Introduction

The Province’s Growth Plan for the Greater Golden Horseshoe was released on June 16, 2006. The Growth Plan was the much needed companion to the Greenbelt Plan, the draft of which has been in circulation for over two years earlier and had been in effect since December 2004. The Province having directed where growth was not to occur in the Greenbelt Plan was clearly required to balance that by directing where it could be accommodated in the Growth Plan.

Municipalities are required to conform to Provincial Plans including the Growth Plan1. In response to this conformity exercise, municipalities directed the preparation of studies including pivotal land budget plans, consulted with public and other stakeholders, adopted official plans and, in many cases, ended up defending the plan against many appellants representing a broad variety of interests before the Ontario Municipal Board.

The Growth Plan set a statutory schedule of three years to achieve conformity. At the time, we all knew this would be a challenge. However, it has become so much of a challenge, the authors are tempted to ask the question which in our view denotes events of immense significance: “Do you know where you were on June 16, 2006 when the Growth Plan came into effect”? Likely, you were in a municipality whose official plan required a significant overhaul. This overhaul was much needed, not only to respond to the Growth Plan, but also to the Provincial Policy Statement (PPS) 2005 and, in many cases, the ongoing fallout from the Greenbelt Plan.

As a result, since 2009, a wave of Growth Plan hearings (GPHs) has been brought before the Board. A large number of municipalities are currently in the midst of the hearing process, including the Regions of York, Halton and Durham, to name a few.2 Others, such as the County of Simcoe, are in the pre-hearing stage and will be heading toward the first phase of a hearing later this summer.3

GPHs are challenged by the process that is inherent to this type of hearing. Unlike a typical Board hearing that deals with site specific matters, GPHs involve 40 to 80 parties representing a broad spectrum of competing interests, including local and Regional municipalities, public sector agencies, industry groups, private developers and members of the general public4. Most of these parties are sophisticated and are represented by counsel. Furthermore, since many policies under appeal must be read in the context of other policies, parties tend to take a monitoring role even long after their issues have been settled.

It is not surprising then that the process from Council adoption of an official plan to final approval of that plan by the Board involves a multi-year process. Costs associated with going through the Growth Plan conformity exercise are significant for all parties and not to mention, for the Board, given its limited resources.

Why did the Density of Appeals Develop?

Before we head into the issues and lessons learned from the GPH process, a worthwhile exercise is to ask why the number of appeals was so high. Clearly, the response of the development industry to a comprehensive review of the official plan was to bring forward perhaps an unprecedented density of appeals. Looking back, the development industry may have identified a number of reasons for raising such appeals, many of which were flawed and not carried forward in practice. To illustrate, some of these reasons and the problems associated with each are provided below.

  1. Reason: There is always a strategic opportunity to advance a site specific application by attempting to boot-strap it to a comprehensive official plan process. The appellant then tries use the desire of the municipality to approve the plan as leverage by seeking an accelerated settlement of its own site specific issues.
    Problem: Once the boot-strapping strategy was copycatted by other appellants, the Growth Plan appeal process became a decelerator, rather than accelerator for planning approvals. Rather than boot-strapping, applicants were often better off disentangling themselves from the Growth Plan process.
  2. Reason: Following the aftermath of the Greenbelt Plan, there was an atmosphere of “get approved now or get swallowed up in the next expansion of the Greenbelt”. Developers were anxious that this would be the last opportunity for significant urban expansion.
    Problem: The “now or never” sentiment was overstated. This anxiety was certainly put to rest when the Province announced its intention to update and increase population and employment targets for the next five and ten year periods after 2031. In this respect, many municipalities have already begun or are poised to begin their next municipal comprehensive review process to accommodate the increased population and employment numbers.
  3. Reason: Successful reliance in the past on the Clergy principle triggered an instinct to appeal transition policies in an attempt to avoid the impact of the new policies on applications in process.
    Problem: The requirement for planning decisions to be consistent with the PPS and conform to Provincial Plans reaches down into the site specific planning process. It is not necessary to for the new plan to carry forward the provincial directions for these policies to bite. To some extent, even if an appellant succeeds in securing a Clergy position, it is trading the certainty of a clear process for implementing provincial policies in the new plan for some uncertainty in using the older plan, which will nonetheless apply the latest Provincial Plans and PPS in effect.
  4. Reason: There was a strong real estate market and significant resources available for developers to fund appeals.
    Problem: The multi-year process to settle Growth Plan appeals could not have been anticipated by the development industry. Although some developers are still actively involved in the GPH process, others have abandoned their appeal and/or have settled, presumably to avoid the costs of a hearing.

