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

Last Updated: December 5 2017
Article by Kevin Latimer and Ryan P.W. Lebans

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.

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.

Kevin Latimer
Ryan P.W. Lebans
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
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