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Lawyers eye changes affecting OMB

|Written By Helen Burnett

Following amendments to the Planning Act last year, municipal lawyers are keeping an eye on several changes that affect the Ontario Municipal Board, including plans that the City of Toronto may have to set up its own appeal body, which if created, would ultimately take some proceedings away from the OMB.

‘It looks like this initiative has some traction, so that’s another aspect that the province has given to the City of Toronto and indeed other municipalities,’ says Leo Longo.

Bill 51, which came into effect last year, brought in a number of comprehensive amendments to Ontario’s Planning Act, including when and whether a planning application is considered complete, and also giving municipalities the ability to provide for a local appeal body, rather than having some decisions go to the OMB, says James Ayres, a partner with the municipal, planning, and environmental group at Cassels Brock & Blackwell LLP in Toronto.

Section 115 of the City of Toronto Act, which came into effect on the same day as Bill 51, gave the city the power to establish its own appeal panel, with the restriction that its members may not be council members, city staff or members of the committee of adjustment, according to a memorandum of background information on the subject issued by Coun. Peter Milczyn.

While the city has had the power to set up its own local appeal body from decisions on minor variances or consent to sever for awhile, at a meeting of the planning and growth management committee on June 5, it was requested that a councillor-staff working group consider the staff and financial resources needed to establish an appeal panel, the fee structure, the size and qualifications and criteria for appointment of members to the panel, says Leo Longo, practice group leader of the municipal and land use planning group at Aird & Berlis LLP. It was also recommended that the working group report back to planning and growth committee in the fall.

The motion was approved by the committee.

“It looks like this initiative has some traction, so that’s another aspect that the province has given to the City of Toronto and indeed other municipalities,” says Longo.

If created, such an appeal body would take away appeals from the OMB’s docket that come from the city’s committee of adjustment.

For example, complaints over a variance granted that allows an office building to go an extra three stories, or a neighbour who builds an addition on their home that is too close to the side lot line currently go to the OMB, but if the city set up its own appeal body, the local board set up by the municipality would handle them, says Longo.

The Ministry of Municipal Affairs and Housing says the OMB would continue to hear zoning, official plan, site plan, subdivision, and development permit matters.

“It just shows a level of independence and control that the city feels that it doesn’t have now, but that it could somehow have by creating its own board,” he says, which would still be decided according to the Planning Act.

So far, Toronto is the only municipality that is really talking about setting up a local appeal body, and even that has only been certain politicians, says Ayres. The reasons for this are the increased costs to a municipality to establish an appeal body, and the political reality, he says.

In addition to the municipalities’ ability to set up a local appeal body, Bill 51 also introduced restrictions set out in the Planning Act where there are no longer any appeal rights regarding an urban area boundary expansion unless the expansion was initiated by the municipality as part of its comprehensive review of the official plan policies, says Ayres, which he notes is the one which is causing a lot of planners and lawyers concern.

With regard to completeness of the application, there has only been one decision so far, in a case called Top of the Tree Developments Inc., which one interpretation might be that the board will take a narrow reading of the legislation, says Ayres.

“In that decision, the board said that their reading of the legislation, and I agree with the board’s interpretation of the legislation, is that you have to set out in your official plan policies what it is that determines when an application is complete. You can’t just be dealing with it on an ad hoc basis,” he adds.

Longo says Bill 51 was a fundamental change for the board, but not many decisions have come out that directly address some of the significant changes it introduced.

“It’s somewhat of a holding pattern to see how all of these Bill 51issues are going to actually play out,” he says.

“We don’t know if the new language contained in 51 is having an appreciable difference in how the OMB approaches its task.”

At the moment, there is a three-month delay in getting hearing dates, which he says is great, as the wait to get hearing dates was six to nine months not too long ago.

But, as the bill put an emphasis on landowners and developers filing complete applications, he says there has been a change on how well-documented applications are becoming. Municipalities are now getting around to amending their official plans to stipulate what studies may be required to constitute a complete application, he says.

One potential worrying trend, says Longo, is the recent increase in the number of s. 43 review requests, which allows the board to rehear a matter before deciding it, or review a decision after it’s made.

There have been several court decisions that have come out recently, correcting the board on how the s. 43 process ought to operate, says Longo, and the board has felt the message of these cases, he adds. As a result, the board is currently working on revising the rules to clarify how it is going to handle the review process.

At the moment, things are status quo until everyone sees what policies are going to be put in place by municipalities as well as the new municipal board rules, says Ayres.

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