A New Path Forward

This paper will identify a few practical lessons the authors learned from their experience dealing with GPHs. These lessons have been translated into tools which, while based largely on anecdotal evidence, have been applied successfully in other municipalities, and in some cases, have been engrained in recent publications by the Board. The goal of this paper is to provide a list of available tools that may assist municipalities and other stakeholders to reduce the cost of GPHs and lead to an earlier approval of an official plan.

To this end, Part 1 of this paper identifies a number of hearing management tools that have been used successfully in GPHs. Part 2 introduces the principle of deference as a new hearing management tool to balance the interests of an appellant with those of a municipality and the public, particularly in cases where a municipality’s vision of how and where to grow is at stake.

Part 1: Hearing Management Tools

A) The Obligation for an Appellant to Scope

An appellant is not expressly required to scope an appeal under the Board’s Rules of Practice and Procedure. The Planning Act also does not provide any specific direction on this matter.

Although the requirements to file a notice of appeal with the Board is set under Section 17(36) of the Act,5 an appellant is only required to do three things: (1) identify the parts of the plan to which their appeal applies, (2) provide reasons, and (3) pay the $125.00 filing fee. The first step is also largely redundant since the Act permits a notice of appeal to apply to “all of the plan”:

Appeal to O.M.B.

(36) Any of the following may, not later than 20 days after the day that the giving of notice under subsection (35) is completed, appeal all or part of the decision of the approval authority to the Municipal Board by filing a notice of appeal with the approval authority:

  1. A person or public body who, before the plan was adopted, made oral submissions at a public meeting or written submissions to the council.
  2. The Minister.
  3. In the case of a request to amend the plan, the person or public body that made the request.

Contents of notice

(37) The notice of appeal under subsection (36) must,

  1. set out the specific part or parts of the plan to which the notice of appeal applies unless the notice applies to all of the plan;
  2. set out the reasons for the appeal; and
  3. be accompanied by the fee prescribed under the Ontario Municipal Board Act.

Given the short time period between when a plan is adopted and when an appeal must be filed (and perhaps out of an abundance of caution) many appellants appeal the plan in its entirety. It is not until after many pre-hearing conference attendances, exchange of issues lists, mediation, and perhaps even exchange of witness statements before a party’s issues are narrowed to a manageable form.

In practice, this means that the process of dealing with appeals in a GPH is daunting. Not only is it common for there to be over 40 appellants to an official plan, the majority of appellants have appealed the entire plan and provide little if any direction as to their particular matter of concern. Municipalities are then tasked with sifting through and discussing issues with each appellant in a painstakingly lengthy and expensive process.

It was only recently that the Board accepted that an appellant has an obligation to scope. In the York Region GPH, the Region brought a motion to scope and a motion for partial approval of the official plan after almost six weeks of mediation.6 After considering the motions before him and the objections made by the appellants, Associate Chair Wilson Lee stated:

The sheer size and magnitude of this hearing is a class of its own. Scoping is a necessary process. The Board will be remiss if it does not see to it that it would be at play in this pre-hearing process. Once the specific policies are identified as of primary concerns by a party, the same party has an obligation to relinquish areas of remote and insignificant concerns for approvals. Mechanisms must be designed so that the proposed approved provisions under such a scenario could be earmarked for subsequent site-specific or ancillary modifications. A fair balance must be struck to give the parties a comfort zone and to enable the breadth and size of the hearing to remain manageable. These mechanisms must be refined and agreed to. If not, the Board may be requested to impose them.

