The Wood Bull Guides

Section 17, Subsections (24) to (30.1) [Appeal Rights/Final Decision: Adoption of Official Plan and Amendments Exempt from Approval]

Subsections amended by Bill 139 are marked below with (*), except for administrative changes.

Bill 139 introduced significant limitations on the basis for appeals of adopted official plans/amendments that are exempt from approval.  The appeals are restricted to issues of consistency or conformity with provincial plans and policy statements and, as applicable, conformity with official plan policies of upper-tier municipalities.  The notices of appeal are required to explain the consistency/conformity issue.

While previous amendments to the Planning Act precluded a right to appeal in regard to specific subject matters, such as second unit policies, Bill 139 limits the possible grounds of all rights of appeal to considerations of policy implementation, not good planning per se

Bill 139 also clarifies when a decision to adopt an official plan/amendment is final and the plan/amendment comes into effect according to whether: (i) there was no right to appeal in regard to the plan/amendment (s.17(27.1)); or (ii) there was a potential right of appeal which was not exercised (s.17(27)). 


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  • 17(24) RIGHT TO APPEAL (*)

    17(24) If the plan is exempt from approval, any of the following may, not later than 20 days after the day that the giving of notice under subsection (23) is completed, appeal all or part of the decision of council to adopt all or part of the plan to the Tribunal by filing a notice of appeal with the clerk of the municipality:

    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. The appropriate approval authority.

    4. In the case of a request to amend the plan, the person or public body that made the request.  2006, c. 23, s. 9 (4); 2017, c. 23, Sched. 5, s. 80.

    Legislative History

    Bill 139 amended this subsection by replacing the words “the Municipal Board” with the words “the Tribunal”.

    Related Statutes

    Subsection 38(1) and the practices and procedures set out in sections 39, 40 and 42 of the Local Planning Appeal Tribunal Act, 2017 apply to appeals to the Tribunal under subsection 17(24) of the Planning Act.  These practices and procedures include 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 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).

    The restriction on the scope of oral hearings effectively eliminates de novo hearings relating to appeals under subsection 17(24) of the Planning Act.

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg 67/18): TRANSITIONAL MATTERS — GENERAL, s.19 Appeal re official plan, notice given under s. 17 (23) of the Act

    Related Tribunal Rules

    Rules of Practice and Procedure:

    Rule 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.

    Rule 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 [Notice Periods]
    • Rule 7.04 [Prefiling of Witness Statements and Reports]
    • Rule 8.01(e) [Role and Obligations of a Party - examine/cross-examine witnesses]
    • Rule 9 [Discovery]
    • Rule 13.01(a) to (g), inclusive [Summons]
    • Rule 19 [Prehearing Conferences]

    Rule 27.03 Appeal of a New Decision or Non-Decision The requirements to initiate a proceeding and notice of hearing appointment set out in the provisions of these Rules shall apply in the event of any appeal of a new decision or non-decision following the remission of an appeal to municipal council, and the Rules in Part I shall apply to the disposition of that proceeding.

  • 17(24.0.1) BASIS FOR APPEAL (*)

    17(24.0.1) An appeal under subsection (24) 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.  2017, c. 23, Sched. 3, s. 6 (1).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    An explanation of alleged grounds of appeal is required to be set out in a Notice of Appeal by subsection 17(25).  Failure to include this explanation will result in the appeal being dismissed without a hearing (s.17(45)1).

    Provincial plans are defined in subsection 1(1) Interpretation.

    Policy statements are issued under subsection 3(1) or deemed by subsection 3(8).

    Parallel subsections:

    Related Regulations

    O. Reg. 174/16 (as amended by O.Reg 67/18) : TRANSITIONAL MATTERS — GENERAL, s.19(1), (2), (5) Appeal re official plan, notice given under s. 17 (23) of the Act

    Related Tribunal Rules

    See Related Tribunal Rules under subsection 17(25) below.

