Consultation on role of Ontario Municipal Board in Ontario's land use planning system

Effect(s) of consultation on this decision

The government’s review of the scope and effectiveness of the Ontario Municipal Board (OMB) was a joint initiative undertaken by the Ministry of Municipal Affairs and the Ministry of the Attorney General.

In total, over 1,100 written submissions were received as part of the OMB Review in response to possible changes outlined in the government’s Public Consultation Document. Of these, 365 submissions specifically cited the EBR Registry Number for this posting. In addition, twelve regional town hall meetings were held in communities across Ontario. Over 700 participants took part in the town hall meetings.

Submissions were made by members of the public, Indigenous communities and organizations, municipalities and a range of interested stakeholders, including community groups, development and professional sectors, and environment and resource sectors. All comments received were shared with both the Ministry of Municipal Affairs and the Ministry of the Attorney General and were carefully considered and analyzed in the context of possible reforms.

The proposed changes outlined in Bill 139 – the proposed Building Better Communities and Conserving Watersheds Act, 2017 are responsive to the input received through the consultation process, including the comments received through the EBR Registry posting. This includes proposed changes to the Planning Act which are the responsibility of the Ministry of Municipal Affairs, as well as proposed changes that would replace the OMB with the new Local Planning Appeal Tribunal, make processes at the Tribunal more efficient, and establish the new Local Planning Appeal Support Centre which are being led by the Ministry of the Attorney General.

Many of the possible changes and ideas outlined in the Public Consultation Document have been further refined based on comments received and are included as proposed changes in the Bill.

Based on the comments received, some of the possible changes/ideas are no longer being considered as part the proposed reforms identified in Bill 139.

Summary of comments

There were mixed views on the possible changes outlined in the Public Consultation Document. Most submissions expressed support for changes that would make Board processes more efficient, level the playing field for citizens, and provide enhanced opportunities for alternative dispute resolution, such as mediation. Possible changes that would restrict or limit appeals and move away from de novo hearings were the issues that received the greatest amount of feedback.

The following is a high-level summary of common themes from the feedback received as part of the OMB Review, including the comments in response to the EBR Registry posting.

Sheltering major planning decisions from appeal

Many submissions expressed support for changes to the Planning Act that would remove the ability to appeal provincial decisions on municipal official plans and major official plan updates. However, some felt that appeal rights should be retained in certain circumstances. For example, some municipalities felt they should retain the right to appeal modifications the province may make when approving an official plan or major official plan update. We also heard from other groups that there should continue to be an ability to appeal certain matters where their specific interests are impacted (e.g., wetland protection, environmental policies, parkland redevelopment) and/or when they disagree with a decision made by a local council.

With respect to limiting appeals to support transit, a prevailing sentiment expressed in many submissions is that a one size fits all approach will not work. Commonly-cited examples were that not all areas are appropriate for intensification, not all transit stations are the same and not all transit-supportive development is desirable. Various implementation questions were also raised, including requests for more clarity on which provincial interests would qualify to be sheltered from appeal and what is meant by transit-supportive.

While the specific proposed changes for Ministers Zoning Orders did not generate substantial feedback, some submissions expressed concerns on the grounds that the ability to appeal government decisions is important, while others felt the proposed changes were appropriate.

Strong local decision-making

Overall, many submissions expressed broad-based support for possible land use planning changes that would support local decision-making, such as the proposed changes to:

• provide more stability for new secondary plans
• remove the ability to appeal a municipal interim control by-law, and
• expand the authority of local appeal bodies to include site plan appeals.

In addition, there was broad-based support for limiting the Board’s authority to matters that were part of the council decision and for requiring the OMB to send significant new information that arises in a hearing back to the municipal council for re-evaluation of the original decision. However, some groups expressed concerns that sending information back to municipalities could result in additional costs and delays in the process.

Changing the standard of review for the OMB

The standard of how the OMB hears/reviews appeals was a key issue for many groups. A full range of views were expressed on either maintaining the current de novo hearing standard as set out in the Planning Act, or eliminating it altogether – with no overall consensus among groups on the best approach.

Many submissions supported the proposal to move away from de novo hearings. These submissions expressed a broad range of concerns with the current approach, viewing it as undermining decisions made by locally-elected councils.