No party can take refuge under the provision of subsection 17(37)(a) to avoid the necessity to scope. This provision allows the whole-plan appellant to launch an appeal without specifying the specific policies to which the appeal applies. However, after the appeals have been launched and once the pre-hearing process commences, the Board can issue directions and impose obligations for specificities. Particularly at a stage when hearing organisation is involved, the Board has the authority to make demands for scoping on any party appearing before it. Any consideration that a state of “suspended obligation” can be made to persist after the appeal and throughout the pre-hearing process is an anathema to common sense. More importantly, the Board is of the view that the urge to litigate everything in order to litigate something is uneconomical and counterproductive.7

(Emphasis added)

This ruling from the Board was not met with ease. Nonetheless, the concept of scoping has been applied successfully in a number of municipalities following Mr. Lee’s decision, most notably by Halton Region and to a certain extent, by the Town of Richmond Hill.

Finally, although the obligation to scope is still a case law principle, following Mr. Lee’s decision, the Board issued its Practice Direction for Growth Plan Hearings.8 Direction 3 states that where a party appeals a plan on the basis of non-conformity with the Growth Plan, it must set clear statements to describe non-conformity but also a list of any portions of the plan that it no longer disputes:

A party that appeals on the ground that the plan or the amendment does not conform to either the upper- tier official plan or a growth plan or both shall provide two (2) items at the earliest opportunity in the pre-hearing process:

  • Clear statements describing the non-conformity, and
  • A list of any portions of the plan or amendment the party no longer disputes.

This Practice Direction provides further support that an appellant cannot perpetually hold parts of the plan under appeal.

B) The Value of Partial Approvals

Partial approval motions may also be brought by a municipality to mould an otherwise unwieldy and unapproved official plan into shape and form. The purpose of a partial approval motion is to seek approval of parts of the plan that are no longer under appeal. Since many parties appeal the plan in its entirety, the likelihood of success of this motion is inextricably linked to the amount of work done by the municipality and other parties in attempting to find common ground and work through their issues. Partial approval motions are usually more successful following a series of further discussions with parties, negotiation and Board-assisted mediation. Minutes of Settlement, whether to settle the appeal in whole or in part, are also key to a successful partial approval motion. To manage the discussions between parties, a “divide-and-focus” approach may be the most effective means in reaching a consensus, bearing in mind that this approach may also require more investment from the municipality.

There are a number of benefits that arise from partial approvals, all which relate to hearing management:

  1. Limiting the scope of issues in dispute – In order to move a GPH forward, it is essential identify those sections of the plan that raise the most concern for appellants and those sections that do not. Although parties may insist on holding the entire plan under appeal at the outset, the Board generally expects that by the time the matter has advanced further, some form of consensus will have been reached between the municipality and the parties. From a practical perspective, since each party participating in the hearing must provide an issues lists, partial approvals assist in identifying these issues and also helps in scoping witness statements and pushes the Board process forward.
  2. Adding context and clarity to the appeals – To understand the main concerns raised by an appellant with respect to certain sections of a plan, the municipality must understand the effect of those sections in context of the overall policy framework. For example, although an appellant may not have an issue with Policy A, they may hold both Policy A and Policy B under appeal since, in their view, a concern is raised when both policies are read together. A common example is where Policy A is a definition taken verbatim from the PPS, but Policy B modifies the interpretation of Policy A. By releasing Policy A for approval, the appellant is able to provide a clearer picture to the municipality to understand their concern since it is evident that their issue lies with Policy B and not the PPS definition.
  3. Advancing settlements – Given the number of parties involved, it is not uncommon for parties with a similar interest to have the same concern regarding a particular policy in the plan. Resolution of this policy with one appellant may therefore lead to the resolution or further scoping of a number of other appeals, particularly if the municipality makes a commitment through Minutes of Settlement to bring the resolved policy forward for partial approval.

Most importantly, from a public interest perspective, partial approvals allow sections of an official plan that respond to changes in Provincial policies and plans (and therefore are not generally contested by any party) to be approved in advance of the final resolution of the appeals. Since the GPH process is a multi-year process, partial approvals allow those planning applications that are being submitted to the municipality in the meantime to be considered in light of the latest Provincial policies and plans in the context of the official plan itself.