    Wood Bull Commentary

    New subsection 17(24.0.1) changes and limits the basis for appeals in regard to adopted official plans and official plan amendments that are exempt from approval.  Prior to Bill 139, the subject matter of a valid appeal was not restricted by statute. Subsection 17(24)(b) simply required that the Notice of Appeal “set out the reasons for the appeal", with no limitations on the reasons.

    As a result of this Bill 139 amendment, appeals can only be made on the basis that the part of the decision (that is, the part of the official plan or amendment) 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.  

    The Bill 139 amendment means that there is no longer any permissible grounds of appeal which would allow a challenge to the planning merits per se of a newly adopted plan or amendment, that is, for instance, its consistency with the principles of good planning.  

  • 17(24.1) NO APPEAL RE SECOND UNIT POLICIES

    17(24.1) Despite subsection (24), there is no appeal in respect of the policies described in subsection 16 (3), including, for greater certainty, any requirements or standards that are part of such policies.  2011, c. 6, Sched. 2, s. 3 (1).

  • 17(24.1.1) EXCEPTION RE MINISTER

    17(24.1.1) Subsection (24.1) does not apply to an appeal by the Minister.  2011, c. 6, Sched. 2, s. 3 (1).

  • 17(24.1.2) NO APPEAL RE INCLUSIONARY ZONING POLICIES

    Note: On a day to be named by proclamation of the Lieutenant Governor, section 17 of the Act is amended by adding the following subsection: (See: 2016, c. 25, Sched. 4, s. 2 (2))

    17(24.1.2) Despite subsection (24), there is no appeal in respect of policies described in subsection 16 (4), including, for greater certainty, any requirements or standards that are part of such policies. 2016, c. 25, Sched. 4, s. 2 (2)). 

  • 17(24.1.3) EXCEPTION RE MINISTER

    Note: On a day to be named by proclamation of the Lieutenant Governor, section 17 of the Act is amended by adding the following subsection: (See: 2016, c. 25, Sched. 4, s. 2 (2))

    17(24.1.3) Subsection (24.1.2) does not apply to an appeal by the Minister.  2016, c. 25, Sched. 4, s. 2 (2).

  • 17(24.2) NO GLOBAL APPEAL [New Official Plan]

    17(24.2) Despite subsection (24), in the case of a new official plan there is no appeal in respect of all of the decision of council to adopt all of the plan.  2015, c. 26, s. 18 (5).

    Related Sections

    Parallel subsection: Official Plans not exempt from approval (s.17(36.2))

  • 17(24.3) SAME

    17(24.3) For greater certainty, subsection (24.2) does not prevent an appeal relating to a part of the decision or a part of the plan, as authorized by subsection (24). 2015, c. 26, s. 18 (5).

  • 17(24.4) NO APPEAL RE CERTAIN MATTERS [Mentioned in s.17(24.5)]

    17(24.4) Despite subsection (24), there is no appeal in respect of a part of an official plan that is described in subsection (24.5). 2015, c. 26, s. 18 (5).

  • 17(24.5) SAME

    17(24.5) Subsections (24.4) and (36.4) apply to a part of an official plan that,

    (a) identifies an area as being within the boundary of,

    (i) a vulnerable area as defined in subsection 2 (1) of the Clean Water Act, 2006,

    (ii) the Lake Simcoe watershed as defined in section 2 of the Lake Simcoe Protection Act, 2008,

    (iii) the Greenbelt Area or Protected Countryside as defined in subsection 1 (1) of the Greenbelt Act, 2005, or within the boundary of a specialty crop area designated by the Greenbelt Plan established under that Act, or

    (iv) the Oak Ridges Moraine Conservation Plan Area as defined in subsection 3 (1) of the Oak Ridges Moraine Conservation Plan established under the Oak Ridges Moraine Conservation Act, 2001;

    (b) identifies forecasted population and employment growth as set out in a growth plan that,

    (i) is approved under the Places to Grow Act, 2005, and

    (ii) applies to the Greater Golden Horseshoe growth plan area designated in Ontario Regulation 416/05 (Growth Plan Areas) made under that Act;

