The Wood Bull Guides

Part VI: Practice and Procedure, Planning Act Appeals (s.38 to 42)

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  • 38(1) PLANNING ACT APPEALS - APPLICATION OF SECTION

    38 (1) The practices and procedures set out in sections 39, 40 and 42 apply with respect to appeals to the Tribunal under subsections 17 (24) and (36), 22 (7) and 34 (11) and (19) of the Planning Act of a decision made by a municipality or approval authority in respect of an official plan or zoning by-law or the failure of a municipality to make a decision in respect of an official plan or zoning by-law, except for an appeal,

    (a) that is in respect of a new decision that the municipality or approval authority was given an opportunity by the Tribunal to make, where the Tribunal determined that the decision is inconsistent with a policy statement issued under subsection 3 (1) of the Planning Act, fails to conform with or conflicts with a provincial plan or fails to conform with an applicable official plan;

    (b) where the Tribunal has received a notice from the Minister responsible for the Planning Act, in accordance with the Planning Act, that a matter of provincial interest is, or is likely to be, adversely affected by the plan or by-law or the parts of the plan or by-law in respect of which the appeal is made; or

    (c) that is an appeal under subsection 22 (7) or 34 (11) of the Planning Act in respect of the failure of a municipality to make a new decision that it was given an opportunity by the Tribunal to make.

    Related Sections

    The practices and procedures set out in sections 39, 40 and 42 address the following:

    • a case management conference is mandatory and shall include discussion of opportunities for settlement (s.39);

    • persons other than the appellant or the relevant municipality or approval authority may be permitted to participate in an appeal on the basis of written submissions made at least 30 days before the case management conference.  The written submission must address whether the decision or failure to make a decision was inconsistent with a policy statement issued under subsection 3(1) of the Planning Act, fails to conform with or conflicts with a provincial plan, or fails to conform with an applicable official plan (s.40);

    • if the Tribunal holds an oral hearing, the only persons who may participate in the hearing are the parties, and they are restricted to making oral submissions and may not adduce evidence or call or examine witnesses (s.42).

    Related Statutes

    An appeal to the Tribunal under subsections 17(24) and 17(36) of the Planning Act may only be made on the basis that the part of the decision to which the notice of appeal relates is inconsistent with a policy statement issued under subsection 3(1), fails to conform with or conflicts with a provincial plan or, in the case of the official plan of a lower-tier municipality, fails to conform with the upper-tier municipality’s official plan (s.17(24.0.1) and 17(36.0.1) of the Planning Act).

    An appeal to the Tribunal under subsection 22(7) of the Planning Act may only be made on the basis that,

    • the existing part or parts of the official plan that would be affected by the requested amendment are inconsistent with a policy statement issued under subsection 3(1), fail to conform with or conflict with a provincial plan or, in the case of the official plan of a lower-tier municipality, fail to conform with the upper-tier municipality’s official plan; and

    • the requested amendment is consistent with policy statements issued under subsection 3(1), conforms with or does not conflict with provincial plans and, in the case of a requested amendment to the official plan of a lower-tier municipality, conforms with the upper-tier municipality’s official plan (s.22(7.0.0.1) of the Planning Act).

    An appeal to the Tribunal under subsections 34(11) of the Planning Act may only be made on the basis that,

    • the existing part or parts of the by-law that would be affected by the amendment that is the subject of the application are inconsistent with a policy statement issued under subsection 3(1), fail to conform with or conflict with a provincial plan or fail to conform with an applicable official plan; and

    • the amendment that is the subject of the application is consistent with policy statements issued under subsection 3(1), conforms with or does not conflict with provincial plans and conforms with applicable official plans (s.34(11.0.0.0.2) of the Planning Act).

    An appeal to the Tribunal under subsection 34(19) of the Planning Act may only be made on the basis that the by-law is inconsistent with a policy statement issued under subsection 3(1), fails to conform with or conflict with a provincial plan or fails to conform with an applicable official plan (s.34(19.01) of the Planning Act).

    Related Regulations

    See  O. Reg. 102/18: PLANNING ACT APPEALS, which:

    • establishes timelines for the disposition of appeals to the Tribunal under the Planning Act.

    • establishes time limits on oral submissions relating to appeals under subsections 17(24), (36) and (40), 22(7), 34(11) and (19), and 51(34) of the Planning Act.

    • provides that in addition to the restriction under clause 42(3)(b) of the LPAT Act on the calling or examining of witnesses at an oral hearing, no party or person may call or examine witnesses prior to the hearing.

    Related Tribunal Rules

    Part II of the Tribunal's Rules of Practice and Procedure applies to the appeals referred to in this subsection.

    Wood Bull Commentary

    The restriction on the scope of oral hearings effectively eliminates de novo hearings relating to the appeals described in section 38.

