The Wood Bull Guides

Section 34, Subsections (20) to (34) [Zoning By-law Amendment Appeal Process]

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  • 34(20) WHEN GIVING OF NOTICE DEEMED COMPLETED [Notice of Decision]

    (20) For the purposes of subsections (11.0.3) and (19), the giving of written notice shall be deemed to be completed,

    (a) where notice is given by publication in a newspaper, on the day that such publication occurs;

    (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 personal service, on the day that the serving of all required notices is completed;

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

    (d) 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.  R.S.O. 1990, c. P.13, s. 34 (20); 1994, c. 23, s. 21 (9); 2015, c. 26, s. 26 (10).

  • 34(20.1) USE OF DISPUTE RESOLUTION TECHNIQUES

    (20.1) When a notice of appeal is filed under subsection (19), the council may use mediation, conciliation or other dispute resolution techniques to attempt to resolve the dispute.  2015, c. 26, s. 26 (11).

  • 34(20.2) NOTICE AND INVITATION [For Dispute Resolution]

    (20.2) If the council decides to act under subsection (20.1),

    (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) the applicant, if there is an applicant who is not an appellant, and

    (iii) any other persons or public bodies that the council considers appropriate.  2015, c. 26, s. 26 (11).

  • 34(20.3) EXTENSION OF TIME [To Forward Appeal Record, Dispute Resolution]

    (20.3) When the council gives a notice under clause (20.2) (a), the 15-day period mentioned in clause (23) (b) and subsections (23.2) and (23.3) is extended to 75 days.  2015, c. 26, s. 26 (11).

  • 34(20.4) PARTICIPATION VOLUNTARY [Dispute Resolution]

    (20.4) Participation in the dispute resolution process by the persons and public bodies who receive invitations under clause (20.2) (b) is voluntary.  2015, c. 26, s. 26 (11).

  • 34(21) WHEN BY-LAW DEEMED TO HAVE COME INTO FORCE

    (21) When no notice of appeal is filed under subsection (19), the by-law shall be deemed to have come into force on the day it was passed except that where the by-law is passed under circumstances mentioned in subsection 24 (2) the by-law shall not be deemed to have come into force on the day it was passed until the amendment to the official plan comes into effect.  R.S.O. 1990, c. P.13, s. 34 (21); 1994, c. 23, s. 21 (10); 1996, c. 4, s. 20 (8).

    Wood Bull Commentary

    With the introduction of zoning appeals by the completely revised Planning Act of 1983, subsection 34(19) [now, in slightly revised form, s.34(21)] was introduced which provides that a zoning by-law comes into force on the date of passing in the absence of an appeal. 

    Note that in the Planning Act, the legal status of zoning by-laws is addressed in terms of the by-law being “in force” whereas the legal status of official plans is addressed in terms of the official plan being “in effect”.

    As to when an appealed by-law comes into force, see Commentary under s.34(30).

  • 34(22) AFFIDAVIT RE NO APPEAL, ETC.

    (22) An affidavit or declaration of an employee of the municipality that notice was given as required by subsection (18) or that no notice of appeal was filed under subsection (19) within the time allowed for appeal shall be conclusive evidence of the facts stated therein.  R.S.O. 1990, c. P.13, s. 34 (22); 1996, c. 4, s. 20 (9).

  • 34(23) RECORD [To Tribunal]

    (23) The clerk of a municipality who receives a notice of appeal under subsection (11) or (19) shall ensure that,

    (a)  a record that includes the prescribed information and material is compiled;

    (b)  the notice of appeal, record and fee are forwarded to the Tribunal,

    (i) within 15 days after the last day for filing a notice of appeal under subsection (11.0.3) or (19), as the case may be, or

    (ii) within 15 days after a notice of appeal is filed under subsection (11) with respect to the failure to make a decision; and

    (c)  such other information or material as the Tribunal may require in respect of the appeal is forwarded to the Tribunal.  2006, c. 23, s. 15 (11); 2015, c. 26, s. 26 (12); 2017, c. 23, Sched. 3, s. 10 (8).

    Related Regulations

    O. Reg. 545/06: ZONING BY-LAWS, HOLDING BY-LAWS AND INTERIM CONTROL BY-LAWS, s.7 re Record compiled by clerk.

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.23 Appeal re amendment to zoning by-law where application refused; s.24 Appeal re amendment to zoning by-law where failure to make decision on application; s.25 Appeal re passing of zoning by-law, etc.

