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

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...