Canada: An Early Review Of Toronto's Local Appeals Tribunal

The Ontario Municipal Board ("OMB") is currently in the process of being replaced and its ambit of responsibility will change. On May 16, 2017, the Provincial Minister of Municipal Affairs and the Attorney General of Ontario announced the Province's decision to "overhaul" the OMB and replace it with the Local Planning Appeal Tribunal (the "LPAT"). The proposed changes will dramatically alter Ontario's land use planning system.

In addition to these proposed changes, Toronto's City Council has constituted the Toronto Local Appeal Body (the "TLAB"). The TLAB was constituted for the City of Toronto under s.115 of the City of Toronto Act. Pursuant to Chapter 142 of the Toronto Municipal Code  (PDF), the TLAB became effective on May 3, 2017. The majority of appeals from Committee of Adjustment decisions will no longer be heard by the OMB. These decisions will now come under the purview of the newly created TLAB. This is the first formal step which has occurred in an on-going process to narrow the influence of the OMB.

An Overview of the TLAB:

The TLAB is a quasi-judicial, independent tribunal with the same judicial power as the OMB. This means that it can adjudicate disputes falling under its jurisdiction. The tribunal is comprised of seven members who serve for a term of four years. Members are nominated by a citizen committee. The nominees are then appointed by city-council. The current appointed members are: Ian Lord (chair), Stanley Makuch, Gillian Burton, Sabnavis Gopikrishna, Laurie McPherson, Sophia Ruddock and Ted Yao. Five of these seven individuals are lawyers, one is a land use planner and one has tribunal experience.

Every TLAB hearing must be presided over with at least one of the seven members present. The newly created tribunal hears minor variance and consent appeals under sections 45 and 53 of the Planning Act for property located in the City of Toronto. The appeals must be dated on or after May 3, 2017. Examples of the types of proceedings include: consents for severance, non-conforming structures and uses and decisions about minor variances.

The same rules which are applicable to City Council meetings will also apply to the TLAB. Members of the public will be able to submit either written or oral submissions to the tribunal. They will also be able to obtain the tribunal's agenda and meeting minutes online as well as details relating to all scheduled hearings and decisions. It will be interesting to see if this more open format will enable the public to have a greater ability to shape TLAB decisions. On a cautionary note, although this procedure was created to be more streamlined, if there is substantial interest from external public intermediaries, the process may become more arduous and costly for those who are the official TLAB participants. Since this is a pilot program, a number of unknowns still remain.

The Process:

The TLAB has already released its own Rules and Procedures and administrative forms which differ from those provided by the OMB. For instance, an appeal to the TLAB will now commence when a Notice of Appeal is filed, on a CD/DVD in PDF form, with its corresponding $300 filing fee. The process is now paperless and all documents used in the hearing must be exchanged via email in PDF form. This includes visual evidence.

It is important to highlight that the timelines for the process have significantly altered from those currently used by the OMB. Once the Notice of Hearing is initiated, applicants have 15 days from the date of the Notice to revise their original application. Within 30 days, after the Notice of Hearing is served, the parties must disclose all the documents which they intend to rely on during the subsequent hearing. These tight timelines should cause concern because they may prove to be unduly burdensome for those involved in the TLAB process. 

Finally, the new TLAB Rules of Practice and Procedure have created a 30-day Quiet Zone before a scheduled hearing. This means that neither the parties nor the TLAB will be able to file, conduct TLAB-assisted mediation, or raise any motions or formal actions during this time, unless ordered to by the TLAB. The purpose of the Quiet Zone is to encourage parties to further explore settlement and duly consider the need for litigation.

The Remaining Power of the OMB:

The OMB is itself undergoing extensive provincial reforms. The Ontario government has announced its plans to restructure the OMB pursuant to the Building Better Communities and Conserving Watersheds Act, 2017 (Bill 139) (PDF). The changes proposed in Bill 139 mean that the OMB will be replaced by a newly constructed statutory body called the Local Planning Appeal Tribunal (LPAT). This tribunal would have a provincial mandate to place greater weight on local decisions and concerns for appeals regarding land use and development. Currently, the OMB is only required to "have regard to" a municipality's decision. It has the power to make its own decision without significant consideration or reliance on the municipality's initial conclusion.

