Introduction and Overview of Major Changes

a) Overview of Bill 139

On May 30, 2017 the Minister of Municipal Affairs, Bill Mauro and the Attorney General, Yasir Naqvi, introduced Bill 139, the Building Better Communities and Conserving Watersheds Act, 2017 (the "Act"). Bill 139 will result in fundamental changes to the province's land use planning appeals system and, in particular, the Planning Act and the Ontario Municipal Board. Bill 139 consists of 5 Schedules as follows:

Schedule 1Local Planning and Appeal Tribunal Act, 2017 (the "LPAT Act")

Schedule 2 – Local Planning Appeal Support Centre Act, 2017

Schedule 3 - Amendments to the Planning Act, the City of Toronto Act, 2006 and

the Development Act, 1994

Schedule 4 – Amendments to the Conservation Authorities Act

Schedule 5 – Amendments to Various Acts Consequential to the Enactments of the Local Planning Appeal Tribunal Act 2017

Bill 139 received Royal Assent on December 12, 2017, thereby bringing the Act into force. Despite the enactment, the changes will not be implemented immediately as the Schedules, which contain the legislative amendments to the Planning Act, will only come into force on a date to be named by proclamation of the Lieutenant Governor. While no such date has been decided upon at this time, the Ministry of Municipal Affairs has indicated that proclamation will likely occur in the spring of 2018, which is when the province intends to have the rules and regulations applicable to the new Local Planning Appeals Tribunal (the "Tribunal") finalized.

Bill 139 creates sweeping and fundamental changes that significantly restrict the land use planning matters that can be appealed, the standard for review, and how hearings will be conducted. The following is a very brief overview of the major changes to the land use planning appeals system under Bill 139:

  • The Tribunal will replace the Ontario Municipal Board [LPAT Act s. 2(1)].
  • The numerous amendments to the Planning Act and the introduction of the LPAT Act eliminate "de novo" hearings for the majority of land use planning appeals so the Tribunal would function as an appeal body only.
  • An appeal of a decision to adopt or approve an official plan or an official plan amendment, can only be made if the decision is inconsistent with a provincial policy statement, fails to conform with or conflicts with a provincial plan, or fails to conform with the upper-tier municipality's official plan [Planning Act s. 17(24.0.1), 17(36.0.1)].
  • An appeal of a decision to pass a zoning by-law can only be made if the decision is inconsistent with a policy statement, fails to conform with or conflicts with a provincial plan, or fails to conform with an applicable official plan [Planning Act s.34(19.0.1)].
  • An appeal of a council refusal or a non-decision on an official plan amendment can only be made if the existing part or parts are inconsistent with a provincial policy, fail to conform or conflict with a provincial plan, or fail to conform with the upper-tier municipality's official plan and the requested amendment is consistent with provincial policy statements, conforms with or does not conflict with provincial plans and conforms with the upper-tier municipality's official plan [Planning Act s. 22(7.0.0.1)].
  • An appeal of a council refusal or non-decision on a zoning by-law amendment can only be made if the existing part or parts of the by-law affected by the subject amendment are inconsistent with a provincial policy statement, fail to conform with or conflict with a provincial plan or fail to conform with an applicable official plan and the requested amendment is consistent with provincial policy statements, conforms with or does not conflict with provincial plans and conforms with applicable official plans. [Planning Act s. 34 (11.0.0.0.2)]
  • The Tribunal, after an appeal hearing with respect to official plan and/or zoning amendments, will provide notice when it overturns a municipal council's decision and must return the matter back to the municipality. The municipality is allowed 90 days to make a new decision. The Tribunal would retain the authority to make a final decision on the matter only after a second appeal, and only if the municipality's subsequent decision still fails to be consistent with provincial policies or fails to conform to provincial plans and municipal official plans.
  • The Tribunal is required to conduct mandatory case management for the majority of cases in order to narrow the issues and encourage case settlement [LPAT s. 33(1)].
  • The Tribunal will create new rules regarding the conduct of hearings that limit evidence to written materials, if the Tribunal holds an oral hearing any oral submissions cannot exceed the time limits provided and no party or person may adduce evidence or call or examine witnesses [LPAT Act s. 42].
  • Bill 139 includes measures to exempt a broader range of major municipal land use planning decisions from appeal. For example, no appeals will be allowed for provincially approved official plans and official plan updates and no appeals are allowed of Minister Orders.
  • Bill 139 restricts applications to amend new secondary plans for 2 years [Planning Act s.22(2.1.1)].
  • The Tribunal, after an appeal hearing with respect to official plan and/or zoning amendments, will provide notice when it overturns a municipal council's decision and must return the matter back to the municipality. The municipality is allowed 90 days to make a new decision. The Tribunal would retain the authority to make a final decision on the matter only after a second appeal, and only if the municipality's subsequent decision still fails to be consistent with provincial policies or fails to conform to provincial plans and municipal official plans.
  • The Tribunal is required to conduct mandatory case management for the majority of cases in order to narrow the issues and encourage case settlement [LPAT s. 33(1)].
  • The Tribunal will create new rules regarding the conduct of hearings that limit evidence to written materials, if the Tribunal holds an oral hearing any oral submissions cannot exceed the time limits provided and no party or person may adduce evidence or call or examine witnesses [LPAT Act s. 42].
  • Bill 139 includes measures to exempt a broader range of major municipal land use planning decisions from appeal. For example, no appeals will be allowed for provincially approved official plans and official plan updates and no appeals are allowed of Minister Orders.
  • Bill 139 restricts applications to amend new secondary plans for 2 years [Planning Act s.22(2.1.1)].

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The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2018