The Wood Bull Guides

Part II [Official Plans, Zoning By-laws and Subdivision Appeals]

Part II of the Tribunal's Rules consists of Rules 26 and 27.  Part II applies to and is specific to proceedings related to:

  • official plans and amendments (s.17(24), (36), (40) and 22(7) of the Planning Act); 
  • zoning by-laws and amendments (s.34 (11) and (19) of the Planning Act); and 
  • non-decisions on plans of subdivision (s.51(34) of the Planning Act).

Click here to expand all subsections below or click on the individual subsection to expand/collapse the details for that subsection

  • RULE 26: INITIATING PROCEEDINGS UNDER SUBSECTIONS 17(24), (36) AND (40), 22 (7), 34(11) AND (19) AND 51(34) OF THE PLANNING ACT

  • 26.01 Application

    This Rule applies to appeals initiated under any of subsections 17(24), (36) and (40), 22(7), 34(11) and (19) and 51(34) of the Planning Act of a decision made by a municipality or approval authority or with respect to the failure of a municipality or approval authority to make a decision under these provisions. The Rules in Part I also apply to these proceedings, unless stated otherwise in Part II that a specific rule is not applicable or when otherwise directed by the Tribunal that a certain rule is not applicable in that proceeding.

  • 26.02 Rules not Applicable

    The following Rules in Part I are not applicable to proceedings identified as appeals to the Tribunal authorized under subsection 17 (24), (36) and (40), 22 (7), 34 (11) and (19) and 51 (34) of the Planning Act save and except where there is an appeal that arises after the municipality or approval authority was given an opportunity to make a new decision (pursuant to subsection 17 (24) and (36), 22 (7), 34 (11) and (19) of the Planning Act) following the Order of the Tribunal to remit the matter to the municipality:
    • Rule 6.04
    • Rule 7.04
    • Rule 8.01(e) 
    • Rule 9
    • Rule 13.01(a) to (g), inclusive
    • Rule 19

  • 26.03 Additional Definitions

    The following definitions are applicable to proceedings under Part II:

    appeal record” or “responding appeal record” are those records described in Rule 26 that shall include, as a minimum, a supporting case synopsis; 

    case management conference” is a hearing event which is directed by the Tribunal in an appeal initiated pursuant to and authorized by subsections 17(24), 17(36) and 17(40), 22(7), 34(11), 34(19) and 51(34) of the Planning Act

    certificate of service” is the form approved by the Tribunal that must be submitted at least 30 days before the date of the case management conference by a person other than an Appellant, municipality or approval authority who wishes to participate in an appeal under subsections 17(24), 17(36), 17(40), 22(7), 34(11), 34(19) or 51(34) of the Planning Act;

    new decision” means the disposition of the municipality or the approval authority in respect of an appeal authorized under subsection 17(24), 17(36), 22(7), 34(11) and 34(19) of the Planning Act for which the municipality or approval authority was provided an opportunity to reconsider its decision or non-decision following a hearing by the Tribunal and Order to remit the matter to the municipality:

    interrogatory procedure”  means the procedure approved by the Tribunal that directs a party to request in writing that another party to the proceeding provide written information or supporting documentation following a case management conference and prior to the hearing of the appeal; and,

    validation” or “validity of the notice of appeal” means the preliminary screening exercise to determine whether or not the content in the notice of appeal filed in the intended proceeding provides an explanation of the appeal pursuant to subsections 17(25), 17(37), 17(41), 22(8), 34 (11.0.0.04), 34(19.0.2) and 51(34) of the Planning Act.

  • 26.04 Enhanced Municipal Record

    When an appeal is filed with the municipality or approval authority in a proceeding  to which the rules of Part II apply, the municipality or approval authority shall prepare a municipal record as prescribed by regulation under the Planning Act and in accordance with Rule 5.04., and in addition to those requirements, shall organize the record of documents and materials in chronological order with a contents page(s) outlining the title or a concise description of each entry separated by tabs and capable of being copied and bound or secured in a binder(s).  The municipality or approval authority shall provide a paper copy of the municipal record to the Tribunal, as well as one electronic copy (pursuant to Rule 7.01).  The municipality or approval authority shall also provide one electronic copy to each person who has filed an appeal, and shall maintain one paper copy with the clerk of the municipality, which shall be available for inspection by any person or copied at a reasonable cost during business hours.

  • 26.05 Preliminary Screening of the Notice of Appeal

    The Tribunal shall, within 10 days of the Registrar’s acknowledgement of receipt of a notice of appeal, undertake a screening to make a preliminary determination of the validity of the notice of appeal, and shall thereafter advise the person who filed the notice, and the municipality and the approval authority, of the result of this screening exercise.

  • 26.06 Dispute as to a Valid Appeal

    Where the screening has made a preliminary determination that a notice of  appeal is valid, the municipality, the approval authority or a party including a person whose application is the subject of the appeal, if they wish to challenge that preliminary determination, may request a date for a motion from the Tribunal, with notice to the Appellant, to set aside the validation of the notice of appeal and to seek an order to dismiss the appeal without a hearing. The requirements in Rule 10 will apply to the motion.

