alliance maintains that the statutory duty was not met in substance because material technical studies and risk information were either deficient or inadequately disclosed. Second, the Alliance claims City Council fettered its discretion and acted with a closed mind after passing the MSR. In its view, by endorsing the BESS in principle to satisfy IESO requirements, Council effectively predetermined the later zoning decision and approached the December 2025 rezoning vote without genuine openness to contrary arguments. Third, the Alliance asserts broader illegality: that the zoning amendment fails to comply with provincial planning directions and requirements, that Council improperly deferred key risk and environmental considerations to the later site plan stage, and that Council’s overall exercise of zoning authority was unreasonable in light of factual and policy constraints. Finally, the Alliance alleges that the Proponent made materially misleading statements on which Council wrongly relied, especially in relation to environmental and technical risk assessments.

The City of Ottawa and the Proponent resist this framing. They emphasize that judicial review of municipal bylaws is highly deferential and constrained. Section 272 of the Municipal Act, 2001 provides that a bylaw passed in good faith cannot be quashed or reviewed merely because it is or is alleged to be unreasonable. They also rely on appellate authority stating that municipalities, when acting legislatively, do not owe common law procedural fairness duties to those affected, and that bias or bad faith in the municipal context requires proof of serious prejudgment or improper purpose, not simply prior policy support or political positioning. The respondents further contend that the planning process followed the Planning Act and applicable regulations, that required public meetings were held, and that extensive expert reports underpinned staff’s analysis and Council’s final decision.

Motions brought before the Divisional Court

Before the underlying judicial review application could be heard on its merits, two interlocutory motions came before the Divisional Court. First, the Alliance moved to stay the operation of the zoning amendment, seeking to halt implementation of the new zoning and effectively pause progress on the BESS project until the judicial review could be determined. Second, the Proponent brought a motion to strike various parts of the application and large portions of the Alliance’s affidavit evidence, arguing that some claims were statute-barred, that certain grounds were plainly untenable in law, and that much of the community evidence constituted improper, partisan opinion without proper expert qualification. The City did not file materials on the motion to strike but expressed support for an appropriate narrowing of the record to keep the proceeding manageable.

The stay motion: serious issue to be tried

On the stay motion, the parties agreed that the RJR-MacDonald test applied: the Alliance had to show (1) a serious issue to be tried, (2) a risk of irreparable harm if no stay were granted, and (3) that the balance of convenience favoured maintaining the status quo by suspending the bylaw. On the first branch, the court recognized that the threshold is low; unless a case is frivolous or vexatious, the court should not weigh the merits in depth at the interlocutory stage. The Alliance argued that its allegations of fettering, bias, illegality, and failure to comply with statutory consultation duties easily cleared this bar. The respondents countered that the governing case law on municipal bylaws, consultation duties, and municipal bias meant the Alliance’s case was doomed in law and therefore failed even at this preliminary stage. While acknowledging that the Alliance faced a “difficult road” and that bylaws attract strong deference, the judge declined to treat the application as frivolous or purely a question of law that could be disposed of on the stay motion. Subject to whatever narrowing might occur on the motion to strike, the court held that the grounds of fettering, bias, and illegality met the “serious issue” threshold.

The stay motion: irreparable harm assessment

On the second branch, irreparable harm, the Alliance submitted that allowing the BESS project to proceed under the new zoning would risk permanent environmental damage, including harm to habitat and species at risk, potential fire and emergency-response dangers, and possible impacts on groundwater and private well water relied on by nearby residents. In environmental cases, it argued, courts should be cautious about demanding irrefutable proof of harm, as damage such as habitat loss can be effectively irreversible in the short to medium term. The Proponent responded that irreparable harm must be shown to the applicant itself, not merely speculative harm to third parties or the environment in the abstract. It emphasized that the Alliance, as a newly incorporated not-for-profit without proprietary interests in the land, could not demonstrate direct legal harm. It also highlighted that the record before Council contained extensive expert reports—covering hydrogeology, noise, tree conservation, emissions, environmental impact, hazard mitigation, and more—concluding that, with mitigation, there would be no significant adverse effects on species at risk or groundwater. The Proponent further argued that, as landowner, it was already entitled to remove trees on the property irrespective of whether the zoning amendment’s operation was stayed.