There was substantial feedback with regard to the ideas identified in the Public Consultation Document to base hearings on a standard of reasonableness or consistency/conformity. Many groups viewed these alternative standards as potentially providing greater deference to municipal decisions; however, there were mixed views on which standard should be implemented:

• Some submissions expressed support for the “consistency/conformity” standard, commenting that this standard would provide more support for provincial and local policies.
• Others expressed support for the reasonableness standard and felt it would be a positive change that would focus on the validity of a council or approval authority decision.
• Others felt that a blended approach should be taken using both proposed standards of review.

But many groups also expressed concerns, particularly with the proposed standard of reasonableness. These groups felt that reasonableness is not easily defined and may not work well in the context of the planning system where there is room for interpretation.

Other comments expressed support for maintaining the OMB’s current approach to hearings. These submissions felt that the current approach provides for an appropriate level of review. Others commented that a change in this area could make participation in the process more difficult, and some felt that changes to how matters are dealt with could potentially make it more difficult to bring development to market.

Some commented that OMB hearings are already not true de novo hearings because the Board is required to have regard to the municipal decision. As such, they do not see changes in this area as being necessary – particularly if other changes were made to make the overall process at the Board more efficient and effective.

Leveling the playing field for citizens

The government heard widespread support for making improvements to the OMB’s website, improving the searchability of OMB decisions, and expanding the role of the Citizen Liaison Office. Several submissions called for improving access to information and resources to better support citizen participation.

While providing additional resources to citizens was often supported, there were mixed views expressed on providing funding to enable citizens to retain planning experts and lawyers. Some submissions also expressed concerns that this type of financial support may encourage NIMBY disputes. Many groups indicated that there should be criteria to determine if funding should be provided (e.g., application process to the Province).

Faster, fairer and more affordable planning appeals

The government heard widespread support for changes to make the procedures at the OMB less formal and less adversarial, and for changes to improve the timeliness of procedures at the OMB, such as establishing clearer rules for scoping and defining issues lists.

While there was support for placing time limits on hearings, a number of submissions expressed concern about the potential impact on citizen engagement.

There were mixed views on whether more matters should be adjudicated through a written hearing process. Some submissions viewed this as beneficial for some matters, such as minor variances, while others expressed the view that written hearings could make it more challenging for parties to participate.

Resolving disputes

Many submissions felt that more could be done to resolve disputes before proceeding to a full OMB hearing. There was strong support from many groups and individuals for changes being considered to promote mediation, but mixed views on whether mediation should be made mandatory. Many submissions noted that successful mediation depends on the willingness of the parties to negotiate. Some submissions identified that applications should proceed through a mandatory pre-screening to determine if an application would benefit from mediation.

Many submissions identified that the quality of mediation is important and additional trained mediators are needed at the Board. Some suggested that the OMB could consider hiring external firms to conduct mediation and that a well-defined issues list could scope issues that would benefit from mediation, which could then help speed up the hearing process for the remaining issues.

Application of new planning rules

Mixed views were expressed on the two possible changes that were being considered regarding the application of new planning rules.

Some submissions supported making decisions based on the most up-to-date planning documents. Those submissions that supported this change often felt that this approach would better protect the public interest and be more reflective of community values and interests.

However, other submissions expressed concerns with the possible changes. These submissions viewed the current approach as necessary to provide fairness in the planning system and felt that a change that would apply policies to matters in process would create uncertainty and negatively affect investments.

Other information

For more information and background on Bill 139 – the proposed Building Better Communities and Conserving Watersheds Act, 2017, please visit this link.

For a copy of Bill 139 and to monitor the status of the Bill through the legislative process, please visit the Legislative Assembly of Ontario website.

The proposed Planning Act changes outlined in Schedule 3 of Bill 139 are posted on the Environmental Bill of Rights Registry. Please see EBR Registry Posting Number 013-0590 for information on the proposed Planning Act changes.

Bill 139 also proposes amendments to the Conservation Authorities Act which the Ministry of Natural Resources and Forestry is leading. For information regarding those proposed changes, please visit EBR Registry Posting Number 013-0561.