Bill 139 introduced significant changes to the practices and procedures that apply to proceedings before the Local Planning Appeal Tribunal (the “Tribunal”, formerly the Ontario Municipal Board).
On 20 September 2018, the Tribunal commenced its first Case Management Conference (“CMC”), required under s.39(1) of the new Local Planning Appeal Tribunal Act, 2017 (“the LPAT Act”).
The CMC was with respect to appeals filed under s.17(24) of the Planning Act regarding the City of Toronto’s Official Plan Amendment No. 395 regarding the Rail Deck Park (the “Rail Deck CMC”). Information on the Rail Deck Park initiative can be found on the City of Toronto’s website.
The Rail Deck CMC was conducted by a panel of three Tribunal Members and addressed in order of sequence the items set out in Rule 26.20 of the Tribunal’s Rules of Practice and Procedure (the “LPAT Rules”).
Adding Parties and Participants to Appeals
This blog post provides observations with respect to a procedural matter that was considered at the Rail Deck CMC: the addition of parties and participants to the appeal. The Tribunal will issue an Order with respect to the Rail Deck CMC, which we expect will provide comments on this matter as well as other matters addressed at the CMC. We will provide additional commentary at that time.
(1) Written Submissions
For persons to be added as parties or participants to an appeal, a written submission must be filed with the Tribunal Registrar at least 30 days before the date of the CMC (s.40(1)-(3) of the LPAT Act, Rule 26.19 of the LPAT Rules.
Subsection 40(1) of the LPAT Act provides that the written submission must address whether the appealed decision (or failure to make a decision, as the case may be):
(a) was inconsistent with a policy statement issued under subsection 3(1) of the Planning Act;
(b) fails to conform with or conflicts with a provincial plan; or
(c) fails to conform with an applicable official plan.
Rule 26.19 of the LPAT Rules provides additional guidance that written submissions “shall explain the nature of their interest in the matter and how their participation will assist the Tribunal in determining the issues in the proceeding”.
For the Rail Deck CMC, two written submissions were received by the Tribunal Registrar.
(2) Tribunal Determination at CMC
Rule 26.20(b) of the Tribunal Rules provides that at the CMC, “the Tribunal shall: (b) determine, from the written submissions provided, whether a person may participate in the appeal as an additional party, or participant, on such terms as the Tribunal may determine.”
Section 40(4) of the LPAT Act provides that “The Tribunal may determine, from among the persons who provide written submissions, whether a person may participate in the appeal as an additional party or otherwise participate in the appeal on such terms as the Tribunal may determine.”
There is an inconsistency between the LPAT Rules and the LPAT Act as to how the Tribunal will determine who can be added as a party or participant to the appeal. The LPAT Rules appear to provide that the Tribunal’s determination is to be based solely on the written submissions. The LPAT Act appears to provide more flexibility to the Tribunal in that it simply directs the Tribunal’s determination to be made regarding a certain class of person, that is, persons who provided written submissions. In this instance, supplementary oral submissions may be permissible. At the Rail Deck Park CMC, the Tribunal panel articulated that the determination of whether to add a party or participant will be made on the basis of the requirement set out s.40(1) of the LPAT Act, specifically the identification of whether the appealed decision is inconsistent or fails to conform with the policy statement or provincial plans.
As an observer at the Rail Deck CMC, it appeared to us that the two written submissions received did not adequately address the requirements of s.40(1) of the LPAT Act. Although the LPAT Rules do not contemplate supplementary submissions to a written submission, the Tribunal panel at the Rail Deck CMC provided an opportunity for the two requestors who made written submissions to provide oral clarification with respect to s.40(1) of the LPAT Act. It appears that, on that basis, the Tribunal determined that the two requestors would be given status to participate in the appeal.
Wood Bull LLP has put together links to Bill 139 resources and background here.
Wood Bull LLP has also launched The Wood Bull Guides, a free on-line resource that focuses on the changes introduced by Bill 139 related to key land use planning legislation in Ontario:
- Planning Act (After Bill 139)
- Local Planning Appeal Tribunal Act, 2017 (including the LPAT Rules of Practice and Procedure)
- Local Planning Appeal Support Centre Act, 2017
As we learn more about the new post-Bill 139 process, we will continue to update our annotations on the Wood Bull Guides.