    (c) in the case of the official plan of a lower-tier municipality in the Greater Golden Horseshoe growth plan area mentioned in subclause (b) (ii), identifies forecasted population and employment growth as allocated to the lower-tier municipality in the upper-tier municipality’s official plan, but only if the upper-tier municipality’s plan has been approved by the Minister; or

    (d) in the case of the official plan of a lower-tier municipality, identifies the boundary of an area of settlement to reflect the boundary set out in the upper-tier municipality’s official plan, but only if the upper-tier municipality’s plan has been approved by the Minister. 2015, c. 26, s. 18 (5).

  • 17(25) NOTICE OF APPEAL (*)

    17(25) The notice of appeal filed under subsection (24) must,

    (a) set out the specific part of the plan to which the notice applies;

    (b) explain how 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; and

    (c) be accompanied by the fee charged under the Local Planning Appeal Tribunal Act, 20171996, c. 4, s. 9; 2015, c. 26, s. 18 (6); 2017, c. 23, Sched. 3, s. 6 (2); 2017, c. 23, Sched. 5, s. 81.

    Legislative History

    Bill 139 amended this subsection by replacing subsection (b), which read “set out the reasons for the appeal", with the more limited grounds of appeal; and by replacing subsection (c) which read “the fee prescribed under the Ontario Municipal Board Act” with the new subsection (c).

    Related Sections

    Subsection 17(24.0.1) establishes the grounds of appeal which are to be addressed in the Notice of Appeal.  

    Related Regulations Related Tribunal Rules

    Rules of Practice and Procedure:

    Rule 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.

    Wood Bull Commentary

    The notice of appeal must explain how the part of the decision (that is, the part of the official plan or amendment) to which the notice 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.

    Subsection 17(25) simply requires that the notice do more than simply allege inconsistency/non-conformity; rather, an explanation must support the allegation. 

    If the inconsistency/non-conformity alleged and explained in the notice of appeal is not sustainable, the appeal will prove to be ineffective because it will be dismissed by the Tribunal (see s.17(45) and 17(46.1)).  

    Therefore, the explanation required by subsection 17(25) is very important as it will form a key consideration when the grounds are considered by the Tribunal.  

    See Commentary on subsection 17(24.0.1) regarding the implications of limiting the grounds of appeal.

    A failure to pay the required fee within the required time is not fatal to the appeal; however, it may affect the scheduling of the hearing process.  Mono (Town) Official Plan Amendment No. 23 (Re), 41 O.M.B.R. 190 (O.M.B.).

  • 17(25.1) REPEALED (*)

    17(25.1) Repealed: 2017, c. 23, Sched. 3, s. 6 (3).

    Legislative History

    Bill 139 repealed subsection 17(25.1) which read as follows: 

    Same

    If the appellant intends to argue that the appealed decision 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, the notice of appeal must also explain how the decision is inconsistent with, fails to conform with or conflicts with the other document.

    Related Regulations Wood Bull Commentary

    Bill 139 repealed subsection 17(25.1) in its entirety.  The amended basis for appeals set out in subsection 17(24.0.1) and the notice requirements set out in subsection 17(25) render 17(25.1) of the pre-Bill 139 Planning Act largely moot in any event.

  • 17(26) TIMING [Notice of Decision Completed]

    17(26) For the purposes of subsections (24), (36) and (41.1), the giving of written notice shall be deemed to be completed,

    (a) where notice is given by personal service, on the day that the serving of all required notices is completed;

    (a.1) where notice is given by e-mail, on the day that the sending by e-mail of all required notices is completed;

    (b) where notice is given by mail, on the day that the mailing of all required notices is completed; and

    (c) where notice is given by telephone transmission of a facsimile of the notice, on the day that the transmission of all required notices is completed. 1996, c. 4, s. 9; 2015, c. 26, s. 18 (8).

