Canada: Planning Act Procedure - Comment on Home Depot v. Toronto (City)

Last Updated: January 14 2011
Article by Steven Zakem

The Issue: Does section 26 of the Planning Act apply to a provincial plan conformity amendment?

The Answer: Yes it does.

In SmartCentres Inc. v. Toronto (City), [2010] O.M.B.D. No. 486, the Ontario Municipal Board was presented with a unique procedural question: In adopting its Growth Plan conformity amendment, was the City of Toronto obligated to follow the more onerous procedural requirements of section 26 to the Planning Act? The Board's decision raises an interesting procedural issue regarding how provincial plan conformity amendments are to be handled at the municipal level.

Official Plan Amendment No. 72 was enacted by Toronto City Council on May 27, 2009. The amendment was enacted for the express purpose of bringing the City's Official Plan into conformity with the Growth Plan for the Greater Golden Horseshoe.

In processing OPA 72, the City followed the procedure prescribed by section 21 of the Planning Act which incorporates, by reference, all of the procedural requirements of section 17 of the Act. In layman's terms, the City enacted OPA 72 pursuant to the same procedure it would use for any other municipally-initiated official plan amendment.

There were multiple appeals filed to the Board from City Council's adoption of OPA 72, primarily on substantive grounds. However, one appeal (filed by Home Depot Holdings Inc.) challenged the process by which the City enacted OPA 72. According to Home Depot, the City should have followed the enhanced procedural requirements prescribed by section 26 and not the "normal" procedural requirements set out in section 17.

Section 26 is often referred to as the "Five Year Review" section. It obligates municipal council to turn its mind to the need for amendments to its official plan at least once every five years.

Section 26 was redrafted in its entirety by Bill 51 (in force as of January 1, 2007). New subparagraph 26(1)(a) makes specific reference to the need for Council to amend its Official Plan to ensure that it conforms with provincial plans, matters of provincial interest and provincial policy statements. New subparagraph 26(1)(b) further references amendments made to municipal official plan policies governing areas of employment.

By way of a motion before the Board, Home Depot asserted that in enacting OPA 72, the City was adopting an amendment that fit within new section 26. As such, the City was obligated to follow the enhanced public consultation procedure prescribed by that section, which includes holding a special Council meeting, holding one or more open houses and forwarding the amendment to the Minister of Municipal Affairs and Housing for final approval.

The City resisted Home Depot's motion, arguing that new section 26 still only applies to five year reviews. While acknowledging that section 26 now specifically contemplates provincial plan conformity amendments, the City asserted that it retains a discretion as to whether it will combine a provincial plan conformity exercise with a five year review. As the City chose to not combine its Growth Plan conformity exercise with its five year review, the City argued that Council was at liberty to pass its conformity amendment pursuant to the "normal" procedural requirements set out in section 17.

During the hearing of Home Depot's motion, the City summonsed two staff planners from the Ministry of Municipal Affairs and Housing. Both planners gave evidence that the Ministry had not objected to the City's "choice" to follow the procedure prescribed by section 17. However, both planners agreed on cross-examination that the Ministry had not taken an official position on which procedure (section 17 or section 26) applied to the adoption of a stand-alone provincial plan conformity amendment.

The Board ultimately agreed with Home Depot, holding that new section 26 demonstrates a "willingness and desire on the part of the Province to enhance the consultative process," particularly with respect to provincial plan conformity amendments. The Board further held that new section 26 indicates that the Province is to exercise control over the implementation of a conformity amendment by being the final approval authority. These new directives are not achieved if Council is permitted to adopt conformity amendments outside of the procedure prescribed by section 26.

As the amendments contemplated by OPA 72 were within the four corners of subsection 26(1), and as the City had not followed section 26 in enacting OPA 72, the Board held that the City's Growth Plan conformity amendment could not be approved.

The City is seeking leave to appeal the Board's decision to the Divisional Court. The leave motion is scheduled to be heard this December. At issue will obviously be the appropriate interpretation of section 26 of the Planning Act and whether a municipal authority is obligated to follow the enhanced procedural requirements of that section when it adopts a stand-alone provincial plan conformity amendment. Also at issue will be the level of deference the courts owe to the Board on issues involving the interpretation and application of the Board's "home statute" (being the Planning Act). Our office will update our readers once a final resolution is reached.

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.

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