Since partial approvals may only be approved by the Board on consent, partial approval motions are usually brought in conjunction with a motion to scope. The purpose of this is two-fold: first, to encourage parties to seriously consider those sections of the plan they intend to hold under appeal; and second, to request the Board to direct those parties that are being unreasonable to list only those sections that they intend to adjudicate at a hearing. The request to scope may also be coupled with the threat of a cost order in the event that appeals to certain sections of the plan are abandoned in advance of the hearing. Again, the importance of harvesting work and consensus reached as a result of prior negotiations is essential to avoid an adversarial approach.

Finally, there have been certain concerns expressed regarding the implementation of partial approval orders, and in particular, the Board’s jurisdiction to modify a section of the plan once that section has been approved. To address this concern, the draft Order for partial approval can be structured in a way that specifically recognizes the Board’s jurisdiction and reserves the Board’s right to consider such further modifications to approved policies as they may relate to the issues brought before the Board to dispose of outstanding appeals (with the understanding that parties will limit their remaining issues to those portions of the plan still held under appeal). This approach has been successfully used in York Region, Halton Region and the Town of Richmond Hill as a means of moving matters forward.9

Finally, it is important to recognize that the Board not only understands the value of partial approvals, but endorses this approach. In the words of Mr. Lee,

The Board endorses fully the principle of reciprocity: that the procedural refinements for the hearing, which should include issue identification, phasing designs and work schedules must march in concert with a steady progression towards the path of partial approvals. Both paths are important. Neither should be the exclusive tool.10

In sum, there is value in partial approvals for both the municipality seeking to have the plan approved and appellants seeking to resolve their appeals. For the municipality, partial approvals allow updated sections of the official plan to be shared with the public and guide municipal staff in processing planning applications. For the appellants, partial approvals serve as a necessary stepping stone towards scheduling a hearing before the Board by providing better context and clarity to the issues to be adjudicated, and may even result in a settlement of their appeal.

C) Request for Alternative Language and Mapping

Although parties are required to submit an issues list in advance of the hearing, it is common for issues to be broad in scope. The reason for this is similar to the reason why parties tend to appeal an official plan in its entirety. Since experts are not generally asked to prepare witness statements until the hearing is imminent, parties tend to submit broader issues in an attempt to avoid framing their concern in a way that may restrict the ability of their expert to challenge that issue in the future. The most common “catch all” issue is: “Is this policy consistent with the PPS and in conformity with the Growth Plan?” Unfortunately, this issue does not set the stage for a constructive and useful response by the appellant’s own witness and offers even less guidance for witnesses called on behalf of the municipality to respond to this issue. It may only be through the exchange of witness statements, reply witness statements, or oral evidence given at the hearing when the party’s true concerns with the plan are unveiled. This type of dialogue is not only expensive and unproductive, but unnecessary.

Certain municipalities have incorporated into the Procedural Order a requirement for parties seeking to challenge policies of the plan to provide alternative wordings for each of the sections that they have held for adjudication, unless they are proposing a complete deletion of such policies. Similarly, unless parties are proposing a complete removal of a map, municipalities have requested that parties seeking to amend a map to provide alternative mapping that would address their concerns.

Although this approach demands more work from the party (to provide alternative language) and the municipality (to respond to alternative language), this type of exercise significantly reduces the length of a hearing. This exercise may also help foster further dialogue between the party and municipality that may lead to potential settlements based on wordsmithing where the general intent of the municipality and the party seeking the modification align.

As expected, the request for alternative language was initially met with opposition. However, following motions seeking this new procedural direction in the York Region and Halton Region GPHs, the value of this approach was recognized by the Board in its Practice Direction. Direction 6 states as follows:

The Board’s procedural order should set a date by which those parties who are opposed to the official plan policies approved by the municipality are required to provide an alternative text for the policies to which they object.

It is important to note that the Practice Direction is limited to “alternative text” and does not necessarily apply to alternative mapping found in an official plan. The difficulty with providing alternative mapping may arise from the fact that the mapping set out by a municipality is based on information that is unavailable to the public. However, in the authors’ view, a valid challenge can still be made by an appellant by providing alternative mapping on the basis that certain assumptions have been made to arrive at that mapping. This does not prejudice the appellant (since it is admitted that assumptions were made) but promotes further dialogue by placing an onus on the municipality to respond. As with the benefits associated with alternative language, providing alternative mapping assists both the municipality and the party by reducing hearing costs and may lead to a potential settlement of an appeal.