  • 26.07 Tribunal Member May Initiate a Motion

    A Member may initiate a motion, at any time in a proceeding, and direct the municipality, approval authority or a party including a person whose application is the subject of the appeal, to file and exchange submissions necessary for the Tribunal to inquire into the matter of its jurisdiction over the matter raised in the notice of appeal.

  • 26.08 Dispute as to a Not Valid Appeal

    Where the Tribunal has made a preliminary determination that an appeal is not valid, the Tribunal shall notify the person who filed the appeal. A person so notified may within 15 days make a written motion to the Tribunal under Rule 10, challenging the preliminary determination that an appeal is not valid and shall provide the motion materials to the municipality, approval authority and any other Appellants.  The requirements in Rule 10 will apply to this motion.

  • 26.09 The Effect of a Ruling under RULE 26.06, RULE 26.07 and RULE 26.08

    In the event the Tribunal makes a determination that an appeal is not valid, the appeal is dismissed.  In the event the Tribunal sets aside the preliminary determination and finds that the appeal is valid, the appeal will proceed in accordance with the process outlined by these Rules.

  • 26.10 Commencement of the Proceeding

    Where the disposition of an appeal is subject to a prescribed timeline, the commencement of the period to which the timeline applies shall be the date the Registrar advises the Appellant(s) the preliminary screening exercise has determined the appeal is valid.

  • 26.11 Appeal Record and Case Synopsis

    When an Appellant is notified by the Tribunal that a preliminary determination has been made that an appeal is valid, the Appellant shall, within twenty (20) days of receipt of the notice, file three copies of an appeal record and case synopsis with the Registrar and serve one copy upon the municipality and the approval authority.

  • 26.12 Contents of Appeal Record

    The appeal record referred to in Rule 26.11 may contain a copy of any document or part of any document that is contained in the municipal record or, in the alternative to avoid duplication, the Appellant may reference any document or part of a document contained in the municipal record that they intend to rely on. At a minimum, the appeal record shall contain:

    a) a table of contents describing each document in the appeal record;
    b) a copy of the notice of appeal;
    c) a copy of the resolution of council or Notice of Decision of council/approval authority from which the appeal is being taken or a declaration that there has been a failure to make a decision within the prescribed time limit;
    d) a list or a compilation of excerpted portions of the documents contained in the municipal record that the Appellant will rely on;
    e) an affidavit by a person, or persons, setting out the material facts associated with the application, and where the person can be qualified to offer opinion evidence on a matter, that person’s opinion with respect to the matters in issue in relation to the appeal of the decision or non-decision, along with a signed copy of the acknowledgment form attached to the Rules, and the person’s résumé supporting their qualification to present opinion evidence;  
    f) a list of the relevant and applicable statutory and policy provisions which relate to the application and the matters in issue along with extracts of those provisions; and
    g) a chronology of the relevant policy documents that are applicable to the proposal and the dates such documents were adopted, enacted or otherwise took effect.

    In addition, the appeal record may contain any relevant document or material on which the Appellant will rely that:

    a) was available to the municipality and its council during council’s consideration of the matter but was not included in the municipal record; 
    b) in the opinion of the Appellant, should have been available to council during its consideration of the matter, by reason of it being in the possession of the municipality, but was not put before council and has not been included in the municipal record; or
    c) in the event of an appeal of a non-decision of council, any documents or reports which update the application that is the subject of the appeal.

  • 26.13 Contents of the Appellant’s Case Synopsis

    An Appellant shall file an Appellant’s case synopsis in the following form:

    (1)  The Appellant’s case synopsis shall consist of:

    a) the Appellant’s name and contact information;
    b) where an application is the subject of an appeal, a summary of the application;
    c)  a statement of the decision made by the council or the approval authority or a statement that no decision has been taken in time following a complete application;
    d) the nature of the appeal and a list of the issues raised in the appeal relating to questions of consistency with a policy statement issued under section 3(1) of the Planning Act and conformity or conflict with a provincial plan, or with an applicable  official plan;
    e) a detailed review of the facts as referenced from the combined records (the municipal or appeal records), the sections of the subject policies or plans, as the case may be, and the arguments, or opinions that address the issues raised;
    f)  a listing of relevant authorities as may be available (statutes, case law and applicable Tribunal cases) and an analysis or explanation of how the authorities inform the issues;
    g) the text of all relevant excerpted provisions of provincial planning policies, planning instruments, statutes, regulations or by-laws cited;
    h) a statement of the order or other resolution sought from the tribunal; and
    i)  in the event that an oral hearing is afforded by the tribunal, an estimate of the amount of time needed for oral submissions, which in total shall not exceed 75 minutes for each party.