  • 17(26.1) USE OF DISPUTE RESOLUTION TECHNIQUES

    17(26.1) When a notice of appeal is filed under subsection (24), the council may use mediation, conciliation or other dispute resolution techniques to attempt to resolve the dispute.  2015, c. 26, s. 18 (9).

  • 17(26.2) NOTICE AND INVITATION [For Dispute Resolution]

    17(26.2) If the council decides to act under subsection (26.1),

    (a) it shall give a notice of its intention to use dispute resolution techniques to all the appellants; and

    (b) it shall give an invitation to participate in the dispute resolution process to,

    (i) as many of the appellants as the council considers appropriate,

    (ii) in the case of a request to amend the plan, the person or public body that made the request,

    (iii) the Minister,

    (iv) the appropriate approval authority, and

    (v) any other persons or public bodies that the council considers appropriate.  2015, c. 26, s. 18 (9).

  • 17(26.3) EXTENSION OF TIME [To Forward Appeal Record, Dispute Resolution]

    17(26.3) When the council gives a notice under clause (26.2) (a), the 15-day period mentioned in clauses (29) (b) and (c) and subsections (29.1) and (29.2) is extended to 75 days.  2015, c. 26, s. 18 (9).

  • 17(26.4) PARTICIPATION VOLUNTARY [In Dispute Resolution]

    17(26.4) Participation in the dispute resolution process by the persons and public bodies who receive invitations under clause (26.2) (b) is voluntary.  2015, c. 26, s. 18 (9).

  • 17(27) DECISION FINAL [Where No Appeals] (*)

    17(27) If one or more persons or public bodies have a right of appeal under subsection (24) in respect of all or part of the decision of council, but no notice of appeal is filed under that subsection and the time for filing appeals has expired,

    (a) the decision of council or the part of the decision that is not the subject of an appeal is final; and

    (b) the plan or part of the plan that was adopted and that is not the subject of an appeal comes into effect as an official plan or part of an official plan on the day after the last day for filing a notice of appeal. 1996, c. 4, s. 9; 2017, c. 23, Sched. 3, s. 6 (4).

    Legislative History

    Bill 139 replaced the portion of subsection 17(27) before clause (a), which read "If no notice of appeal is filed under subsection (24) in respect of all or part of the decision of council and the time for filing appeals has expired".

    Wood Bull Commentary

    The Bill 139 amendments to the language of subsection 17(27) limit its application to situations where someone or some public body has a right to appeal (as either the applicant or obtained during the municipal process) but does not exercise it, in which case, the official plan (or part thereof to which the right of appeal would apply) is in effect on the day after the last day of appeal.  

    Subsection 17(27) is to be compared with subsection 17(27.1) where no person or public body has a right to appeal, in which case, the official plan (or part thereof to which the right of appeal would apply) is in effect on the day after the date of adoption.

  • 17(27.1) SAME [Where No Right of Appeal] (*)

    (27.1) If no person or public body has any right of appeal under subsection (24) in respect of any part of the decision of council,

    (a) the decision of council is final; and

    (b) the plan that was adopted comes into effect as an official plan on the day after the day it was adopted.  2017, c. 23, Sched. 3, s. 6 (5)

    Legislative History

    This subsection was introduced by Bill 139.

    Wood Bull Commentary

    See Commentary under subsection 17(27). 

    Subsection 17(27.1) is intended to address two distinct situations where there is no right of appeal under subsection 17(24): 

    • where appeals are not permitted for specific types of policies: second unit policies (s.17(24.1)) and various matters largely arising from provincial plans (s.17(24.4) and 17(24.5)).

    • where no person or public body, before an official plan or municipally-initiated amendment was adopted, made oral submissions at a public meeting or written submissions to the council (s.17(24)1.).

  • 17(28) DECLARATION [Notices/No Appeal]

    17(28) A sworn declaration of an employee of the municipality or of the approval authority that notice was given as required by subsection (23) or (35) or that no notice of appeal was filed under subsection (24) or (36) within the time allowed for appeal is conclusive evidence of the facts stated in it.  1996, c. 4, s. 9.

 


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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