For many decades, the independent Ontario Municipal Board (OMB) has held public hearings and rendered binding decisions on appeals, applications and other matters arising under numerous provincial statutes, including the Planning Act.
However, some stakeholders have criticized OMB hearings as being too costly, time-consuming and inequitable, while others have complained that OMB decisions tend to be “pro-development” and “anti-democratic” by approving projects that had been refused by duly elected municipal councils.
In response to these concerns, the Ontario government undertook public consultations in 2016 to solicit input on how to make the province’s land use planning system more timely, efficient and effective. CELA submitted a brief that offered 21 recommendations for land use planning reform, including certain changes to the OMB hearing process.
After considering over 1,100 submissions received during the public consultation period, the Ontario government introduced Bill 139 (Building Better Communities and Conserving Watersheds Act, 2017) for First Reading in May 2017.
Bill 139 contains five different schedules:
- Schedule 1 repeals the Ontario Municipal Board Act and replaces the OMB with a new appellate tribunal, known as the Local Planning Appeal Tribunal (LPAT);
- Schedule 2 creates a new Local Planning Appeal Support Centre (LPASC) to provide certain support services to eligible persons involved in land use matters under the Planning Act;
- Schedule 3 amends the Planning Act, City of Toronto Act 2006, and Ontario Planning and Development Act 1994;
- Schedule 4 amends the Conservation Authorities Act; and
- Schedule 5 amends a number of other provincial statutes, including the Aggregate Resources Act.
In June 2017, CELA and other groups filed a joint submission in relation to Schedule 4 of Bill 139 in order to suggest amendments to enhance watershed planning and protection across Ontario.
More recently, CELA filed a detailed brief in relation to Schedules 1, 2, 3 and 5 of Bill 139. CELA’s overall conclusion is that these schedules constitute a regressive reform package that subverts, or wholly eliminates, important procedural rights and substantive protections currently enjoyed by Ontarians under the existing land use planning system.
For example, in relation to Planning Act appeals, Bill 139 purports to:
- reduce the number and types of matters which may be appealed to the LPAT;
- limit the grounds of appeal that can be advanced before the LPAT;
- eliminate de novo hearings before the LPAT, and restrict who can participate in LPAT’s written or oral hearings (if held);
- constrain how LPAT hearings will be conducted (e.g. no testimony under oath, no cross-examinations by parties, etc.);
- narrow the LPAT’s decision-making authority, even where appeals are allowed (e.g. by requiring the matter to be remitted back to the municipality or approval authority for a second decision, which can then trigger a second round of appeals to the LPAT); and
- stipulate that the as-yet unwritten LPAT rules of practice and procedure prevail over the Statutory Powers Procedure Act (SPPA) where there is “conflict” between the LPAT rules and the procedural safeguards entrenched in the SPPA.
In CELA’s view, none of these rollbacks from the current land use planning regime can be considered as progressive, justifiable or protective of the public interest. To the contrary, Bill 139 will make it exceedingly more difficult for CELA’s client community to play a meaningful role in the land use decision-making process, or to ensure that decision-makers are held accountable through appropriate appellate procedures.
At the same time, Bill 139 contains no new provisions aimed at removing or reducing the financial barriers currently faced by residents or non-governmental organizations who participate in the land use planning system, and who often encounter well-resourced municipalities and/or deep-pocketed developers.
Accordingly, CELA recommends that Bill 139 should not be passed in its present form. In the event that Bill 139 receives Second Reading, then CELA recommends that the Bill should be referred to a standing committee for public hearings. CELA will be closely monitoring and responding to the Ontario government’s next steps in relation to Bill 139.