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Municipal - Planning

. Maynard v. Mississippi Mills (Municipality)

In Maynard v. Mississippi Mills (Municipality) (Ont CA, 2021) the Court of Appeal upheld the dismissal of an application to quash several by-laws as the (then) Local Planning Appeal Tribunal (LPAT) had exclusive jurisdiction over such matters:
[1] The appellant, Steve Maynard, appeals the application judge’s dismissal, pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, of his application to quash five municipal by-laws.

[2] The Local Planning Appeal Tribunal (the “LPAT”) was one of the predecessor tribunals to the new Ontario Land Tribunal, which was established in June 2021: Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sch. 6.

[3] Section 11(1) of the now repealed Local Planning Appeal Tribunal Act, 2017, S.O. 2017, c. 23, Sch. 1, provided that the LPAT had exclusive jurisdiction in all cases and in respect of all matters in which jurisdiction was conferred on it by the Local Planning Appeal Tribunal Act, 2017 or by any other general or special Act. (A similar provision is now found in s. 8(1) of the Ontario Land Tribunal Act, 2021 regarding the consolidated Ontario Land Tribunal.)

[4] The Planning Act, R.S.O. 1990, c. P.13, provides that an appeal lies to the Ontario Land Tribunal (formerly the LPAT) following a council giving written notice of the passing of a by-law: s. 34(19). Section 34(19.0.1) provides that:
If the appellant intends to argue that the by-law is inconsistent with a policy statement issued under subsection 3 (1), fails to conform with or conflicts with a provincial plan or fails to conform with an applicable official plan, the notice of appeal must also explain how the by-law is inconsistent with, fails to conform with or conflicts with the other document.
[5] That is precisely the basis of Mr. Maynard’s challenge to the by-laws. His notice of application alleges that the by-laws are inconsistent with provisions of Provincial Policy Statement, 2014 and fail to conform to the Mississippi Mills Community Official Plan. Given the basis upon which Mr. Maynard challenges the by-laws, we see no error in the application judge’s conclusion that it is plain and obvious that a challenge to the impugned by-laws falls within the exclusive jurisdiction of the LPAT (now the Ontario Land Tribunal) and, consequently, the appellant’s application could not succeed: see Country Pork Ltd. v. Ashfield (Township) (2002), 2002 CanLII 41578 (ON CA), 60 O.R. (3d) 529 (C.A.), at para. 32. We see nothing in the case management decision of the LPAT in Grabe v. Ottawa (City), 2019 CanLII 107083 (ON LPAT) that contains any suggestion to the contrary about the jurisdiction of the LPAT, now the Ontario Land Tribunal: see, in particular, paras. 3, 6 and 13.
. Laforme v. The Corporation of the Town of Bruce Peninsula

In Laforme v. The Corporation of the Town of Bruce Peninsula (Div Ct, 2021) the Divisional Court held that conservation authorities are a 'local board' under the Planning Act:
Planning Act and Provincial Policy Statement

[53] Section 3(1) of the Planning Act provides that the Minister under that statute can issue policy statements on “matters relating to municipal planning that in the opinion of the Minister are of provincial interest”. Section 3(5) of the Planning Act requires that a decision made by various bodies, including a “local board”, “in respect of any authority that affects a planning matter” is to be consistent with any provincial policy statement.

[54] Recent case law from the Court of Appeal and this court confirms that a conservation authority is a “local board” for the purposes of section 3(5) of the Planning Act and that it is required to act in a manner consistent with provincial policy statements: Gilmor v. Nottawasaga Valley Conservation Authority, 2017 ONCA 414, at para. 51; and 435454 Ontario Inc. v. Halton Regional Conservation Authority, 2018 ONSC 1633 (Div. Ct.), at para. 5.
. Charlesfort Development Limited v. Ottawa (City)

In Charlesfort Development Limited v. Ottawa (City) (Ont CA, 2021) the Court of Appeal summarizes the purpose of zoning law, and that pure economic loss is not a foreseeable protected interest::
[53] First, “[z]oning is about regulating land use in the public interest and is the expression of public policy in land use areas”: Ian Rogers, Alison Butler and Greg Levine, Canadian Law of Planning and Zoning, 2nd ed. (Toronto: Thomson Reuters Canada Limited, 2021), at s. 4.2. It enables local governments, like municipalities, to control the use of land by depriving property owners of certain uses of property for the public good. The public interest purpose of zoning does not suggest that the City was guaranteeing or had Charlesfort’s economic interests in mind when it undertook to process the rezoning application.

