The Appeal Process - an Overview

On December 12 2017, Bill 139, Building Better Communities and Conserving Watersheds Act, 2017, received Royal Assent. This bill introduces renames the Ontario Municipal Board (OMB) to the Local Planning Appeal Tribunal (LPAT). The majority of development applications in progress before December 12, 2017 will still be heard at the OMB, whereas the majority of applications afterwards will be heard at the new LPAT, noting that there are still forthcoming LPAT regulations that are still required. These regualtions are expected in spring 2018. This page contains information about both appeal bodies.

As a rule of thumb:

  • Applications that the city has received before the end of 2017 (specifically, deemed complete prior to December 12, 2017) will be heard at the Ontario Municipal Board.
  • Applications that the city has received after 2017 (specifically, deemed complete after December 12, 2017) will most likely be heard at the Local Planning Appeal Tribunal.

An application is deemed complete if the city has received all the necessary studies and reports it requires to begin evaluating an application. Application requirements will differ depending on the site. You can read a list of potential documents by clicking here.

The OMB and LPAT are quasi-judicial bodies empowered by the province to adjudicate appeals of planning applications. Applications generally reach them in one of two ways. The first is an appeal of a decision made by City Council. The decision that is appealed can be either an approval or refusal of an application. The second way applications reach the OMB or LPAT is when the city has not made a decision within statutory timeframes outlined in the Planning Act

At the OMB, hearings are de novo (latin for "from the beginning"). This means that the application is presented without consideration of previous decisions, including those by City Council. Indeed, board members are not required to place any weight on a decision made by the city (such as the city's request for refusal of the application). At the LPAT, a test will be applied to determine if the city's decision follows from provincial policy direction and the city's Official Plan. This may mean appeals are refused at the LPAT without a full hearing.

Residents can appear at an OMB or LPAT hearing as either a party or participant. As of this writing, the LPAT has not held any hearings, so the below is speculative but based on conversations with municipal law experts.

Parties have statutory requirements they must meet, which generally involves having written or spoken at a public hearing. Parties are generally represented by counsel and may also hire experts such as a planner or architect to appear in support of their position. Parties may also cross-examine opposing experts. The applicant and city are typically parties at a hearing, but it is not uncommon for other nearby landowners or the local resident association to seek party status. It is expected at the LPAT will rely on written evidence rather than oral evidence, and there will be only limited opportunities to present oral evidence.

Participant status is easy to obtain, but the role is more limited. Normally, participants may only speak to an application and cannot present evidence or cross-examine experts. Participants are typically residents who have individual concerns about an application and are not represented by counsel. As above, it is expected at the LPAT will rely on written evidence rather than oral evidence.

Depending on what is being appealed, OMB hearings can take a significant amount of time, up to to several years (typical of new city policy, which can receive dozens of appeals from landowners). For zoning by-law and official plan amendments, there are typically a number of pre-hearings are held to help narrow issues, with one to three weeks scheduled for a hearing. OMB assisted mediation is increasingly becoming more common.

Once an OMB hearing is over, a board member may issue a decision on the spot, but typically they will take a month or more to consider and write a decision. These decisions are generally final, though the board can technically be asked to review their decision. OMB decisions may only be appealed to the Divisional Court on a matter of law - not the policy itself.

With the LPAT, if the tribunal decides that the city erred in its decision it will first send the decision back to City Council for a second decision. In the event that the applicant or a third party is still not happy with the second decision City Council makes, it then goes back to the LPAT, who may hold further hearings and issue a decision that affirms or rejects the city's second decision.

Going to the OMB is always a risk to the city. No matter how strong the objection is from planning staff and from City Council, a board member may still prefer the evidence or position presented by an applicant. While statistics are difficult to find, for hearings where the city's and applicants' experts present opposing positions the city loses at least 50% of the time. This creates pressure on city staff to achieve modest improvements through a settlement that compromises on policy or residents' position, rather than risk losing everything at a hearing.

The LPAT is expected to produce decisions more favorable to the city, but is expected to still rely heavily on evidence. Without the support of planning staff on an application, it will be risky for the city to argue at the LPAT that a refusal of an application respects provincial policy and the city's Official Plan.

At the OMB, the reliance on the testimony and opinion of experts in their decisions limits resident's input, since individuals and many neighbourhood groups are often unable to afford the hiring of an expert. This puts them at a huge disadvantage. Bill 139 creates Local Planning Support Centres for residents and groups to obtain professional assistance. The regulations for these support centres have not been released, but should assist in narrowing the expertise gap.

Councillor Wong-Tam believes the city and the decisions it makes should not be subject to wide appeal to the Ontario Municipal Board. To that end she has helped lead the charge, getting the support of City Council in explicitly calling on the province to remove the City of Toronto from the jurisdiction of the OMB. The LPAT is a step in the right direction, but she believes the city is sophisticated enough to make decisions without a quasi-judicial body interfering. She remains optimistic that the new tribunal will result in more consultation, more collaboration and more deference to municipal decisions.

The city has already created a local appeal body to hear appeals from the Committee of Adjustment (minor variances and consent applications) rather than having those appeals heard at the OMB. The local appeal body begin operating in 2017, and functions similarly to the OMB. For more information, please click here.



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