Canada: Ontario's New "Deferential" Approach To Planning Appeals – Lessons From Nova Scotia

Those interested in how the new planning appeals system in Ontario will operate may want to look East – to Nova Scotia.

The Ontario government recently unveiled its proposal to overhaul the province's land use planning appeals system. The stated purpose of the legislation is to "give communities a stronger voice."

From my perspective as a lawyer with deep experience in this area in Nova Scotia, these proposed changes could transfer significant power formerly exercised by the Ontario Municipal Board to local tribunals with less power to overturn decisions of local council.

The outcome will be that, when it comes to planning appeals, Ontario will look more like Nova Scotia.

In its current form, Ontario's Planning Act confers the Ontario Municipal Board ("OMB") wide planning jurisdiction. The height of its power is its ability to approve, modify, or reject official plans adopted by a municipal council.

The OMB also has broad discretion with respect to the land use planning grounds it considers in its decisions. For example, in the case of an amendment to an official plan, the OMB may consider not only whether the proposed amendment is consistent with the Provincial Policy Statement on land use planning, but also whether it is beneficial to the broader public interest (such as the possible effects on public health, safety, convenience, and general welfare).

The OMB is currently free to substitute council's decision with its own, provided that it "has regard to" council's decision. This means that the OMB considers all the evidence regarding the planning decision at issue and comes to its own determination of the "correct" outcome of the appeal.

But that's going to change.

Under Bill 139, tabled in June, the OMB would be replaced with the Local Planning Appeals Tribunal (the "Tribunal") that would be mandated to accord greater deference to the planning decisions of local municipal councils.

When adjudicating planning appeals, the Tribunal would be limited to determining whether council's decision is consistent with or conforms to provincial or municipal plans and policies. This mandate is similar to that in Nova Scotia, where the Nova Scotia Utility and Review Board ("NSUARB") only has jurisdiction to interfere with council's decision where it does not reasonably carry out the intent of a municipal planning strategy (the equivalent of an official plan). Interestingly, the proposed Ontario legislation does not, as in Nova Scotia, define the standard of review in terms of "reasonableness".

The proposed Ontario regime adds a second step to the test on appeal which is distinct from Nova Scotia. In Ontario, the appellant would also have to show that the existing zoning or plan under review is not consistent with, or does not conform with, provincial or municipal plans or policies. In Nova Scotia, the NSUARB does not consider whether the current zoning reasonably carries out the intent of the municipal plan.

The case law from Nova Scotia may offer some guidance to planners and developers in Ontario.

The proposed legislation in Ontario places council's decision at the centre of an appeal. This is similar to the appeals process in Nova Scotia. In the case of Federation of Nova Scotian Heritage v Peninsula Community Council, 2006 NSCA 115, Chief Justice MacDonald held that – after the NSUARB makes its findings of fact – it must immediately turn its mind to council's decision and determine whether it reasonably carries out the intent of the planning strategy.

If Ontario's Planning Act is amended as proposed, it is likely that it will be interpreted to direct a similar process on review.

At this early stage, of course, there remains uncertainty regarding the degree of deference that the Tribunal and the Ontario courts will accord to municipal councils under the new regime. The uncertainty stems in part from the absence in the draft legislation of a "reasonableness" standard of review; the two-part test on appeal; as well as the institutional history of de novo consideration of planning appeals by the OMB.

But the experience in Nova Scotia is clear. The inclusion of "reasonableness" in the test allows for a greater range of acceptable outcomes, which in turn affords greater deference to Council.

Under the new Ontario regime, it's unclear whether the Tribunal will find that there is only one correct interpretation of the applicable policy statement or official plan, or, whether there ought to be some regard to a "reasonable" range of decisions by council in line with the relevant planning documents. This analysis is further complicated by the second aspect of the test, i.e., whether existing zoning or plans are consistent with the relevant plans and statements.

Ultimately, the relevance of the Nova Scotia planning appeals experience to the new Ontario regime will turn on whether the Tribunal and the courts interpret the new Act in line with the Ontario government's stated goal to "give communities a stronger voice" in development policy.

If this occurs, the development community in Ontario may benefit greatly from the lessons learned in Nova Scotia under the NSUARB's deferential approach to adjudicating planning appeals.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.