[54] Second, the statutory scheme and other policy instruments reflect the public interest focus of zoning decisions. The Planning Act, which authorizes municipalities to pass zoning by-laws, requires that planning officials, in exercising authority that affects a planning matter, “have regard to” policy statements issued under s. 3(1) of the Planning Act. The 1997 Provincial Policy Statement, which governed at the time the rezoning took place, identified a number of key provincial interests related to land use planning and development. These included wise use and protection of Ontario’s resources, protecting the long-term health and safety of Ontario’s population, and the financial and economic well-being of Ontario and municipalities. The City also had several official plans it considered to be relevant, and these official plans included objectives and policies such as encouraging denser residential development in urban areas, compatibility with existing neighbourhoods, and promoting growth that facilitated the use of public transit.

[55] It is clear from the Planning Act, the Provincial Policy Statement, and the City’s official plans that land use planning and restrictive zoning target the protection of the public and good management of land resources. These are public goals. The trial judge identified several issues the City should have been aware of during the rezoning process based on these instruments, including risks to public health, safety, and critical infrastructure, and adequate parking. These again are public interests, concerned with public health, infrastructure that serves the public, and ensuring that local traffic flow is not impeded.

[56] This court was not referred to anything in any of the statutes or other instruments relating to planning that creates a duty to protect developers from pure economic loss. Nothing in the legislative framework suggests that the legislature intended that the exercise of zoning powers alone should also give rise to a private law duty to developers. The observation in Imperial Tobacco, at para. 44, that it may be difficult to find that a statue creates sufficient proximity to give rise to a duty of care, applies in this case:
However, more often, statutes are aimed at public goods, like regulating an industry, or removing children from harmful environments. In such cases, it may be difficult to infer that the legislature intended to create private law tort duties to claimants. [Citations omitted.]
. Masters v. Claremont Development Corporation

In Masters v. Claremont Development Corporation (Div Ct, 2021) the Divisional Court considered an appeal from an LPAT (Local Planning Appeal Tribunal) review decision. The case involved a rezoning/subdivision application that was allowed to persist for over 30 years (started in 1990), which in my opinion was an absurdly long time. Moreover, the appeal result was that the application was allowed to continue.

The LPAT is the successor tribunal to the OMB (Ontario Municipal Board), and thus in an area that I have not practiced a lot, but the result to me is incredible given that mere days of lateness in already-short time limits in essential areas of law (social assistance, human rights, employment and many, many others) are commonly fatal to proceedings. As well, many of these other areas of law empower the tribunal itself to dismissal a proceeding for lateness, which is obviously not the case here. Planning law appears to be a different legal world from what I have experienced before.

. Paletta v. Burlington et al

In Paletta v. Burlington et al (Div Ct, 2021) the Divisional Court considered the standard for leave to appeal from a decision of the LPAT (Local Planning Appeal Tribunal Act):
THE TEST FOR LEAVE TO APPEAL

[45] Under s. 37(1) of the LPATA, “an appeal from the LPAT may be made to the Divisional Court with leave solely on a question of law.” The Divisional Court has no jurisdiction to consider questions of fact, questions of mixed fact and law, or questions regarding the exercise of the LPAT’s discretion: CAMPP Windsor Essex Residents Association v. Windsor (City), 2020 ONSC 4612 (CanLII) (“CAMPP”) at para. 3. The Divisional Court, at para. 30, explained that:
It is well understood that planning matters involve policy decisions as much or more than legal ones. It is not the role of the court to balance competing policies, weigh subjective aesthetics or to make the political compromises that underlie planning decisions. The Legislature has assigned to the LPAT alone, the task of balancing factual and policy considerations underlying planning decisions. The role of the court is limited to ensuring that when the LPAT exercises its exclusive decision-making authority, it applies the proper legal principles. (emphasis added)
[46] As articulated in CAMPP, at para. 31, the test for leave requires me to be satisfied that:
(a) the proposed ground of appeal raises one or more questions of law;

(b) there is reason to doubt the correctness of the Tribunal’s decision with respect to the question(s) of law raised; and

(c) the question of law is of sufficient ‘general or public importance’ to merit the attention of the Divisional Court.
In applying the criteria, I must consider the totality of the LPAT’s decision.

[47] At para. 32 of CAMPP, Verbeem J. provided further guidance on criterion (a), stating that: “Applying the law, as interpreted, to the facts, as found, is quintessentially a question of mixed fact and law. Absent an extricable legal error in the interpretation or application of the law, the result of such an exercise is not fodder for an appeal brought pursuant to s. 37 of the LAPTA.” The court cautioned at para. 33 that: “in determining whether a proposed ground of appeal raises a question of law, the factual findings of the LPAT are entitled to a very high degree of deference.”

[48] In contrast, when considering criterion (b), Verbeem J. noted that a “reason to doubt” the correctness of the LPAT’s decision “does not require a finding that the Tribunal’s decision is ‘wrong’ or ‘unreasonable,’ or even that it is probably so. It is sufficient that the moving party demonstrate that the legal issues that are engaged, are open to ‘very serious debate.’

