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Municipal - Local Planning Appeal Tribunal Act, 2017 (LPATA). Humberplex Developments Inc. v. Ontario (AG)
In Humberplex Developments Inc. v. Ontario (AG) (Div Court, 2024) the Divisional Court dismissed a JR, here of "O.Reg. 382/19, which amended O.Reg. 303/19: Transition for Planning Act Appeals" under the Local Planning Appeal Tribunal Act, 2017 (LPATA) on ultra vires grounds. "The amending regulation reimposed the more restrictive procedural regime that previously applied to appeals of municipal planning decisions heard by the Ontario Land Tribunal (the “Tribunal”). Under the amending regulation, the more restrictive regime was reimposed only on appeals solely by third party appellants."
Here the court sets out the complex interplay of planning statutory and regulatory amendments involved:[8] By way of legislative background, the LPATA came into force on April 3, 2018, pursuant to the Building Better Communities and Conserving Watersheds Act, 2017, S.O. 2017, c. 23 (“Bill 139”). The LPATA was Schedule 1 to Bill 139. Prior to that time, appeals of municipal planning decisions, including approvals of official plan amendments, were by way of de novo appeal to the Ontario Municipal Board (the “OMB”). The participants in those appeals had the benefit of fulsome procedural rules similar to those that applied in court proceedings.
[9] Bill 139 amended the Planning Act and replaced the OMB with the LPAT, with revised substantive and procedural rules for municipal planning appeals: see Craft Acquisitions Corp. v. Toronto (City), 2019 ONSC 3636, 146 O.R. (3d) 407 (Div. Ct.), at paras 8-9, 113-120. The effect of the revised regime (the “Bill 139 regime”) was to “significantly change the role of the Tribunal” to entail “a very substantial investigative function, as opposed to the purely quasi-judicial function performed by the OMB”: Craft, at para. 116. The Bill 139 regime included more restrictive procedural rules for participants in the appeal process other than the Tribunal.
[10] Under the Bill 139 regime, the Tribunal had the power to examine a party or other person making a submission to the Tribunal, to require that party or person to produce evidence, and to require a party to produce a witness for examination by the Tribunal: see LPATA, ss. 40-42. Parties or persons other than the Tribunal (including municipalities, Planning Act applicants and third party appellants) could not adduce evidence or call witnesses on their own initiative, and time limits on oral submissions were authorized: LPATA, s. 42(3). This process provided greater authority to the Tribunal to direct evidence and procedure for planning appeals than was the case prior to Bill 139.
[10] Under the Bill 139 regime, the Tribunal had the power to examine a party or other person making a submission to the Tribunal, to require that party or person to produce evidence, and to require a party to produce a witness for examination by the Tribunal: see LPATA, ss. 40-42. Parties or persons other than the Tribunal (including municipalities, Planning Act applicants and third party appellants) could not adduce evidence or call witnesses on their own initiative, and time limits on oral submissions were authorized: LPATA, s. 42(3). This process provided greater authority to the Tribunal to direct evidence and procedure for planning appeals than was the case prior to Bill 139.
[11] On September 3, 2019, after the applicants’ planning appeals had been filed but before they were scheduled for a hearing, the More Homes, More Choice Act, 2019, S.O. 2019, c. 9 (“Bill 108”) came into effect. Schedules 9 and 12 of Bill 108 amended the Planning Act and the LPATA to (among other things) expand the grounds for planning appeals and introduce a new procedural regime for those appeals (the “Bill 108 regime”). As was the case under the Bill 139 regime, official plan amendments and zoning by-law approvals could still be appealed by “third parties”, that is, entities other than the Planning Act applicant (that made the amendment application) and the municipality (that approved the application). However, the LPATA amendments in Bill 108 repealed ss. 38-42 of the LPATA, having the effect of removing the previous prohibition on the ability of parties to certain planning appeals to call witnesses and removing the time limits on oral submissions: see Bill 108, Sched. 9, ss. 4(3), 9.