    This is at odds with section 10.1 of the Statutory Powers Procedure Act which provides as follows with respect to the examination of witnesses:

    A party to a proceeding may, at an oral or electronic hearing,

    (a) call and examine witnesses and present evidence and submissions; and

    (b) conduct cross-examinations of witnesses at the hearing reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding.

    However, pursuant to subsection 31(3) of the LPAT Act, the LPAT Act, regulations made under the LPAT Act, and the Tribunal's Rules of Practice and Procedure prevail, in the event of a conflict, over the provisions of the Statutory Powers Procedure Act.

  • 38(2) SAME

    38(2) The practices and procedures set out in sections 39, 41 and 42 apply with respect to appeals to the Tribunal under subsections 17 (40) and 51 (34) of the Planning Act of the failure of an approval authority to make a decision in respect of an official plan or plan of subdivision.

    Related Sections

    The practices and procedures set out in sections 39, 41 and 42 address the following:

    • a case management conference is mandatory and shall include discussion of opportunities for settlement (s.39).

    • persons other than the appellant or approval authority may be permitted to participate in an appeal on the basis of written submissions made in accordance with timing provided in the Tribunal's rules (s.41).

    • if the Tribunal holds an oral hearing, the only persons who may participate in the hearing are the parties and persons identified by the Tribunal under section 41, and they are restricted to making oral submissions and may not adduce evidence or call or examine witnesses (s.42).

    Related Statutes

    Subsection 17(40) of the Planning Act provides as follows:

    If the approval authority fails to give notice of a decision in respect of all or part of a plan within 210 days after the day the plan is received by the approval authority, or within the longer period determined under subsection (40.1), any person or public body may appeal to the Tribunal with respect to all or any part of the plan in respect of which no notice of a decision was given by filing a notice of appeal with the approval authority, subject to subsection (41.1).

    Subsection 51(34) of the Planning Act provides as follows:

    If an application is made for approval of a plan of subdivision and the approval authority fails to make a decision under subsection (31) on it within 180 days after the day the application is received by the approval authority, the applicant may appeal to the Tribunal with respect to the proposed subdivision by filing a notice with the approval authority, accompanied by the fee charged under the Local Planning Appeal Tribunal Act, 2017.

    Related Regulations

    See Related Regulations under subsection 38(1) above.

    Related Tribunal Rules

    Part II of the Tribunal's Rules of Practice and Procedure applies to the appeals referred to in this subsection.

    Wood Bull Commentary

    See Commentary under subsection 38(1) above.

  • 38(3) TIMELINES

    38(3) An appeal referred to in this section must adhere to any timelines prescribed by the regulations made under this Act.

    Related Sections

    Clause 43(1)(c) provides that the Minister may make regulations prescribing timelines applicable to proceedings on appeals to the Tribunal under the Planning Act.

    Related Regulations Related Tribunal Rules

    Rule 3.04 of the Tribunal's Rules of Practice and Procedure provides as follows:

    Extension or Reduction of Time The Tribunal may extend or reduce any time required in these Rules or in an Order, with any terms or conditions, unless a statute or regulation provides otherwise.  The Tribunal cannot extend a time period to file an appeal prescribed in a statute, but may be authorized to extend a time period prescribed by regulation, upon terms or conditions provided for that purpose in the regulation.  A request for a change in time requirements established in the proceeding may be made by bringing a motion, or the Tribunal may change a time requirement on its own initiative, with or without a hearing event, either before or after the time period expires.

  • 39(1) MANDATORY CASE MANAGEMENT CONFERENCE

    39(1) The Tribunal shall, upon receipt of the record of appeal, direct the appellant and the municipality or approval authority whose decision or failure to make a decision is being appealed to participate in a case management conference under subsection 33 (1).

    Legislative History

    The repealed Ontario Municipal Board Act did not include a similar provision relating to case management conferences; however, Rule 70 of the former Ontario Municipal Board's Rules of Practice and Procedure provided for the conducting of prehearing conferences by the Board.

    Related Sections

    Subsection 33(1) identifies the matters that may be addressed at a case management conference.  The case management conference required under subsection 39(1) shall include discussions of opportunities for settlement. (s.39(2)).

    Related Tribunal Rules

    Rules 26.17 to 26.23 of the Tribunal's Rules of Practice and Procedure apply to the case management conference for appeals under subsections 17(24), (36) and (40), 22(7), 34(11) and (19), and 51(34) of the Planning Act.

    As the record of appeal is provided prior to the case management conference, see also Rules 26.11 to 26.16 which set out the requirements for the contents of the appeal record and appellant's case synopsis, and the responding appeal record and responding case synopsis, and the time frames for serving and filing the materials.

  • 39(2) SAME

    39(2) A case management conference required under subsection (1) shall include discussion of opportunities for settlement, including the possible use of mediation or other dispute resolution processes.