D) Other “Traditional” Hearing Management Tools

Before we move onto the next part of this paper, it is worthwhile to note that GPHs benefit significantly from other hearing management tools that are typically used in the Board process. For example, phasing and mediation are valuable tools that have been recognized by the Board in its Practice Direction.11

With respect to phasing, given the nature and scope of the issues addressed in GPHs, the Board may direct the parties to phase the hearing in order to reduce duplication, adjudicate “threshold” matters in advance of other issues and manage the hearing of issues on a topic-by-topic basis. For example, phasing of the hearing may allow issues that may be addressed by an anticipated update to a Provincial Plan or guideline to be delayed to a later phase of the hearing, resulting in the resolution of that appeal.

Other tools include encouraging municipalities to take the initiative to prepare a consolidated issues list early on in the process, asking parties to consent to a joint compendium of documents and streamlining the process to qualify expert witnesses.12 All these of these hearing management tools have been recognized in the Board’s Practice Direction.

Part 2: The Principle of Difference

Part 1 of this paper focused on hearing management tools that have been successfully adopted in GPHs. Part 2 of this paper will focus on the principle of deference as a new appeal management tool and why this principle should be advocated by municipalities and considered by the Board in GPHs.

The authors submit that there are two forms of deference to be considered. The first is based on the Board’s recognition that fundamental planning decisions made by the municipality are afforded a higher degree of deference. The second is based on the statutory principle of deference found under Section 2.1 of the Planning Act following Bill 51.

A) Deference for Foundational Decisions

The principle of deference to foundational decisions made by Council can be traced back to earlier urban expansion cases. In considering appeals to expand an urban boundary, the Board has recognized that the establishment of a municipality’s growth strategy is one of the most fundamental planning decisions it can make:

In considering appeals to expand the urban boundary of a municipality the Board recognizes that for an urban municipality the establishment of its growth strategy is one of the most fundamental planning decisions it can make. It gives effect to its economic development and growth strategy, gives direction to its long-term capital budget, and establishes for the private sector and the general public the basic land use expectations of the municipality.

The Board should not interfere in this fundamental municipal planning exercise and decision making process unless it is clear:

  1. that the municipality has made a fundamental error in its assessment of its need for urban land to achieve its projected urban growth and approved development strategies, or
  2. that the decision to expand or not to expand the urban boundary is at odds with the directions of the Provincial Planning Statement, or
  3. that there has been breach of the prescribed planning process afforded individuals as a matter of right.13

Vision statements that have been long-established in an official plan and reflect the expectation of a community over decades should be offered some degree of deference. The Board was reluctant to intervene with a municipality’s long-term planning vision in Stamm v. Port Hope (Municipality), where the Board noted the following:

The Board recognizes that the development of the long-term planning vision and growth management strategy is undoubtedly the most significant planning exercise ever undertaken by the County and its lower tier municipalities. In this case, the process was made more onerous by the anomalous situation whereby the County is not the approval authority for any Planning Act matter. There is only one other region within the Greater Golden Horseshoe Growth Plan area where this same scenario exists (Dufferin County).

In the present case, given the history and the background, the Board is not convinced that intervention in the municipal growth strategy is either warranted or justified.14

In the recent York Region Phase 1 decision, the Board suggested that a “fundamental error” would be required before the Board would interfere with a municipality’s vision for growth:

The Board finds that the Region’s land Budget is achievable. The building permits issued from 2006 to 2011 is indicative that the density targets for Markham in particular, are not overly ambitious. […] The Board finds no fundamental error in the Region’s assessment of its land needs and no breach of the Planning process. The Board therefore sees no need to interfere with the Region’s and Markham’s vision of its growth and development strategy.15

The authors submit that it is not appropriate for an appellant to restate the planning vision for a community based on an expert’s interpretation of that vision unless there is clear and demonstrable conflict with the PPS or Provincial Plans. In the absence of clear and demonstrable conflict, this evidence cannot rank equally or ahead of the well-established and historic statement of the will of the community. The Board should carefully consider weighing this form of expert evidence against the foundational and fundamental decisions made by Council in response to public consultation, taking into account of the history and background of the community.