[12] Bill 108 also amended the LPATA to provide the Attorney General with the authority in s. 43.1 to make regulations providing for transitional rules for planning appeals commenced before, on or after Bill 108’s effective date: LPATA, s. 43.1(1). A regulation made under that provision was permitted, without limitation, to determine which classes of appeals would continue to follow the Bill 139 regime and which classes would proceed under the new Bill 108 regime: LPATA, s. 43.1(2)(a).
[13] Effective September 3, 2019, the Attorney General made O. Reg. 303/19: Transition for Planning Act Appeals, which set out transitional provisions for the conduct of different classes of Planning Act appeals, depending on the time period in which the appeals were filed and whether an appeal on the merits had been scheduled. Under s. 1(1)5 of that regulation, an appeal would be determined pursuant to the new Bill 108 regime if the appeal was commenced before September 3, 2019 and a hearing on the merits was not scheduled by that date. O. Reg. 303/19 addressed the procedure for appeals but did not alter the expanded grounds for appeal in Bill 108.
[14] By letter to applicants’ counsel dated September 18, 2019, the Tribunal advised that the applicants had the opportunity to provide new notices of appeal of the official plan amendments within 20 days, failing which the appeals would proceed under the prior provisions: see O. Reg. 174/16, as amended by O. Reg. 296/19: Transition Matters – General, s. 28. On October 8, 2019, the applicants submitted new notices of appeal to the Tribunal.
[15] After O. Reg. 303/19 came into effect, several municipalities (including Vaughan) and the Toronto and Region Conservation Authority (the “TRCA”) wrote to the Attorney General, expressing concern about the application of the Bill 108 regime to planning appeals filed under Bill 139 and not yet scheduled for a merits hearing. The Attorney General included letters from those bodies in his “Record of Decision” before the court on this judicial review application. The municipalities requested that the Bill 139 regime continue to apply to appeals of municipally approved planning applications where those appeals were filed by third parties under Bill 139. In a letter to the Attorney General, Vaughan’s Interim City Manager explained their concern:O. Reg 303/19 as currently enacted has the unintended and undesired effect of substantially delaying the final approval of development applications by allowing third parties (not the applicant) who appealed the Council approval, to restart the appeal process and not be bound by the Bill 139 regime. Not only does this “restart” substantially lengthen the final approval of development, but it also substantially increases the cost (in both dollars and staff time) to the municipal taxpayers in defending their Council’s decision to approve the development. Further, there is a lack of fairness and deference to [local] decision making inherent in those circumstances where a decision made by Council in the context of one planning regime, Bill 139, is then reviewed on appeal in the context of a new and different planning regime, Bill 108. None of this is in the greater public interest. [16] Effective November 15, 2019, the Attorney General made O. Reg. 382/19, which amended O. Reg. 303/19. Under ss. 1(1.1) and (1.2) of the amended regulation, the Bill 139 regime would continue to apply to certain appeals filed prior to September 3, 2019 that had not been scheduled for a merits hearing by November 15, 2019. The affected appeals were “third party” appeals, that is, appeals solely by persons other than a public body (including a municipality), the applicant, or the Minister in respect of an official plan amendment or a zoning by-law approval. The application of the Bill 139 regime to those appeals was by way of exception to the general transitional rule in s. 1(1)5 of O. Reg. 303/19. Under that exception, the new Bill 108 regime would apply to appeals filed prior to September 3, 2019 that had not been scheduled for a merits hearing by that date.
[17] How did the above legislative and regulatory changes affect the applicants’ appeals of the Vaughan official plan amendments?
[18] To recap:a. At the time the applicants filed their appeals with the Tribunal in July 2019, the narrower Bill 139 regime applied to the applicants’ appeals.
b. With the coming into force of Bill 108 and O. Reg. 303/19 on September 3, 2019, the new Bill 108 regime became applicable to the applicants’ appeals upon their filing amended notices of appeal. The applicant’s appeals were commenced before Bill 108’s effective date but had not yet been set for a merits hearing by that date: O. Reg. 303/19, s. 1(1)5.
c. Effective November 15, 2019, O. Reg. 382/19, by its terms, amended O. Reg. 303/19 to provide that the narrower Bill 139 procedural regime applied to third party appeals that had not been set for a merits hearing by that date. The applicants were third parties, whose appeals had not been set for a merits hearing by that date.
