Wood Bull Blog

Post Bill 139 - Appeals - When a Municipality Fails to Provide the Required Enhanced Municipal Record

Sep 28, 2018

Bill 139 introduced significant changes to the practices and procedures that apply to proceedings before the Local Planning Appeal Tribunal (the “Tribunal”).

This blog post shares some of our observations regarding the new Enhanced Municipal Record, which is required to be prepared for certain Planning Act appeals* that have been filed with a municipality.  Following the filing of a Notice of Appeal, the Enhanced Municipal Record starts the process at the Tribunal.   The diagram below provides an illustration of the process, using as an example an appeal with respect to the passing a zoning by-law, filed under s.34(19) of the Planning Act.

Diagram: LPAT Process for s.34 Appeal [click on image for a larger view]

ISSUE

We are aware of a number of situations where the municipality has not provided the appellant with a copy of the Enhanced Municipal Record, as required by Rule 26.04 of the Tribunal’s Rules of Practice and Procedure (the “Tribunal Rules”).  This becomes problematic for appellants when they receive notice that their appeals are valid (Step 6 in the above flow chart) and are given directions from the Tribunal to file their case synopsis and appeal record within the required 20 days (Step 8 in the above flow chart).   As set out in Rules 26.12 and 26.13 of the Tribunal Rules, the contents of the appellant’s appeal record and case synopsis are required to reference the Enhanced Municipal Record.  In the absence of an Enhanced Municipal Record, the appellant cannot properly prepare a case synopsis and appeal record.

REMEDY

The Enhanced Municipal Record is required to be filed in accordance with the Planning Act (s.17(29),(42),s.22(9), s.34(23), or s.51(35)) containing information prescribed in the regulations (s.6, 9, 13 of O. Reg. 543/06; s.8 of O. Reg. 544/06; or s.7 of O. Reg. 545/06) (the “Regulations”) and in accordance with Rules 5.04 and 26.04 set out in the Tribunal Rules. 

Where a municipality does not comply with all the requirements of the Planning Act, the Regulations and the Tribunal Rules, the appellant can request direction from the Tribunal.  Subsection 12(1) of the Local Planning Appeal Tribunal Act, 2017 provides the Tribunal with authority to make orders that are necessary or incidental to the exercise of the powers conferred upon the Tribunal under any Act.

Three recent Tribunal Orders, provided under the authority of s.12(1), have directed the City of Toronto to file Enhanced Municipal Records by a specific date, and extend the 20-day deadline for filing case synopses and appeal records:

In all three of the above scenarios, the City of Toronto had not provided the required Enhanced Municipal Records to the appellants, as required by Rule 26.04.

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Footnote*: The following types of appeals are subject to the process described in this Blog post:

  • official plans and amendments (s.17(24), (36), (40) and 22(7) of the Planning Act);
  • zoning by-laws and amendments (s.34 (11) and (19) of the Planning Act); and
  • non-decisions on plans of subdivision (s.51(34) of the Planning Act).

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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.

Author(s): Dennis Wood / Yvonne Choi

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