    Related Sections

    See Related Sections under subsection 39(1) above.

    Related Tribunal Rules

    Rule 26.20(h) of the Tribunal's Rules of Practice and Procedure provides as follows:

    Case Management Conference ... At a case management conference the Tribunal shall:

    (h) discuss opportunities for settlement, including the possible use of mediation or other dispute resolution processes;

  • 40(1) PARTICIPATION BY OTHER PERSONS, SUBS. 38(1)

    40(1) If a person other than the appellant or the municipality or approval authority whose decision or failure to make a decision is being appealed wishes to participate in an appeal described in subsection 38 (1), the person must make a written submission to the Tribunal respecting whether the decision or failure to make a decision,

    (a) was inconsistent with a policy statement issued under subsection 3 (1) of the Planning Act;

    (b) fails to conform with or conflicts with a provincial plan; or

    (c) fails to conform with an applicable official plan.

    Related Sections

    Subsection 42(1) provides that if the Tribunal holds an oral hearing of an appeal described in subsection 38(1), the only persons who may participate in the oral hearing are the parties.

    Related Tribunal Rules

    Rule 26.19 of the Tribunal's Rules of Practice and Procedure provides as follows:

    Participation in the Case Management Conference  A person other than the appellant, the municipality or approval authority who wishes to participate in an appeal initiated under subsections 17(24), 17(36), 17(40) 22(7), 34 (11), 34(19) or 51(34) of the Planning Act must file a written submission with the Registrar, at least 30 days before the date of the case management conference, and that submission shall explain the nature of their interest in the matter and how their participation will assist the Tribunal in determining the issues in the proceeding. Any submission shall also be provided to the municipality or to the approval authority whose decision or failure to make a decision is appealed and a certificate of service shall be filed with the Registrar to confirm service of any submission.

    Rule 26.20 of the Tribunal's Rules of Practice and Procedure provides, among other things, that at a case management conference the Tribunal shall:

    (a) identify persons other than the appellant, the municipality or approval authority, who wish to participate in the appeal, based on written submissions provided by these persons to the Tribunal

    (b) determine, from the written submissions provided, whether a person may participate in the appeal as an additional party, or participant, on such terms as the Tribunal may determine.

    Related Forms

    Submission Form – Case Management Conference (Word | PDF)

  • 40(2) TIME FOR SUBMISSION

    40(2) The submission must be made to the Tribunal at least 30 days before the date of the case management conference.

    Related Tribunal Rules

    See Related Tribunal Rules under subsection 40(1) above.

  • 40(3) COPY, CERTIFICATE

    40(3) The person must serve a copy of the submission on the municipality or approval authority whose decision or failure to make a decision is being appealed and file a certificate of service with the Tribunal in the form approved by the Tribunal.

    Related Tribunal Rules

    See Related Tribunal Rules under subsection 40(1) above.

    Related Forms

    Certificate of Service (Word | PDF

  • 40(4) ADDITIONAL PARTIES

    40(4) The Tribunal may determine, from among the persons who provide written submissions, whether a person may participate in the appeal as an additional party or otherwise participate in the appeal on such terms as the Tribunal may determine.

    Related Sections

    See Related Sections under subsection 40(1) above.

    Related Tribunal Rules

    Rule 26.20 of the Tribunal's Rules of Practice and Procedure provides, among other things, that at a case management conference the Tribunal shall:

    (b) determine, from the written submissions provided, whether a person may participate in the appeal as an additional party, or participant, on such terms as the Tribunal may determine.

  • 41(1) PARTICIPATION BY OTHER PERSONS; SUBS. 38 (2)

    41(1) If a person other than the appellant or approval authority whose failure to make a decision is being appealed wishes to participate in an appeal described in subsection 38 (2), the person must make a written submission to the Tribunal.

    Related Sections

    Subsection 42(2) provides that if the Tribunal holds an oral hearing of an appeal described in subsection 38(2), the only persons who may participate in the oral hearing are:

    (a) the parties; and

    (b) such persons identified by the Tribunal under subsection 41(3) as persons who may participate in the oral hearing.

    Related Tribunal Rules

    Rule 26.19 of the Tribunal's Rules of Practice and Procedure provides as follows:

    Participation in the Case Management Conference  A person other than the appellant, the municipality or approval authority who wishes to participate in an appeal initiated under subsections 17(24), 17(36), 17(40) 22(7), 34 (11), 34(19) or 51(34) of the Planning Act must file a written submission with the Registrar, at least 30 days before the date of the case management conference, and that submission shall explain the nature of their interest in the matter and how their participation will assist the Tribunal in determining the issues in the proceeding. Any submission shall also be provided to the municipality or to the approval authority whose decision or failure to make a decision is appealed and a certificate of service shall be filed with the Registrar to confirm service of any submission.

