Canada: What Does The Elimination Of The Ontario Municipal Board Mean? - Preliminary Expectations

Last Updated: June 5 2017
Article by David Tang

The Ontario government has announced that it will introduce legislation to replace the Ontario Municipal Board ("OMB") with a new Local Planning Appeal Tribunal ("LPAT").  The most important change is the elimination of the OMB's power to substitute its decision for decisions made by a municipality or its committees.  The OMB currently makes planning decisions after a fulsome hearing, in furtherance of the goal of implementing good planning.  Instead of that normative approach, the new LPAT will only be allowed to consider whether the decision "does not follow" provincial policies or municipal plans.  If the decision does not fail on those tests, it cannot be overturned - even if the LPAT were to find the initial decision to not be good land use planning.  The LPAT will be required to send the matter back to the original decision maker for another decision.  Only on a successful second appeal would the LPAT be able to substitute its decision for that of the municipality or committee.

As the Province has described it, the LPAT will be a "true appeals body". 

This is a huge change in the land use planning regime for Ontario.  The proposal will need to be implemented through not only legislation but in detailed regulations and Rules for the LPAT, transition provisions for the OMB and the municipalities and the allocation of funding for not only the LPAT but also the new Local Planning Appeal Support Centre, a provincial agency which is to provide free and independent advice and representation to Ontario citizens. 

Some of the other changes which exclude certain decisions from appeal (e.g. new Official Plans, major Official Plan updates and provisions dealing with growth in major transit areas) are continuations of the changes the Province has introduced in recent years to shelter major planning decisions from appeal, although those changes are potentially more sweeping than what has come before because they focus on "who" makes the decision without also considering what the subject matter of the decision is. 

Rather than provide a summary of the Province's already short outline, this article will offer some preliminary thoughts and suggestions for land owners who may be wondering what, if anything, they should do now.   Miller Thomson will offer our thoughts to municipalities and public bodies separately in another article. 

The Ontario "Backgrounder" can be found here.

  • We believe that the overall impact of these changes is to make the land development appeal process more legally oriented than it is currently.  Today, it is planning and other expert professionals who play the primary role in allowing the OMB to assess what is the ""best" planning decision".  
  • The Ministry has said that it understands a transition period is needed and will work to "define the appropriate transition period".   It is clear that in addition to the legislation, which is likely to be introduced quickly before the Legislature breaks for its summer recess at the beginning of June, regulations and rules for the LPAT will need to put in place.  While we do not know what those transition provisions are going to be and whether the legislation will attempt to make the new regime retroactive to filed appeals, it is not unreasonable to expect that appeals already underway will continue to be heard by the OMB.   Landowners with development interests should immediately consider whether they want to move ahead under the existing regime and file appeals if needed to the OMB. 
  • The Provincial Backgrounder introduces the term "does not follow".  There are already a range of standards which municipalities and the OMB apply to various planning documents, ranging from no "conflict" (Niagara Escarpment Plan), through "conform" (Official Plans, Places to Grow Plan, Greenbelt Plan, Oak Ridges Moraine Plan) and "consistent" (Provincial Policy Statement) to "have regard to" (matters of Provincial interest).   The manner in which that term is either clarified or expanded upon in the new legislation, the regulations or through litigation is going to determine how narrow the appeal rights are going to be at the LPAT.   Landowners will now want to be careful and strategic in structuring their planning applications at the very outset to maximize the potential for appeal.  This should involve strategic legal input at an early stage of the application process to preserve the potential for an appeal to the LPAT since these will primarily be legal disputes.
  • We expect those unhappy with local decisions will resort more in the future to purely legal challenges.   Judicial review applications to the Courts will almost certainly increase once the more flexible and end-result oriented OMB appeals are no longer available. 
  • The flow chart which accompanied the Provincial announcement indicates that examination and cross-examination of witnesses will not be allowed at LPAT hearings.   The press release does however suggest that evidence will be limited to written materials in the "majority of cases", which does suggest there may still be some ability for the LPAT to hear from witnesses.  Nonetheless, in the majority of cases, lawyers will now be the primary players before the LPAT instead of planners and other consultants.   The hearings will likely become more adversarial with the loss of the idea (and indeed the OMB Rule) that the focus of OMB hearings is on expert witnesses offering "fair, objective and non-partisan...assistance" to the OMB.  Instead of primarily hearing from those whose "duties [to the OMB] prevail over any obligation owed by the expert to the party by whom...he or she is engaged", the LPAT will primarily hear argument.  Landowners' applications and materials will now need to be prepared on the assumption that expert evidence will not be heard but must be fully set out in the legal record.
  • Every appeal to the LPAT will now undergo a mandatory case conference to explore settlement and to narrow the issues.   These may play an important role in resolving appeals, particularly where appeals are brought by ratepayers or neighbours.  Once details of how the Local Planning Support Centre will provide assistance and funding is provided, we will see how significant a role it and neighbours will play in the process.
  • The proposal to allow Local Appeal Bodies to hear site plan appeals will have little initial impact because the City of Toronto remains the only municipality where such a body has even been set up. 

It is likely that the legislation will be introduced next week before the Legislature breaks for the summer.   We, like every other stakeholder in the Province, can only say at this point that the "devil is in the details".  We will continue to monitor and provide commentary as the legislation, the regulations and Rules are developed.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

David Tang
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions