By Steven C. Ferri and Cindy Yi
Since mid-2016, the Province has been undertaking a review of the Ontario Municipal Board (“OMB”). On May 16, 2017, highlights of the proposed major legislative changes were released. Among them was a name change from the OMB to the Local Planning Appeal Tribunal (“LPAT”).
While the Provincial government intends to introduce new legislation shortly, it has not released the proposed legislative changes publicly; it has, however, provided a summary of some of the proposed reforms which have, at least in the opinion of our firm, raised more questions than answers. A summary of the proposed reforms and some of the questions arising therefrom follow.
1. Strengthening community decision-making
- In appeals involving complex land use planning issues, it is proposed that the LPAT will only be permitted to consider whether a municipal decision should be overturned on the basis that it failed to follow Provincial policies or municipal plans. Currently, the OMB can substitute its own decision for that of the municipality’s in the interests of reaching the “best” planning decision even where such decision is found to conform to Provincial policies or municipal plans;
- Where the LPAT finds that a municipal decision should be overturned, it will not substitute its own decision for that of the municipality’s, but rather, the matter will be referred back to the municipality with written reasons. Municipalities will then have 90 days to make a new decision; and,
- The LPAT will be permitted to make its own decisions only in cases where, on a second appeal, the municipality’s subsequent decision still fails to follow Provincial policies or municipal plans.
- How will this back and forth reduce approval timelines?
- How many hearings will this new standard really affect?
- How will the proposed reforms or the rules of the LPAT ensure an effective mediation process given the high threshold to be met for an appeal to be allowed and given the fact that if appeals are allowed, the decision will simply be referred back to the municipality and then potentially back to the LPAT?
- Will the result of these changes increase efficiency and reduce the cost of hearings in circumstances where an appeal is allowed at the first instance and referred back to the municipality for another decision (and potentially a further appeal), thereby creating a two-step appeal process where one step currently exists?
2. Reducing the length and cost of hearings
- It is proposed that mandatory case management will be required for the majority of cases and the LPAT is to be equipped with modern case management powers to ensure meaningful case conferences;
- New rules will set strict presumptive timelines for oral hearings, and in the majority of cases, evidence will be limited to written materials only; and,
- The LPAT will be required to promote “active adjudication”, provide for alternative hearing formats, and continue to allow for more than one member to preside over a hearing.
- How will the proposed legislation or the rules of the LPAT ensure that written hearings will reduce costs and increase efficiency rather than result in a longer and therefore more costly hearing process, similar to the hearing process under both the Municipal Freedom of Information and Protection of Privacy Act and the Freedom of Information and Protection of Privacy Act?
- Currently, the OMB relies heavily on expert evidence – how will the new legislation or the rules of the LPAT address the need to test the evidence of such expert witnesses? Will sur-replies be permitted?
- Will the shift from oral to written hearings increase the frequency of examinations for discovery and will the discovery rules be liberalized to make the discovery process more accessible?
- What types of appeals or hearings will still be held orally?
3. More accessible
- The Province intends to introduce the Local Planning Appeal Support Centre (“LPASC”), a new Provincial agency designed to provide free and independent advice as well as representation to residents for land use planning appeals. It will be modelled after the Human Rights Legal Support Centre;
- Will the proposed legislation include eligibility requirements that must be met prior to support being provided by the LPASC and if so, what will such requirements be? For example, will developers have access to assistance from the LPASC?
- What are the projected costs for funding the LPASC?
- Will it be sufficiently funded to ensure that it is effective?
4. Exempting decisions from appeal
- Provincial approvals of Official Plans and Official Plan updates, including approvals of conformity exercises to Provincial plans as well as Minister’s Zoning Orders, will no longer be appealable;
- The summary of the proposed reforms speaks to removing the right of appeal for Provincial decisions where the Province is the approval authority, however, upper-tier municipalities are the approval authority for Official Plan and Official Plan Amendments for many lower-tier municipalities. Therefore, will decisions made by upper-tier municipalities remain appealable?
- Alternatively, is the Province considering revisions that will deem the Province to be the approval authority for a broader range of Official Plan and Official Plan Amendments?
- Since this will likely affect very few hearings, how will this improve efficiency?
- Local Appeal Bodies, which currently have the jurisdiction to hear minor variance and consent appeals, will be able to hear appeals on site plans as well;
- Applications to amend new secondary plans will be restricted for two years, subject to the discretion of municipal council;
- Interim control by-laws (“ICBLs”) will be sheltered from appeal for a period of up to one year; and
- Municipal policies aimed at approving development around protected major transit station areas, like GO Train stations and subway stops will also be protected.
- How will the proposed legislation or the rules of the LPAT ensure swift hearings of ICBLs after the 1 year moratorium on appeals so that an ICBL does not expire before any potential appeal decision is made?
- With respect to development around major transit station areas, it will be interesting to see what “protected” means in this context. Will appeals be prohibited, restricted, or will there be a higher level of deference to municipal decision-making?
- Will this shut out ratepayer groups from participating in hearings that they currently do participate in?
Perhaps the most vexing question, and the one upon which the summary of proposed reforms released by the Province is silent, is what transition policies will be included in the proposed legislation. It is not yet known whether existing appeals or existing applications will be affected by the proposed reforms. Will it be the date the legislation is introduced? The date the announcement was made? Retroactive so that it is applicable to all hearings in process? Applicable at some date in the future? Depending on the answer to this question, this may result in a flood of appeals prior to the vote on the proposed reforms which we expect in the coming months.
If you have questions about the OMB, LPAT, or any aspect of municipal, land use planning, or development law, please contact one of our lawyers on our website.