Guidelines Are Not A Millstone: A Refresher On The Status Of Non-statutory Guidelines In Ottawa (City) V. Ottawa (City)

In January 2025, the Ontario Land Tribunal issued a decision in Ottawa (City) v. Ottawa (City)¹, concerning an appeal by the City of Ottawa of a Committee of Adjustment decision to amend a condition of provisional consent for a rural two-lot severance. The Committee’s approved amendment to the condition acknowledged a minor sodium aesthetic exceedance in the groundwater and permitted the use of a water treatment system to address concerns.

At issue in the appeal was the legal status of non-statutory guidelines, including Guideline D-5-5 and the City’s Hydrogeological and Terrain Analysis Guidelines, which the City relied upon to challenge the Committee’s decision. The Tribunal dismissed the City’s appeal, finding that the amended condition conformed to the Official Plan, was consistent with the Provincial Planning Statement, and had appropriate regard for the guidelines used by the City pursuant to section 2.1 of the Planning Act. In doing so, it held that provincial guidelines are “only interpretive tools for which regard may be had, and not a millstone that defeats the consent application by default.”²

While the decision turned on the specific facts of a rural severance application, it offers an important reminder to municipalities and approval authorities: non-statutory guidelines do not have the same status as binding regulations, particularly where practical solutions exist and health-based standards are satisfied.

The Committee of Adjustment’s amendment to Condition No. 5

Ottawa Trim & Door (the Applicant) applied for consent to sever two residential lots from a large rural property at 7665 Bleeks Road. A previous Tribunal decision in 2022 granted the severance subject to conditions. The last outstanding condition – Condition No. 5 – required the Applicant to demonstrate that “the quality of the water meets the Ministry of the Environment, Conservation and Parks Regulations, Standards, Guidelines and Objectives.” When wells were drilled and tested, the water met all health-based parameters but showed a minor aesthetic exceedance of sodium of less than 10%. With treatment using a reverse osmosis system, the sodium concentration would be reduced from 210 mg/L to <1 mg/L.

The Applicant sought to amend the condition to acknowledge this aesthetic exceedance and require the installation of a separate water treatment system. The City appealed, arguing that under Guideline D-5-5 and its own Hydrogeological and Terrain Analysis Guidelines, water exceeding the maximum concentration considered reasonably treatable (MCCRT) could not be approved.

The Tribunal weighs in

The Tribunal disagreed. It found that the Official Plan requires the City to be satisfied that groundwater quality “meets or exceeds the Ontario Drinking Water Standards, Objectives and Guidelines,” but drew a critical distinction: the Official Plan provisions requiring guidelines to be followed in this case are only submission requirements and not the criteria to grant approval of an application³. Since sodium is classified as an aesthetic characteristic under the ODWS, as one that “does not directly affect the safety of the water supply,” and both experts agreed that health-based standards were fully met, the Tribunal found conformity with the Official Plan.

The Tribunal also found that the cost of drilling new wells with no certainty of finding a better water source was “likely cost prohibitive compared to a RO system which, […] is less than $2000.” Five-layer filter test results confirmed that treated water fell well below the sodium limit, demonstrating that water beyond the MCCRT could in fact be treated.

Guidelines as interpretive tools, not determinative standards

The most significant aspect of the decision concerns the Tribunal’s treatment of provincial guidelines under section 2.1 of the Planning Act. That section requires the Tribunal to “have regard to” information and material that a municipal council or approval authority considered in making its decision.

The Tribunal acknowledged that the City uses Guideline D-5-5 and its own Hydrogeological and Terrain Analysis Guidelines as part of its decision process, but noted that neither is explicitly referenced in the Official Plan. Drawing on Bertone Montreal Road LP v. Ottawa (City)⁴, the Tribunal confirmed that guidelines are non-statutory and that “having regard to” them is a lower standard of review than “conformity” with the Official Plan. The Tribunal then delivered its key finding: the guidelines “are only interpretive tools for which regard may be had, and not a millstone that defeats the consent application by default.”⁵

This language is unambiguous. A municipality may have regard to non-statutory guidelines. It may use them to inform study requirements and frame the scope of technical submissions. But it cannot treat them as an automatic veto on development where the statutory tests are otherwise met.

The message for municipalities and approval authorities seeking to rely on non-statutory provincial guidelines as a basis for refusal: guidelines inform, but they do not determine. Site-specific circumstances, proportionality and the statutory planning hierarchy must all be considered. Rigid, blanket application of non-statutory guideline thresholds will not withstand scrutiny before the Tribunal.

For more information on this topic, please reach out to Roberto Aburto and Alice Mihailescu.

Footnotes

1. Ottawa (City) v. Ottawa (City), 2025 CanLII 5397 (ON LT).↩

2. Ottawa (City) v. Ottawa (City), 2025 CanLII 5397 (ON LT) at para 71.↩

3. Ottawa (City) v. Ottawa (City), 2025 CanLII 5397 (ON LT) at para 57.↩

4. Bertone Montreal Road LP v. Ottawa (City), 2023 CanLII 64021 (ONLT).↩

5. Ottawa (City) v. Ottawa (City), 2025 CanLII 5397 (ON LT) at para 71.↩