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Section 17, Subsections 17(36) to (39) [Appeal Rights / Decision Final: Official Plan and Amendments Not Exempt from Approval]

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

Bill 139 introduced significant limitations on the basis for appeals of approval authority's decisions to approve, approve with modifications, or refuse to approve official plans and official plan amendments.  

In keeping with previous amendments to the Planning Act that precluded a right to appeal (with the exception of the Minister in some cases) in regard to specific subject matters, Bill 139:

• precludes, except in a limited manner, appeal rights with respect to protected major transit station area policies (s.17(36.1.4));

• precludes any right of appeal of an official plan where the approval authority is the Minister (s.17(36.5)/s.21(3));

• precludes any right of appeal of a section 26 official plan amendment where the approval authority is the Minister  (s.17(36.5)/21(3)).

Bill 139 also limits the possible grounds of all rights of appeal to considerations of policy implementation, not good planning per se.  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.

Bill 139 also clarifies when a decision of an approval authority regarding 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(38.1)); or (ii) there was a potential right of appeal which was not exercised (s.17(38)). 


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  • 17(36) APPEAL TO L.P.A.T. (*)

    17(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 Tribunal 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.  2006, c. 23, s. 9 (6); 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(36) 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(36) of the Planning 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(36.0.1) BASIS FOR APPEAL (*)

    17(36.0.1) An appeal under subsection (36) 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 (7).

    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(37). Failure to include this explanation will result in the appeal being dismissed without a hearing (s.17(45)1.). See Rules 26.05 to 26.09 of the Tribunal’s Rules of Practice and Procedure, available on the Environment & Land Tribunals Ontario’s website.

    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:

    Wood Bull Commentary

    New subsection 17(36.0.1) changes and limits the basis for appeals in regard to decisions of approval authorities (such as upper-tier municipalities or the Minister) to approve, approve with modifications, or refuse to approve adopted official plans and official plan amendments.  

    Prior to Bill 139, the subject matter of a valid appeal was not restricted by statute.  Subsection 17(37)(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 the Bill 139 introduction of subsection 17(36.0.1), appeals can only be made on the basis that the part of the approval authority's 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.

    The ground related to conformity with an upper-tier plan is not relevant where the amendment being requested is related to a single-tier municipality.

    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 approved official plan or amendment, that is, its consistency with the principles of good planning, beyond the three grounds set out in this subsection. 

  • 17(36.1) NO APPEAL RE SECOND UNIT POLICIES

    17(36.1) Despite subsection (36), 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 (2).

  • 17(36.1.1) EXCEPTION RE MINISTER

    17(36.1.1) Subsection (36.1) does not apply to an appeal by the Minister.  2016, c. 25, Sched. 4, s. 2 (3).

  • 17(36.1.2) 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 (4))

    17(36.1.2) Despite subsection (36), 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 (4). 

  • 17(36.1.3) 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 (4))

    17(36.1.3) Subsection (36.1.2) does not apply to an appeal by the Minister.  2016, c. 25, Sched. 4, s. 2 (4).

  • 17(36.1.4) NO APPEAL RE PROTECTED TRANSIT STATION POLICIES (*)

    17(36.1.4) Despite subsection (36), there is no appeal in respect of the following:

    1. Policies that identify a protected major transit station area in accordance with subsection 16 (15) or (16), including any changes to those policies.

    2. Policies described in clauses 16 (15) (a), (b) or (c) or (16) (a) or (b) with respect to a protected major transit station area that is identified in accordance with subsection 16 (15) or (16).

    3. Policies in a lower-tier municipality’s official plan that are described in subclause 16 (16) (b) (i) or (ii).

    4. Policies that identify the maximum densities that are authorized with respect to buildings and structures on lands in a protected major transit station area that is identified in accordance with subsection 16 (15).

    5. Policies that identify the maximum densities that are authorized with respect to buildings and structures on lands in a protected major transit station area that is identified in accordance with subsection 16 (16).

