Land Use Planning Evidence: The Basis for your Municipal Appeal | Real Estate Law

Land Use Planning Evidence: The Basis for your Municipal Appeal

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Land Use Planning

If you plan on bringing an appeal to the Ontario Municipal Board (“OMB”) or to the forthcoming Local Planning Appeal Tribunal (“LPAT”), you better have a good land use planner experienced with giving written and verbal evidence on your side. Otherwise, you are unlikely to see the results you are seeking.

Jurisdiction of Land Use Planning Tribunals

Simply put, the arbitrator only has jurisdiction to award or reject an appeal based on the land use planning evidence put before the tribunal. Without compelling land use planning evidence, the arbitrator will be forced to dismiss an appeal. In Ding v Cruz, 2015 Carswell Ont 7277 (OMB), the OMB stated it could not grant an appeal for a minor variance application because the Applicant failed to produce any land use planning evidence upon which they could authorize the requested variance.

The same rule applies to implement a settlement, which must be approved by the OMB or LPAT, even if both parties consent. Ultimately, the tribunals are concerned with whether the settlement represents sound land use planning. If the settlement does not meet this test, the matter will have to proceed to a hearing, unless the parties reach a new settlement.

Admissibility of Opinion Evidence

Only witnesses who are properly qualified as an expert will be permitted to submit opinion evidence at an OMB or LPAT hearing. In Abingdon Meat Packers v West Lincoln (Township), 1990 OMBD No 1054 (OMB), the OMB stated that witnesses cannot give opinion evidence unless they have expertise in the field. Experts must also exclusively give evidence on the area of their expertise. For example, a land use planner will not be permitted to provide engineering or real estate appraisal evidence during their testimony.

Land use planning tribunals rely on the test from R. v Mohan, [1994] 2 SCR 9 (SCC) to determine if expert opinion evidence is admissible in the hearing. The Supreme Court of Canada stated in R v Mohan that the opinion evidence must meet the following four criteria to be admissible:

  1. The evidence is relevant to some issue in the case;
  2. The evidence is necessary to assist the trier of fact;
  3. The evidence does not violate an exclusionary rule; and
  4. The witness is a properly qualified expert in the matters to which they are testifying to.

Additionally, testimony must be fair and objective in accordance with Rule 21.01 of the Ontario Municipal Board Rules of Practice and Procedure. Despite the fact that the expert has been engaged by one of the parties to testify on their behalf, experts must remain neutral and cannot act as an advocate. These rules assist in producing credible evidence for the tribunals.

Battles of the Experts

Sometimes more than just planners are necessary. Other experts, such as engineers or architects, may be required depending on the scope and complexity of the matter on appeal. Often in appeals there are teams of experts who give evidence in their respective areas of expertise. Having a team of experts can assist in building a stronger and more thorough case. The heavy reliance on expert witnesses can lead some to view the land use planning appeal process as a “battle of the experts”.

Lawyers can add value by tapping into their respective networks to determine which expert is best, and can do due diligence on their professional track record. It is crucial to ensure that the best experts are engaged since the success of an appeal depends exclusively on the land use planning evidence presented to the tribunal. Lawyers can also develop a strategic method of framing and presenting expert evidence to the tribunal, and can critically cross-examine and challenge expert evidence of the opposing parties.

Please contact Michael Paiva for more information about expert witnesses, or if you require assistance with a possible land use planning appeal.