The judge distinguished the case from prior authorities where regulators had found that a project would cause serious and irreversible harm to a specific endangered species. Here, the court found no comparable evidentiary foundation. The applicant’s fears of environmental degradation and well-water contamination were not supported by expert evidence rising to the level of probable irreparable harm, particularly in light of the mitigation strategies built into the project studies. On that basis, the Alliance was held not to have satisfied the irreparable-harm branch of the test.

The stay motion: balance of convenience

Although the failure on irreparable harm was sufficient to dispose of the stay motion, the judge went on to address the balance of convenience. The Alliance argued that maintaining the pre-development status quo was the prudent course, particularly where environmental risks and public participation concerns were raised, and suggested that any delay would not significantly affect the Proponent because site plan approvals were not yet in place. The Proponent countered that staying the bylaw would prevent site plan approvals from advancing, since those approvals must conform to a valid zoning bylaw. It presented evidence that each month of delay could cost approximately five million dollars and risked missing the June 30, 2027 in-service date required under its IESO contract, opening potential liability to the IESO. The court accepted this evidence and rejected the suggestion that prior project delays were the true cause of any time pressure.

The City stressed that it must balance the interests of the local community with those of the broader region requiring increased energy storage capacity, and that there is a strong public interest in allowing democratically elected councils to implement duly enacted bylaws absent a proven illegality. The judge relied on Supreme Court and Divisional Court authority emphasizing that municipal bylaws are legislative in nature, involve a complex mix of social, economic, political and non-legal considerations, and should not be lightly interfered with by courts. Weighing these competing interests, the court concluded that the interim inconvenience and risk to the Proponent and the City from a stay outweighed the asserted interim prejudice to the Alliance and like-minded residents. As a result, the Alliance failed on the balance of convenience branch as well.

Outcome of the stay motion

Having found that the Alliance met the low threshold on “serious issue,” but failed to establish irreparable harm and the balance of convenience, the court dismissed the motion to stay the operation of the zoning amendment. This left the bylaw fully in force pending the eventual hearing of the judicial review.

The motion to strike: time limits and scope of review

The Proponent’s motion to strike first targeted the claim against the MSR as statute-barred. The MSR was passed on 11 June 2025, while the judicial review application was not commenced until January 2026. Under s. 5(1) of the Judicial Review Procedure Act, an application must generally be brought within 30 days of the decision unless the court grants an extension under s. 5(2). In oral argument, the Alliance conceded that it did not need a formal order quashing the MSR; it accepted that the MSR’s history could simply serve as background to the challenge to the zoning amendment. With that concession, there was no basis to extend time, and the court struck the paragraph of the notice of application that formally sought to quash the MSR.

The Proponent then sought to strike portions of the notice of application framed as challenges based on “unreasonableness” and on common law procedural fairness. It relied on s. 272 of the Municipal Act, which shields good-faith bylaws from being quashed merely for unreasonableness, and on case law holding that elected councils owe no common law duty of fairness when acting legislatively. The judge accepted in part and rejected in part this argument. References that clearly and solely invoked common law “principles of procedural fairness” were struck, on the basis that any procedural challenge had to be anchored in the statutory consultation requirements of the Planning Act rather than in common law fairness doctrines. However, the court allowed the Alliance to pursue its argument that those statutory consultation provisions were not meaningfully satisfied, treating the pleaded complaints about incomplete or inaccessible information as going to alleged non-compliance with s. 34(12) of the Planning Act rather than to a free-standing common law duty.

On the unreasonableness front, the court struck those subsections of the application that invited a direct “reasonableness review” of the bylaw—attempting to have the court re-weigh Council’s policy choices and the evidentiary matrix. It held that if illegality or bad faith were ultimately proven under s. 273(1) of the Municipal Act, the proper remedy would be to quash the bylaw, not to substitute the court’s own legislative judgment on reasonableness. However, the court preserved subparagraphs that, read generously, alleged non-compliance with provincial policy statements and planning requirements or that raised questions about improper delegation or deferral of zoning-related issues to later site plan stages. Those were treated as arguable “error of law” or illegality issues better left to the full application panel to resolve.