d. The expanded grounds of appeal in Bill 108 continued to apply to the applicants’ appeals, since the applicants had provided amended notice of appeal within the time required by O. Reg. 296/19. [19] Following O. Reg. 382/19’s effective date, the Tribunal requested and received counsel’s submissions as to whether that regulation applied to the applicants’ appeals. In the Tribunal’s initial decision dated December 11, 2019 (the “Initial Decision”), the Tribunal answered yes to that question, with the result the applicants’ appeals proceeded under the Bill 139 regime. At para. 23, the Tribunal stated:The Tribunal finds that the purposive intent of O. Reg. 303 [as amended by O. Reg. 382/19] was that third party appeals, such as those before the Tribunal now, would be governed by the practices and procedures set out in LPATA as it read on September 2, 2019 [the day before Bill 108’s effective date]. [20] In January 2020, the applicants filed their Appeal Record and Case Synopsis with the Tribunal, which included affidavits and other documentary evidence. Later that month, Vaughan filed their Responding Appeal Record, which included affidavits from two expert witnesses.
[21] On September 29, 2020, following a case conference earlier that month, the Tribunal made a procedural order with respect to the conduct of the appeals in accordance with the Bill 139 regime. The Tribunal, at para. 9-10, set down the appeals for a two-day oral hearing by video and advised the parties that the Tribunal “will not require the attendance of, and will not examine, any witnesses at the oral hearing.” At para. 18, the order also provided that the applicants were not permitted to file reply or sur reply material in response to the material in Vaughan’s responding record. The Tribunal explained:
[18] The Appellants have asked the Tribunal for an opportunity to file what they have styled as Reply to the materials that have already been filed in this case. This is a third party appeal of the decision by the City to adopt OPA 47 and OPA 48. As such, the materials in this case begin with those filed municipally by the Applicants and the subsequent review and decision on the applications by the municipal council. The Appellants have already had ample opportunity to file their materials in response to the municipal action and did so. The requisite content of these materials is set out in the Tribunal Rules and included their appeal record and a synopsis of their case. The City then filed the synopsis of its case and a record in answer to that of the Appellants.
[19] Though characterized as Reply, the request by the Appellants to make further submissions is effectively a request to file Sur Reply. Sur Reply is rarely used or permitted. The Tribunal is not persuaded that Sur Reply is appropriate or necessary for a fair hearing in these proceedings.
[22] A two-day oral appeal hearing before the Tribunal proceeded by video in December 2020. The Tribunal reserved its decision.
[23] Effective June 1, 2021 (while the applicants’ appeals were under reserve), the Accelerating Access to Justice Act, 2021, S.O. 2021, c. 4 (the “AAJA”) came into force. That statute included as a schedule the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6 (the “OLTA”). Under the AAJA:a. The LPAT and other property-related tribunals were amalgamated and continued as the Ontario Land Tribunal: see OLTA, s. 2;
b. The LPATA was repealed and replaced by the OLTA: see AAJA, Sched. 6, s. 59(1); and
c. O. Reg. 303/19 was revoked: see AAJA, Sched. 6, s. 59(2). [24] Also effective June 1, 2019, the Attorney General made O. Reg. 350/21: Transition, a new transitional regulation under the OLTA. That regulation effectively replicated the applicable provisions of O. Reg. 303/19, as amended by O. Reg. 382/19. Under O. Reg. 350/21, the Bill 139 regime continues to apply to appeals (like the applicants’ appeals) under s. 17(24) of the Planning Act of municipally approved applications for official plan amendments that were filed solely by third parties under Bill 139 and were not yet scheduled for a hearing on the merits before November 15, 2019: see O. Reg. 350/21, ss. 1(1)5, 1(2), 1(3)1.
[25] By decision dated June 30, 2021 (the “Final Decision”), the Ontario Land Tribunal (as successor to the LPAT) dismissed the applicants’ appeals of the official plan amendments and approved the amendments. At paras 46-81 the court walks through these amended provisions in the course of an actual proceeding, dispelling the argument that they were ultra vires as regulations.
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