[49] Finally, in relation to criterion (c), at para. 38, the Divisional Court in CAMPP stated that a question of law will only be of “sufficient general or public importance” if the identified legal issue, in and of itself, is of such importance as to warrant the attention of the Divisional Court. For example, I might consider “the frequency with which the particular legal issue arises and whether the issue has an effect for most municipalities in Ontario.” I do not need to consider, however, the importance of the legal issue to the parties themselves or even to the eventual use of the land in question.
. IN8 (The Capitol) Developments Inc. v Building Kingston’s Future

In IN8 (The Capitol) Developments Inc. v Building Kingston’s Future (Div Ct, 2020) the Divisional Court sets out basics of Ontario's land use planning regime [SS: the Local Planning Appeal Tribunal (LPAT) is the successor to the OMB]:
[10] The Tribunal held a hearing to determine whether the Amending By-law met the test under section 34 of the Planning Act, which requires that a zoning by-law amendment conform to a municipal official plan.

[11] The Planning Act forms the statutory basis for Ontario’s land use planning regime. The Minister of Municipal Affairs, alone or with other Ministers, may issue provincial policy statements under s. 3 of the Planning Act which provide policy direction on matters related to land use planning and development. Provincial direction through the Planning Act and Provincial policy statements sit at the top tier of the planning hierarchy.

[12] Official plans passed by municipal councils, or approved by the Tribunal, are the second tier of the planning hierarchy. Under section 16(1) of the Planning Act, an Official Plan is to contain “goals, objectives and policies established primarily to manage and direct physical change and the effects on the social, economic, built and natural environment”, among other policies. The goal of an official plan is to set out a framework of “goals, objectives and policies” to shape planning decisions and govern a municipality’s land use planning generally: Toronto (City) v. Goldlist Properties Inc., 2003 CanLII 50084 (ON CA) at para. 49.

[13] Zoning by-laws are the third tier of the planning hierarchy. Zoning by-laws may be passed by a municipal council to restrict the use of land and the erecting, locating or using of buildings in defined areas within the municipality. Zoning by-laws under s. 34 of the Planning Act may also regulate the construction, spacing, character and use of building or structures. Under s. 24(1) of the Planning Act, where an official plan is in effect, zoning by-laws must conform to the official plan. Once a zoning by-law comes into force, it is deemed to conform to the official plan (s. 24(4)). As stated by this Court in Aon Inc. v. Peterborough (City), [1999] O.J. No. 1225, 1 M.P.L.R. (3d) 225 (Div. Ct.) at para. 18, it is a zoning by-law which converts the official plan into a body of law regulating the use of land.

....

[45] The importance of the Tribunal’s [SS: the LPAT] public interest mandate on a zoning by-law amendment appeal was described by this Court in Ottawa (City) v. Minto Communities Inc., 2009 CanLII 65802 (ON SCDC) with reference to the Ontario Municipal Board, the predecessor tribunal:
Furthermore, it is important to keep in mind that the appeal process before the Ontario Municipal Board is not merely a lis between parties, but a process requiring the OMB to exercise its public interest mandate. The decision to be made by the Board transcends the interests of the immediate parties because it is charged with responsibility to determine whether a land planning proposal is in the public interest. At first instance, that public interest is determined by Municipal Council, but on an appeal the Board has the obligation to exercise its independent judgment on the planning merits of the application and to assess the proposal and the positions of the parties from the perspective of applicable legislation, regulations, provincial plans, the provincial policy statement, official plans and bylaws and even the potential impact on neighbouring municipalities. In doing so, it brings its own expertise to bear.
. 2072231 Ontario Limited v. The Corporation of the City of London

In 2072231 Ontario Limited v. The Corporation of the City of London (Div Ct, 2020) the Divisional Court reviewed the interpretive approach to municipal official plans:
[26] Official plans are not statutes. When considering whether a zoning by-law conforms with an official plan, the Tribunal should give the official plan a broad liberal interpretation with a view to furthering its policy objectives; Bele Himmell Investments Ltd. v. Mississauga (City), 1982 CarswellOnt 1946 (ON DC). The Tribunal cited this decision in its analysis of conformity of the by-law amendment with the Official Plan. The Tribunal considered the applicable policy objectives, including s. 2 of the Planning Act and the Provincial Policy Statement. This is the recognized approach at law, and I can find no reason to doubt the correctness of its finding that the amendment conforms with the Official Plan.

[27] The court has consistently endorsed this approach and supports the distinction to be made between official plans and zoning by-laws. An official plan rises above the level of detailed regulation and establishes the broad principles that are to govern the municipality’s land use planning generally: Goldlist Properties Inc. v. Toronto (City), 2003 CanLII 50084 (ON CA), [2003] O.J. No. 3931 (CA) at para. 49. Official plans should be flexible documents setting out general policy and are not intended to be prescriptive in their application: Ottawa (City) v. 267 O’Connor Ltd., 2016 ONSC 565 (Div. Ct.) at paras. 20 & 24.


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