The motion to strike: evidentiary rulings on affidavits

A significant part of the motion concerned the Alliance’s evidentiary record. The general rule on judicial review is that the court decides the reasonableness or legality of a decision based on the record that was before the decision-maker. New affidavit evidence is exceptional and must fall within narrow categories recognized in earlier appellate case law: neutral background information, proof of a complete absence of evidence on a key point before the original decision-maker, or evidence going to issues like procedural fairness, improper purpose, or fraud that could not have been raised earlier. Even within those exceptions, affidavits must still comply with ordinary rules of admissibility, including the prohibition on unqualified opinion evidence.

The Proponent argued that many of the Alliance’s affidavits were not neutral background at all, but partisan critiques of technical reports, environmental studies, hydrogeological analyses, noise assessments, and similar material prepared by qualified experts on whom City staff and Council had properly relied. The Alliance’s affiants—nearby residents with varying levels of technical training—were said to be offering their own interpretations and critiques, effectively as shadow experts, without complying with the rules governing expert evidence, including the duty of independence and impartiality.

The court scrutinized each affidavit. In the case of a security officer living nearby, the judge struck paragraphs where he opined on the correctness of wind studies and alleged discrepancies between reports, finding that such critiques were classic opinion evidence requiring proper expert qualification, not the views of a concerned layperson. A retired engineer who had been asked by the community group to compare the City’s hydrogeological guidelines with the Proponent’s terrain analysis report had his entire affidavit struck. Even though he had engineering training, he expressly disclaimed expertise in the specific types of studies at issue, and his affidavit was framed as a critical analysis of technical conclusions, complete with emotive language attacking City transparency—traits inconsistent with neutral expert evidence.

A director of the Alliance, Ms. Spotswood, had three affidavits considered. The court allowed portions that set out personal observations of the site and procedural chronology but struck large sections where she described physical conditions in technical terms, interpreted environmental and planning reports, or argued that particular conditions “should have triggered” specific regulatory consequences. Those were characterized as impermissible, non-expert opinions. Her third affidavit, in which she purported to describe environmental conditions and the ecological consequences of site preparation by reviewing and critiquing environmental impact studies, tree conservation reports, archaeological assessments, and federal legislation, was struck in its entirety save for one factual paragraph.

Another affiant, Ms. Podlesney, a civil engineer and local resident, had sworn a lengthy affidavit critiquing consultation, technical studies, safety and environmental risks, project inconsistencies, and contractual “bonus clauses.” Although she had engineering credentials, the court found that her affidavit functioned as advocacy, not neutral expert opinion, and she had not been properly qualified as an expert. The judge allowed only those parts dealing with procedural steps leading up to the zoning amendment and directed that she could re-swear a narrower affidavit focused solely on those procedural matters. Finally, an affiant with a background in broadcast engineering who critiqued the project’s noise study was held to be offering opinion evidence masquerading as a “gap analysis,” and his entire affidavit was struck for failure to meet expert-evidence requirements and neutrality.

Overall outcome and implications

In the result, the Divisional Court dismissed West Carleton Community Alliance’s motion to stay the operation of the zoning amendment and granted the Proponent’s motion to strike in part. The court removed the formal challenge to the Municipal Support Resolution as out of time, narrowed the legal grounds available by eliminating purely “reasonableness” and common-law fairness claims while preserving arguable statutory and illegality issues, and substantially pruned the Alliance’s evidentiary record by striking most of the community-sourced technical critiques as improper opinion evidence. The respondents were therefore the successful parties on these interlocutory motions. No damages, compensation, or quantified costs were awarded in this decision; the judge instead invited written submissions on costs, so the total amount—if any—ultimately ordered in favour of the successful parties cannot be determined from this ruling.