    6. Policies that identify the minimum or maximum heights that are authorized with respect to buildings and structures on lands in a protected major transit station area that is identified in accordance with subsection 16 (15).

    7. Policies that identify the minimum or maximum heights that are authorized with respect to buildings and structures on lands in a protected major transit station area that is identified in accordance with subsection 16 (16).  2017, c. 23, Sched. 3, s. 6 (8)

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    Protected major transit station area policies are addressed in subsection 16(15) for single-tier municipalities' official plans, subsection 16(16) for upper-tier municipalities' official plans, and subsection 16(16)(b) for lower-tier municipalities' official plans (s.16(15) and (16)).

    Wood Bull Commentary

    Subject to the limitations and exceptions identified in subsections 17(36.1.5), (36.1.6), and (36.1.7), this subsection prohibits appeals of protected major transit station area policies.  In addition to the required major transit station area policies addressed in subsections 16(15) and 16(16) (paragraphs 1, 2 and 3), there is no appeal of policies related to maximum densities (paragraphs 4 and 5) and maximum and minimum heights (paragraphs 6 and 7) within a protected major transit station area.

  • 17(36.1.5) LIMITATION [On Appeal of Protected Major Transit Station Area Policies] (*)

    17(36.1.5) Paragraphs 3, 5 and 7 of subsection (36.1.4) apply only if,

    (a) the plan that includes the policies referred to in those paragraphs also includes all of the policies described in subclauses 16 (16) (b) (i) and (ii) for the relevant protected major transit station area; or

    (b) the lower-tier municipality’s official plan in effect at the relevant time contains all of the policies described in subclauses 16 (16) (b) (i) and (ii) for the relevant protected major transit station area.  2017, c. 23, Sched. 3, s. 6 (8).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    If an upper-tier municipality identifies a protected major transit station area, the upper tier official plan must include policies that require the relevant lower-tier municipality's official plan to (i) identify the uses of land and of buildings or structures, and (ii) the minimum densities for buildings and structures in the protected major transit station area (s.16(16)(b)(i) and (ii)).

    Paragraph 3 of subsection 17(36.1.4) relates to a lower-tier municipality’s official plan policies in regard to the above noted required policies set out in subclauses 16(16)(b)(i) and (ii).

    Paragraphs 5 and 7 of subsection 17(36.1.4) relate to official plan policies that identify the maximum densities and minimum/maximum heights in a protected major transit station area, which are not required by subclauses 16(16)(b)(i) and (ii).

    Wood Bull Commentary

    The restriction on appeal rights in paragraphs 3, 4, and 5 of subsection 17(36.1.4) applies only if the subject official plan or amendment, or the existing official plan of the lower-tier municipality includes all of the required policies described in subclauses 16(16)(b)(i) and (ii).

  • 17(36.1.6) EXCEPTION [To Appeal Maximum Height] (*)

    17(36.1.6) Despite paragraphs 6 and 7 of subsection (36.1.4), there is an appeal in circumstances where the maximum height that is authorized with respect to a building or structure on a particular parcel of land would result in the building or structure not satisfying the minimum density that is authorized in respect of that parcel.  2017, c. 23, Sched. 3, s. 6 (8).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    For protected major transit station areas, minimum densities for buildings and structures are required to be identified in official plans of single-tier municipalities (s.16(15)(c))) and lower-tier municipalities (s.16(16)(b)(ii)).

    Paragraphs 6 and 7 of subsection 17(36.1.4) relate to official plan policies that identify the minimum/maximum heights in a protected major transit station area.  These policies are not required by section 16 to be identified for major transit station areas.

    Parallel subsection:

    • exception to the appeal restriction for parts of zoning by-laws pertaining to protected major transit station areas (s.34(19.7))

    Wood Bull Commentary

    This subsection allows for appeals where there is an inconsistency between a maximum height policy and a required minimum density policy for a protected major transit station area.   This inconsistency in and of itself may not meet the basis for appeal required by subsection 17(36.0.1), as the required minimum densities for protected major transit station areas are not set out in provincial policies and are not required to be set out in upper-tier municipal official plans.  