B) Deference Under Section 2.1 of the Planning Act

Bill 51 introduced the principle of statutory deference in Section 2.1 of the Planning Act. The Board must “have regard for” Council’s decision and the material considered by Council in making that decision.16 The authors submit that this principle has had different Board treatment in site specific development cases than in planning policy cases such as GPHs. There is good reason for this distinction; however, even in site specific development cases the principle of deference is affirmed:

In Keswick Sutherland School Inc. v. Halton (Municipality), the Board stated:

[…] In reaching my decision, I have been particularly mindful of the provisions of s.2.1 of the Planning Act ("Act") which states that I shall have regard to any decision made under the Act by a municipal council.

In Ottawa (City) v. Minto Communities Inc., the Divisional Court stated:

[…] The words "have regard to" do not by themselves suggest more than minimal deference to the decision of Municipal Council. However, in the context of the Planning Act, and balancing the public interest mandates of both the Board and the municipality, I would agree with Member Stefanko in Keswick Sutherland that the Board has an obligation to at least scrutinize and carefully consider the Council decision, as well as the information and material that was before Council.

In Jennison Construction Ltd. v. Ashfield-Colborne-Wawanosh (Township), the Board stated:

The Board finds that in considering the new directions of Section 2 of the Planning Act that Section 2.1 is fundamental when it states:

Decisions of councils and approval authorities

2.1 When an approval authority or the Municipal Board makes a decision under this Act that relates to a planning matter, it shall have regard to,

(a) any decision that is made under this Act by a municipal council or by an approval authority and relates to the same planning matter; and

(b) any supporting information and material that the municipal council or approval authority considered in making the decision described in clause (a). 2006, c.23, s. 4.

The Board in having regard to the decisions of the local Council, and the Provincial Ministries having jurisdiction over certain aspects of the appeals has carefully considered the varied positions put forward by these bodies and the testimony of those who oppose the proposal. The Board in doing so must consider the decision of the approving authorities but is also obligated to bring its own determination based upon the evidence presented at this hearing.

As noted in Part 1 of this paper, GPHs are significantly different from site specific hearings.  Some of these differences are outlined below and support a higher degree of deference for Council decisions.

1. GPHs are Pure Planning Policy Cases

The degree of deference, whether it is based on the Planning Act or on the case law, depends on the type of case and the character of the issues in that case brought before the Board.  The Board has recognized that planning policy cases such as GPHs should be dealt with differently than site specific development cases.  In pure planning policy cases, the reference to deference has a different and more potent context, as noted in Kanata Research Park Corp. v. Ottawa (City):

The Board agrees that in terms of drafting there should be some form of deference to the municipality who were to be empowered, under Bill 51 to amend the Planning Act, (the Board is required to have regard for the municipal decision section 2.1 of the Planning Act).  Specifically, rather than raising concerns and expecting the City to justify its position, it is instead incumbent, on an appellant whose duty is to prosecute the appeal, to seek discussion and explanation prior to the appeal.

The type of interests involved is also different between site specific development cases and pure planning policy cases.  In a site specific development case, the private interests in a specific property of an owner protected by appeal are at issue.  In a pure planning policy case, the public interest is more predominant.

It should also be understood that while the Board process is public process, it cannot duplicate the extensive public process that led to municipal approval of an official plan.  This provides further support for providing a greater degree of deference in the case of GPHs.

2. GPHs Are Time Sensitive and Policy Sensitive

As mentioned in Part 1, GPHs often involve a significant number of parties, a broad range of issues (many of which are shared and are overlapping), long negotiation processes and many layers of settlement.  GPHs are also subject to statutory time limits which rights of appeal may delay.  For example, following the release of Amendment 2 to the Growth Plan, municipalities will need to start the Growth Plan conformity exercise to plan for population and employment forecasts to 2041.

Given the length of time required to fully complete a GPH, these types of hearings are particularly susceptible to changes in policy direction from the Province.  It is therefore impractical to respond to concerns raised by appellants that amount to mere anxiety about future policy application in the case where the amendments are not required to be consistent with the PPS or conform to Provincial Plans.  To reward such appeals with non-critical policy amendments will only encourage more appellants to submit these issues in the future in GPHs and further compound the impracticality.