    (2) References to the municipal record or appeal record shall be by volume, tab, page and line number, where applicable. Paragraphs shall be numbered consecutively throughout the case synopsis.

    (3) The Appellant's case synopsis shall not exceed 30 pages in length unless authorized by the Tribunal (It is expected that the case synopsis will be printed in 12 point Arial font, with one and a half spaces between the lines).

    Related Forms
    Sample Synopsis (Word | PDF
  • 26.14 Time for Service of Responding Material

    The municipality or approval authority shall advise the Tribunal in writing, within 10 days of its receipt of the appeal record, of their intent to serve and file responding material, and, if one or both elect to serve and file such material, each shall serve it on the Appellant and file it with the Registrar within 20 days of receipt of the appeal record.

  • 26.15 Responding Appeal Record

    Where the municipality or approval authority is of the opinion that the Appellant’s appeal record is incomplete, each may file three copies of a responding appeal record, with the Registrar, and serve one copy upon the Appellant, containing, in consecutively numbered pages arranged in the following order:
    a) a table of contents describing each additional document in the responding appeal record; 
    b) a copy of any documentation which it believes formed part of the process associated with the application, and is material to the determination of the issues and has been omitted by the Appellant; and
    c) an affidavit by a person, or persons, setting out the material facts associated with the appeal, and where the person can be qualified to offer opinion evidence on a matter, that person’s opinion with respect to the issues raised by the Appellant, in relation to the appeal of the decision or non-decision, along with a signed copy of the acknowledgment form attached to the Rules,  and the person’s résumé supporting their qualification to present opinion evidence.

  • 26.16 Responding Case Synopsis and Contents

    (1) The municipality or approval authority may each file three copies of a case synopsis with the Registrar, and, serve one copy upon the Appellant, and may do so irrespective of whether they filed a responding appeal record.  A case synopsis shall contain the following:

    (a) a concise statement confirming the Respondent’s agreement or disagreement with the Appellant’s identification of the original application(s) made by the applicant, the decision or non-decision being appealed by the Appellant and summarizing the nature of the decision(s) made by the Council or the Approval Authority, and where the Respondent disagrees, providing the Respondent’s position;
    (b) a concise overview statement describing the Respondent’s position on the nature of the appeal and the Appellant’s issues relating to questions of consistency with a policy statement issued under section 3(1) of the Planning Act and conformity or conflict with a provincial plan or applicable official plan;
    (c) a concise summary of the facts in the Appellant’s summary of facts relevant to the identified issues of consistency, conformity or conflict in the appeal that the Respondent accepts as correct and those facts with which the Respondent disagrees, and a concise summary of any additional facts relied on, with such reference to the contents of the municipal record, Appellant’s appeal record, or the Respondent’s appeal record as is necessary;
    (d) the position of the Respondent with respect to each issue raised by the Appellant, immediately followed by a concise argument with reference to the facts, law, policies, plans, and authorities relating to that issue; 
    (e) a statement of any additional issues of consistency, conformity or conflict raised, immediately followed by a concise argument with reference to the facts, law, policies, plans, and authorities relating to each such additional issue;
    (f)   a listing of relevant authorities as may be available (statutes, case law and applicable Tribunal cases) and an analysis or explanation of how the authorities inform the issues;
    (g)  the text of all relevant excerpted provisions of provincial planning policies, planning  instruments, statutes, regulations or by-laws cited;
    (h)  a statement of the order that the Tribunal will be asked to make; and
    (i)   in the event that an oral hearing is afforded by the Tribunal, an estimate of the amount of  time needed for oral submissions, which in total shall not exceed 75 minutes for each 
    party. 

    (2) References to the municipal record and Appellant’s appeal record or the Respondent’s appeal record shall be by volume, tab, page and line number, where applicable. Paragraphs shall be numbered consecutively throughout the case synopsis.

    (3)  The Respondent's case synopsis shall not exceed 30 pages in length, unless authorized by the Tribunal (It is expected that the case synopsis will be printed in 12 point Arial font, with one and a half spaces between the lines).

  • 26.17 Determination to Hold a Case Management Conference

    The Tribunal shall direct the Appellant, municipality or approval authority to participate in a case management conference when the screening has made a preliminary determination that a notice of appeal is valid.

  • 26.18 Notice Period and Directions for the Case Management Conference

    The notice period for the case management conference shall be 75 days unless otherwise directed by the Tribunal.  The Tribunal will also direct the Appellant, municipality or approval authority to provide notice of the time and place of the case management conference, and to file an affidavit as directed by the Tribunal to confirm service of the notice.

    Related Forms
    • Sample Notice of Case Management Conference (PDF)
    • Sample Affidavit of Service (Word | PDF)
  • 26.19 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. In addition, a person shall explain whether the decision or non-decision of the municipality or approval authority was inconsistent with a policy statement 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.  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.

    Related Forms
    • Submission Form – Case Management Conference (Word | PDF)
    • Certificate of Service (Word | PDF

 


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. 

Table of Contents

 

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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