    Rule 26.20 of the Tribunal's Rules of Practice and Procedure provides, among other things, that at a case management conference the Tribunal shall:

    (a) identify persons other than the appellant, the municipality or approval authority, who wish to participate in the appeal, based on written submissions provided by these persons to the Tribunal

    (b) determine, from the written submissions provided, whether a person may participate in the appeal as an additional party, or participant, on such terms as the Tribunal may determine.

  • 41(2) TIME FOR SUBMISSION, SERVICE

    41(2) The time for submission and the requirements for service of the submission, if any, shall be as provided in the Tribunal’s rules.

    Related Sections

    Section 32 provides that the Tribunal may make rules governing its practices and procedures.

    Related Tribunal Rules

    See Related Tribunal Rules under subsection 41(1) above.

  • 41(3) ADDITIONAL PARTIES

    41(3) The Tribunal may determine, from among the persons who provide written submissions, whether a person may participate in the appeal as an additional party or otherwise participate in the appeal on such terms as the Tribunal may determine.

    Related Sections

    See Related Sections under subsection 41(1) above.

    Related Tribunal Rules

    See Related Tribunal Rules under subsection 41(1) above.

  • 42(1) ORAL HEARINGS - APPEALS UNDER SUBS. 38 (1)

    42(1) If the Tribunal holds an oral hearing of an appeal described in subsection 38 (1), the only persons who may participate in the oral hearing are the parties.

    Related Sections

    See subsections 40(1) and (4) above.

    Related Tribunal Rules

    See Rules 26.19 and 26.20 of the Tribunal's Rules of Practice and Procedure.

    Rule 26.22 of the Tribunal's Rules of Practice and Procedure provides as follows:

    Tribunal Order  The Member conducting the case management conference will issue an order that may decide any of the matters considered at the conference and will provide procedural directions for any subsequent hearing event, including whether the hearing will be held in writing, electronically, or in person as an oral hearing. The Member conducting any subsequent hearing event, or the hearing, is bound by the order resulting from the case management conference unless the Member is satisfied that there is good reason to vary the order.

  • 42(2) APPEALS UNDER SUBS. 38 (2)

    42(2) If the Tribunal holds an oral hearing of an appeal described in subsection 38 (2), the only persons who may participate in the oral hearing are,

    (a) the parties; and

    (b) such persons identified by the Tribunal under section 41 (3) as persons who may participate in the oral hearing.

    Related Sections

    See subsections 41(1) and (3) above.

    Related Tribunal Rules

    See Related Tribunal Rules under subsection 42(1) above.

  • 42(3) SAME

    42(3) At an oral hearing of an appeal described in subsection 38 (1) or (2),

    (a) each party or person may make an oral submission that does not exceed the time provided under the regulations; and

    (b) no party or person may adduce evidence or call or examine witnesses.

    Related Regulations

    Sections 2 and 3 of O. Reg. 102/18: PLANNING ACT APPEALS, provide as follows:

    Time limit on oral submissions

    2. (1) For the purposes of clause 42 (3) (a) of the Act,

    (a) an oral submission made by a party shall not exceed 75 minutes; and

    (b) an oral submission made by a person other than a party shall not exceed 25 minutes.

    (2) The Tribunal may extend a time set out in subsection (1) if it determines that the extension is necessary for a fair and just determination of the appeal.

    Restriction on witness examinations before hearing

    3. In addition to the restriction under clause 42 (3) (b) of the Act on the calling or examining of witnesses at an oral hearing of an appeal described in subsection 38 (1) or (2) of the Act, no party or person may call or examine witnesses prior to the hearing of such an appeal.

    Related Tribunal Rules

    See Rules 26.23 to 26.26 of the Tribunal's Rules of Practice and Procedure.

    Wood Bull Commentary

    The restriction on the scope of oral hearings effectively eliminates de novo hearings relating to the appeals identified in subsections 38(1) and (2) of the LPAT Act.

    This is at odds with section 10.1 of the Statutory Powers Procedure Act which provides as follows with respect to the examination of witnesses:

    A party to a proceeding may, at an oral or electronic hearing,

    (a) call and examine witnesses and present evidence and submissions; and

    (b) conduct cross-examinations of witnesses at the hearing reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding.

    However, pursuant to subsection 31(3) of the LPAT Act, the LPAT Act, regulations made under the LPAT Act, and the Tribunal's Rules of Practice and Procedure prevail, in the event of a conflict, over the provisions of the Statutory Powers Procedure Act.

 


Bill 139 received Royal Assent on 12 December 2017, and came into force on 3 April 2018, the day named by proclamation of the Lieutenant Governor. 

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Note: Material on the Wood Bull website is intended as general information and commentary.  Please consult the e-Laws website for the legislation.  In order to make these Wood Bull Guides useful resources, we welcome any comments and suggestions.  

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