3. GPHs Involve Two Layers of Deference

Another difference between GPHs and site specific development hearings is that the approval authority for such hearings is the Province instead of the municipality.  This creates an additional layer of deference that should be considered by the Board.

The Provincial review process provides the Minister of Municipal Affairs and Housing with the best opportunity to complete a comprehensive review of the degree of consistency with the PPS and conformity with Provincial Plans.  Policy 4.5 of the PPS 2014 recognizes that the Minister has expanded deference in finding consistency:

In implementing the Provincial Policy Statement, the Minister of Municipal Affairs and Housing may take into account other considerations when making decisions to support strong communities, a clean and healthy environment and the economic vitality of the Province.

Accordingly, unless there is clear and demonstrable conflict with the PPS or Provincial Plans, it is submitted that the additional step taken by the Province in reviewing the official plan adds another layer of deference to be considered by the Board.

C) Spectrum of Compliant Responses

Finally, it should be recognized that the test for consistency with the PPS and conformity with Provincial Plans allows for a spectrum of compliant responses.  There is no “one size fits all” approach to consistency and conformity.  The approach that the municipality chose and the Minister accepted following Provincial approval of an official plan should, if it falls within a broad range of complaint responses, be entitled to deference.

The concept of a spectrum of compliant responses also respects that each municipality is unique.  The individuality of municipalities has been reflected in the PPS and Provincial Plans.  For example, the PPS, the Growth Plan, the Niagara Escarpment Plan and the Greenbelt Plan all include a section noting that planning authorities or decision-makers may go beyond the minimum standards set by the Province so long as there is no conflict.17

The diversity of municipalities and the policies that may apply to it is also recognized in a new section of the PPS 2014, under Part III: How to Read the Provincial Policy Statement:

The Provincial Policy Statement recognizes the diversity of Ontario and that local context is important. Policies are outcome-oriented, and some policies provide flexibility in their implementation provided that provincial interests are upheld.

While the Provincial Policy Statement is to be read as a whole, not all policies will be applicable to every site, feature or area. The Provincial Policy Statement applies at a range of geographic scales.

Some of the policies refer to specific areas or features and can only be applied where these features or areas exist. Other policies refer to planning objectives that need to be considered in the context of the municipality or planning area as a whole, and are not necessarily applicable to a specific site or development proposal.

The authors submit that the plan and decisions made by Council in adopting the plan should be given further deference in recognition of this spectrum approach.

D) The Board’s Jurisdiction to Interpret the “Have Regard To” Standard

It is uncertain how much weight the deference argument or the spectrum approach will carry with the Board in the GPH context. What is clear is that the Board certainly has the jurisdiction to do so. As a tribunal under the Statutory Powers Procedures Act, the Board maintains absolute jurisdiction over its own procedure.18 Determining the deference to be afforded to this type of decision is inherent in the Board’s power to organize its own process so long as it falls within the “have regard to” standard under the Planning Act. Although the case law has interpreted the “have regard to” standard narrowly, the leading line of cases does not prohibit the Board from giving more latitude to this standard in appropriate circumstances.19

The principle of deference and the spectrum approach may provide the Board with a framework that balances the rights of an appellant in appealing an official plan with the interests of a municipality to complete the Growth Plan conformity exercise within a reasonable timeframe. This is particularly the case where an appellant proposes alternative language that (1) undermines Council’s vision and fundamental decisions made by the community, (2) or amounts to a “preference” and does not resolve an alleged inconsistency or non-conformity of the plan.

E) The Option of Legislative Change

By adopting an expanded approach to the role of deference in the case law, the Board would retain greater flexibility to deal with appeals appropriately on a case-by-case basis. Options to manage the cost and time delay in GPHs clearly include legislative change to limit appeal rights for at least some parts of the GPH process. A middle road, whether or not the principle of deference develops further in the case law, would be to seek limited amendments to the Planning Act to better manage the scope of appeals and their conduct.

