Real Estate Law: Major Changes Coming to the Ontario Municipal Board

Major Changes Coming to the Ontario Municipal Board

Read time: 4-5 minutes

Ontario Municipal Board Changes | Bill 139 had its first reading on May 30, 2017, its second reading in September and has been ordered for its third reading. As the Bill currently stands, it will significantly change the process by which local planning decisions are reviewed, shifting power from the Ontario Municipal Board (“OMB”) to municipal councils and local planning authorities. This will provide municipalities with increased control over land use, making it considerably more challenging for the tribunal to reverse or alter municipal decisions.

The proposed changes are the subject of much controversy. Land developers fear that these changes will make it significantly more challenging to develop land, while some citizens and community groups feel that these changes will finally give them a voice in local planning decisions. One thing to consider is whether the proposed changes will take away from the planning process, focusing too much on politics, as opposed to making decisions based on what the best expert evidence from land use planners, architects and engineers indicates.

Changing the name of the tribunal from Ontario Municipal Board to Local Planning Appeal Tribunal (“Tribunal”) is just one of the many proposed changes in the legislation.

Here are three of the major changes proposed in the legislation:

Eliminating De Novo Hearings

Currently, the OMB has the ability to conduct de novo hearings. This means that the Ontario Municipal Board can hear evidence and make a decision independent of the initial decision by a municipal council. This method has allowed the OMB to overturn decisions from municipal councils and substitute their own decisions, rectifying situations where the municipal council did not reach the best decision based on the expert evidence and decision-making ability.

The proposed legislation will considerably reduce the Tribunal’s jurisdiction. The Tribunal’s ability to overturn a municipal decision would be limited to situations where the decision is inconsistent with, or does not conform to, provincial policies or municipal plans. If the Tribunal did overturn a decision, it would be forced to return the matter to the municipal council for reconsideration, providing reasons for its decision. If the matter is appealed a second time the Tribunal would be permitted to substitute its own decision. This shifts the focus of the Tribunal to reviewing decisions rather than conducting new hearings based on full expert testimony. This is dangerous because the initial decision could be based on political motives and not the best land use planning or other evidence.

The Tribunal would be able to bypass these proposed rules only if the Minister identified the appeal as a matter of provincial interest. This would allow the Tribunal to substitute its own decision on a first appeal, subject to approval from the Lieutenant Governor.

Ontario Municipal Board – Limiting the Scope of Appeals

Bill 139 significantly reduces the range and scope of decisions that can be appealed to the Tribunal. Appeals related to provincial approvals of official plans and official plan updates will only be permitted with approval from the Minister. Appeals of higher order transit designations and the associated by-laws will only be allowed if submitted by the Minister. Additionally, appeals related to applications to amend new secondary plans within two years and interim control by-laws within one year will not be permitted without approval from municipal council. These changes would leave municipal councils with the power to make final decisions in relation to these types of decisions. Municipal councils will use this power to its fullest extent, to be sure.

Creating the Local Planning Appeal Support Centre

The legislation proposes to create the Local Appeal Support Center. This center would provide free general information on land use planning, guidance through Tribunal procedures and legal and planning advice. The center would also provide representation before the Tribunal in limited circumstances.

This center would make the appeal process more accessible to citizens and volunteer-based community groups, who often criticize the current process as being more favourable to developers. Citizens and volunteer-based community groups do not have the resources to compete with developers, causing them to feel as though their voices are being silenced before the Ontario Municipal Board.

One wonders whether this will assist in evening out the legal playing field when decisions will be so controlled by municipal councils in any event.

The changes proposed in Bill 139 are the topic of many debates. Some people, such as land developers, argue that these changes will give too much power to municipalities, making land development significantly more challenging. Others, such as citizens and volunteer-based community groups, contend that these changes will rectify the longstanding imbalance of power at local planning appeals before the OMB. With all of the political debates, it is easy to lose sight of what is best for the legal process. The legal process should be focused on making decisions based on what the best expert evidence indicates, not on politics.

Given the already limited supply of new housing (especially in Toronto), these proposed changes may further encumber the development process and ultimately reduce the housing supply if developments are rejected at the municipal application stage. This benefits no one and is a further cost to prospective home buyers and families.

Furthermore, the elimination of de novo hearings will make breaches of procedural fairness a matter of course and process, which in our view, is a deplorable consequence of Bill 139.

Please contact Michael Paiva for more information about the changes coming to the OMB, or if you require assistance with a local planning appeal.