    In the context of the test in subsection 17(36.0.1), which is carried forward in subsections 17(37), 17(45), 17(49.3), it does not appear that an appeal right in subsection 17(36.1.6) overrides the basis of appeal set out in subsection 17(36.0.1).

  • 17(36.1.7) EXCEPTION RE MINISTER [To Appeal Protected Major Transit Station Area Policies] (*)

    17(36.1.7) Subsection (36.1.4) does not apply to an appeal by the Minister.  2017, c. 23, Sched. 3, s. 6 (8).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    Parallel subsection:

    • exception for Minister to appeal zoning by-laws pertaining to protected major transit station areas (s.34(19.8))

    Wood Bull Commentary

    Subsection 17(36.1.7) permits the Minister to appeal the decision by an approval authority (in most cases, an upper-tier municipality) in regard to protected major transit stations area policies.

    The Minister does not need this appeal power in regard to single-tier municipalities since the Minister is the approval authority for single-tier official plan policies in regard to protected major transit station area policies adopted pursuant to subsection 16(15), by virtue of subsection 16(18). 

  • 17(36.2) NO GLOBAL APPEAL [New Official Plan] (*)

    17(36.2) Despite subsection (36), in the case of a new official plan that is approved by an approval authority other than the Minister, there is no appeal in respect of all of the decision of the approval authority to approve all of the plan, with or without modifications.  2015, c. 26, s. 18 (12); 2017, c. 23, Sched. 3, s. 6 (9).

    Legislative History

    Bill 139 amended this subsection, which previously read:

    Despite subsection (36), in the case of a new official plan there is no appeal in respect of all of the decision of the approval authority to approve all of the plan, with or without modifications.

    Bill 139 added clarification that there is no global appeal of an official plan "that is approved by an approval authority other than the Minister".

    Related Sections

    Parallel subsection: Official Plans exempt from approval (s.17(24.2))

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.15(1):

    Official plan, amendment or repeal, notice given under s. 17 (35) of the Act 

    15. (1) An official plan, an amendment to it or a repeal of it shall be continued and disposed of in accordance with subsection 17 (36.2) of the Act as it read on April 2, 2018, if the giving of notice under subsection 17 (35) of the Act is completed on or after July 1, 2016 and before April 3, 2018. O. Reg. 67/18, s. 4.

    Wood Bull Commentary

    Subsection 17(36.2) is directed to "new" Plans.  There is no guidance in the Act as to what constitutes a "new" Plan.  In regard to such "new" Plans, it is intended to preclude "sloppy"  appeals which are not focused on the real concerns of the appellant.  In practice, these kinds of appeals are objectionable because they preclude the coming into effect of those parts of the plan to which there are no real objections.  

    The Bill 139 amendment to subsection 17(36.2) was necessary to accommodate new subsection 17(36.5) added by Bill 139. It provides that there are no appeals where the Minister is the approval authority; however, this broad appeal prohibition is limited as it affects only amendments adopted in accordance with section 26  by virtue of subsection 21(3).   

    The Bill 139 transition regulation takes into consideration the effect of subsection 17(36.5) and the distinction that is made in regard to the Minister as an approval authority by providing that for notices of decision issued by the Minister under subsection 17(35) between July 1, 2016 (the date former 17(36.2) came into effect) and April 2, 2018 for the approval of new official plans, there is no global appeal.  

  • 17(36.3) SAME

    17(36.3) For greater certainty, subsection (36.2) does not prevent an appeal relating to a part of the decision or a part of the plan, as authorized by subsection (36).  2015, c. 26, s. 18 (12).