The proposed new mandate would allow the LPAT to only overturn municipal decisions, in land use planning appeals, which fail to follow provincial policy or a municipality's plan. Essentially, this will ensure that planning decisions brought before the LPAT will proceed as appeals instead of de novo hearings. De novo hearings enable the OMB to principally re-determine municipal land use planning decisions on their merit instead of conducting a review of the planning decision.

Pursuant to the new process, the municipality would be provided with 90 days to respond to the LPAT decision. If the LPAT finds that the municipality's plan is still a violation of provincial policy or municipal planning, the tribunal would then have the authority to substitute its own decision. This new model places a greater emphasis on local decision-making. However, this new back-and-forth process will likely increase approval timelines and developers should be aware of this when they appeal a decision to the LPAT. A prolonged process may also increase the cost because the newly proposed process has now effectively become a two-step appeal.

Sheltering major planning decisions from appeal:

The proposed legislation exempts a significant number of previously appealable municipal land use planning decisions from the ambit of the LPAT. These include:

• provincial approvals of official plans and official plan updates, including approvals of conformity exercises to provincial plans; and
• Ministerial Zoning Orders.

The proposed legislation also protects municipal policies which support development around major transit hubs, for example, subway stations and GO Train stops. These new measures will ensure that municipalities are able to implement major decisions with increased certainty and efficiency.

Changes to the conduct of the LPAT:

One of the primary changes to the tribunal system will be the introduction of mandatory case conferences for all Planning Act appeals. Now, at any stage of the process, the LPAT has the power to examine a party or a person who makes a submission but, is not a party to the proceeding. The LPAT can require them to produce evidence and/or witnesses for examination. The rationale behind these changes is a supposition that this may result in more efficient hearings.

Bill 139 provides the Minister with the authority to draft regulations:

• governing the practices and procedures of the Tribunal, including prescribing the conduct and format of hearings, practices regarding the admission of evidence and the format of decisions;
• providing for multi-member panels to hear proceedings before the Tribunal and governing the composition of such panels; and
• prescribing timelines applicable to proceedings on appeals to the Tribunal under the Planning Act¹

The potential regulations remain unpublished. Therefore, it is difficult to comment on their content. However, the flow chart which is adjacent to the Province of Ontario's announcement, indicates that examinations and cross-examinations of witnesses will no longer be permitted at LPAT hearings. Additionally, the Province of Ontario's press release states that "strict presumptive timelines for oral hearings" will be enforced and there will be a limit for "evidence to written materials in the majority of cases." This will be a shift in the manner in which the OMB currently operates because the Board often relies on expert evidence. No further information has been provided relating to how the LPAT will test and examine the written evidence of experts. It will also possibly cause lawyers, rather than consultants and urban planners, to play an increased role at the tribunal process.

Conclusion

The City of Toronto is the first municipality in Ontario which has implemented a Local Appeal Body based on the powers provided to municipalities by the Province of Ontario in 2006 under Planning and Conservation Land Statute Law Amendment Act, 2006, Bill 51.  As a consequence, other municipalities in the Province will carefully monitor how the tribunal process unfolds in Toronto and determine if it is actually able to achieve positive results.

One of the most pertinent issues relating to the proposed creation of the LPAT is the transition policies which will be implemented in the proposed legislation. As of yet, little information has been provided which identifies the procedure which will occur for existing appeals and whether or not there will be a retroactive date concerning them. The answer to these question may result in an increased number of appeals in the months before the vote on the proposed legislation. 

Fasken Martineau will continue to monitor both the TLAB and the LPAT and the introduction of any additional legislation.

Footnotes

1 section 43 of the proposed Local Planning Appeal Tribunal Act, 2017 (PDF).

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.