A shopping list of possible limited Planning Act amendments to address the GPH process going forward could include:

  1. Prohibiting whole plan appeals of comprehensive planning amendments;
  2. Requiring alternative policy language which is sought through appeals to be set out in the notice of appeal;
  3. Increasing the standard of deference for GPH appeals by amending the “have regard to” standard and by imposing in addition an onus on the appellant to show clear and demonstrable conflict with applicable provincial legislation, Provincial Plans or the PPS.

The degree to which legislative change is required should relate to a solid understanding as to why the GPH process was fraught with delay. As discussed in the Introduction, the main reasons that appeared to prompt the high density of appeals in GPHs were flawed. Whether stakeholders will recognize the flaws in the reasons that prompted the appeals in the first place or not going forward is certainly a valid factor in determining the extent to which legislative change is necessary to manage the process in the future. One thing is clear, with the threat of the next wave of Growth Plan conformity exercises overlapping the completion of the first wave, change in this process must be seriously considered.

Conclusion

With the recent Amendment 2 to the Growth Plan, it is clear that GPHs are here to stay, at least for another round of appeals. These appeals will likely take place over the next decade once the current GPHs have concluded. This offers all parties, including municipalities and the Board with an opportunity to apply the lessons learned from the first wave of GPHs.

From the authors’ perspective, current hearing management tools and the Practice Directions are not sufficient to change this process. The Board must be vested with robust legal tools to effectively manage the unique challenges raised by GPHs. Where the Board finds that it does not have sufficient legal tools, legislative change may be required to streamline processes in advance of the adjudication of the next Growth Plan conformity exercise in order to best protect the public interest.


1 Planning Act, R.S.O. 1990, c. P.13, Section 3(5).

2 See OMB Case Nos. PL101128, PL101233 and PL101238 (York Region), PL091166, PL111358 and PL110857 (Halton Region), PL101409 and PL101410 (Durham Region).

3 See OMB Case No. PL091167.

4 For example, 74 notices of appeal were filed in the York Region GPH and 46 notices of appeal were filed in the Halton Region GPH.

5 Refer to Section 17(24) for plans that are exempt from approval and Section 17(40) for plans that have been submitted to the approval authority but for which a notice of decision has not been given within 180 days after the day the plan was received.

6 Angus Glen North West Inc., Re (2012), 2012 CarswellOnt 7977 (OMB) (Angus Glen).

7 Angus Glen at paras 11 and 12.

8 Practice Direction for Growth Plan Hearings, effective September 1, 2013 (Practice Direction).

9 See Order of the Board issued on August 23, 2012 in OMB Case Nos. PL101128, PL101233 and PL101238 (York Region), Order of the Board issued on February 4, 2014 in OMB Case Nos. PL091166, PL111358 and PL110857 (Halton Region) and Order of the Board issued on February 4, 2014 in OMB Case No. PL110189 (Town of Richmond Hill).

10 Angus Glen at para 8.

11 See Directions 2 and 5 of the Practice Direction.

12 See Directions 2, 4 and 9 of the Practice Direction.

13 Ottawa (City) Official Plan Redesignated Land Amendment (Re), [2005] O.M.B.D. No. 921 (OMB) at paras 177-178. Also see Oro-Medonte (Township) Official Plan Amendment No. 17 (Re), [2006] O.M.B.D. No. 427 (OMB) at paras 119-120.

14 Stamm v. Port Hope (Municipality) (2012), 75 O.M.B.R. 100 (OMB) at paras 76-77.

15 Decision and Order of the Board issued on April 1, 2014 in OMB Case Nos. PL101128, PL101233 and PL101238.

16 Planning Act, .S.O. 1990, c. P.13, Section 2.1.

17 See Part III of the PPS 2014, Section 5.4.1.5 of the Growth Plan, Section 5.3 of the Greenbelt Plan and Section 1.1.1 of the Niagara Escarpment Plan.

18 Kraft Canada Inc. v. Menkes Lakeshore Ltd., [2007] 228 O.A.C. 1 (OMB) at paras 29-31. Also see Angus Glen at paras 10, 11, 12 and 15.

19 Ottawa (City) v. Minto Communities Inc. (2009), 63 O.M.B.R. 389 (Div. Ct.).

Authors

Stephen F. Waqué 
SWaque@blg.com
416.367.6275

Isaac Tang 
ITang@blg.com
416.367.6143

Expertise

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