  • 17(36.4) NO APPEAL RE CERTAIN MATTERS [Mentioned in s.17(24.5)]

    17(36.4) Despite subsection (36), 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 (12).

  • 17(36.5) NO APPEAL RE DECISION BY MINISTER (*)

    17(36.5) Despite subsection (36), there is no appeal in respect of a decision of the approval authority under subsection (34), if the approval authority is the Minister.  2017, c. 23, Sched. 3, s. 6 (10).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    Subsection 21(3) provides that for amendments, this subsection only applies to official plan updates adopted in accordance with section 26 (revisions in regard to provincial plans, matters of provincial interest and policy statements).

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg 67/18): TRANSITIONAL MATTERS — GENERAL, s.15(2):

    Official plan, amendment or repeal, notice given under s. 17 (35) of the Act 

    (2) An official plan, an amendment to it or a repeal of it shall be continued and disposed of as if subsection 17 (36.5) of the Act was not in force, if the giving of notice under subsection 17 (35) of the Act is completed before April 3, 2018. O. Reg. 67/18, s. 4.

  • 17(37) CONTENTS OF NOTICE [Of Appeal] (*)

    17(37) The notice of appeal under subsection (36) must,

    (a) set out the specific part or parts of the plan to which the notice of appeal 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 (13); 2017, c. 23, Sched. 3, s. 6 (11); 2017, c. 23, Sched. 5, s. 81 .

    Legislative History

    Bill 139 amended this subsection by replacing clause (b), which read “set out the reasons for the appeal", with the more limited grounds of appeal; and by replacing the words “the fee prescribed under the Ontario Municipal Board Act” with the words “the fee charged under the Local Planning Appeal Tribunal Act, 2017” in clause (c).

    Related Sections

    Subsection 17(36.0.1) establishes the grounds of appeal which are to be addressed in the Notice of Appeal.  

    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 approved official plan or amendment, or the refusal to approve 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(37) 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)).    

    Therefore, the explanation required by subsection 37(37) is very important as it will form a key consideration when the grounds are considered by the Tribunal. 

    See Commentary on subsection 17(36.0.1) regarding the implications of the grounds of appeal being limited by Bill 139 from the unlimited grounds previously.

    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(37.1) REPEALED (*)

    17(37.1) Repealed: 2017, c. 23, Sched. 3, s. 6 (12).

    Legislative History

    Bill 139 repealed subsection 17(37.1):

    Contents of Notice

    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.

    Wood Bull Commentary

    Bill 139 repealed subsection 17(37.1) in its entirety.  The basis for appeals set out in subsection 17(36.0.1) and the notice requirements set out in subsection 17(37) render 17(37.1) of the pre-Bill 139 Planning Act largely moot.

  • 17(37.2) USE OF DISPUTE RESOLUTION TECHNIQUES [Following Appeal]

    17(37.2) When a notice of appeal is filed under subsection (36), the approval authority may use mediation, conciliation or other dispute resolution techniques to attempt to resolve the dispute.  2015, c. 26, s. 18 (14).

  • 17(37.3) NOTICE AND INVITATION [Dispute Resolution]

    17(37.3) If the approval authority decides to act under subsection (37.2),

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

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

    (i) as many of the appellants as the approval authority 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 municipality that adopted the plan, and

    (v) any other persons or public bodies that the approval authority considers appropriate.  2015, c. 26, s. 18 (14).

  • 17(37.4) EXTENSION OF TIME [To Forward Appeal Record, Dispute Resolution]

    17(37.4) When the approval authority gives a notice under clause (37.3) (a), the 15-day period mentioned in clause (42) (b) and subsections (42.1) and (42.2) is extended to 75 days.  2015, c. 26, s. 18 (14).

  • 17(37.5) PARTICIPATION VOLUNTARY [Dispute Resolution]

    17(37.5) Participation in the dispute resolution process by the persons and public bodies who receive invitations under clause (37.3) (b) is voluntary.  2015, c. 26, s. 18 (14).

 


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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