  • 34(23.1) WITHDRAWAL OF APPEALS

    (23.1) If all appeals to the Tribunal under subsection (19) are withdrawn and the time for appealing has expired, the Tribunal shall notify the clerk of the municipality and the decision of the council is final and binding.  1993, c. 26, s. 53 (3); 2017, c. 23, Sched. 5, s. 93 (3).

  • 34(23.2) EXCEPTION

    (23.2) Despite clause (23) (b), if all appeals under subsection (19) are withdrawn within 15 days after the last day for filing a notice of appeal, the municipality is not required to forward the materials described under clauses (23) (b) and (c) to the Tribunal.  1999, c. 12, Sched. M, s. 25 (2); 2017, c. 23, Sched. 5, s. 93 (4).

  • 34(23.3) DECISION FINAL

    (23.3) If all appeals to the Tribunal under subsection (19) are withdrawn within 15 days after the last day for filing a notice of appeal, the decision of the council is final and binding.  1999, c. 12, Sched. M, s. 25 (2); 2017, c. 23, Sched. 5, s. 93 (5).

  • 34(24) HEARING AND NOTICE THEREOF

    (24) On an appeal to the Tribunal, the Tribunal shall hold a hearing of which notice shall be given to such persons or bodies and in such manner as the Tribunal may determine.  R.S.O. 1990, c. P.13, s. 34 (24); 2017, c. 23, Sched. 5, s. 93 (6).

  • 34(24.1) RESTRICTION RE ADDING PARTIES

    (24.1) Despite subsection (24), in the case of an appeal under subsection (11) that relates to all or part of an application for an amendment to a by-law that is refused, or in the case of an appeal under subsection (19), only the following may be added as parties:

    1. A person or public body who satisfies one of the conditions set out in subsection (24.2).

    2. The Minister.  2006, c. 23, s. 15 (12).

  • 34(24.2) SAME

    (24.2) The conditions mentioned in paragraph 1 of subsection (24.1) are:

    1. Before the by-law was passed, the person or public body made oral submissions at a public meeting or written submissions to the council.

    2. The Tribunal is of the opinion that there are reasonable grounds to add the person or public body as a party.  2006, c. 23, s. 15 (12); 2017, c. 23, Sched. 5, s. 80.

  • 34(24.3) NEW INFORMATION AND MATERIAL AT HEARING

    (24.3) This subsection applies if information and material that is presented at the hearing of an appeal described in subsection (24.1) was not provided to the municipality before the council made the decision that is the subject of the appeal. 2019, c. 9, Sched. 12, s. 6 (6).

  • 34(24.4) SAME

    (24.4) When subsection (24.3) applies, the Tribunal may, on its own initiative or on a motion by the municipality or any party, consider whether the information and material could have materially affected the council's decision and, if the Tribunal determines that it could have done so, it shall not be admitted into evidence until subsection (24.5) has been compiled with and the prescribed time period has elapsed. 2019, c. 9, Sched. 12, s. 6 (6).

  • 34(24.5) NOTICE TO COUNCIL

    (24.5) The Tribunal shall notify the council that it is being given an opportunity to,

    (a) reconsider its decision in light of the information and material; and

    (b) make a written recommendation to the Tribunal. 2019, c. 9, Sched. 12, s. 6 (6).

  • 34(24.6) COUNCIL'S RECOMMENDATIONS

    (24.6) The Tribunal shall have regard to the council's recommendation if it is received within the time period referred to in subsection (24.4), and may, but is not required to, do so if it is received afterwards. 2019, c. 9, Sched. 12, s. 6 (6).

  • 34(24.7) CONFLICT WITH SPPA [Re Adding Parties]

    (24.7) Subsections (24.1) to (24.6) apply despite the Statutory Powers Procedure Act. 2019, c. 9, Sched. 12, s. 6 (7).

    Related Sections

    Parallel subsections: 

    • official plans and official plan amendments (s.17(44.7))

    Related Statutes Section 5 of the Statutory Powers Procedures Act Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.23 Appeal re amendment to zoning by-law where application refused; s.24 Appeal re amendment to zoning by-law where failure to make decision on application; s.25 Appeal re passing of zoning by-law, etc.

  • 34(25) DISMISSAL WITHOUT HEARING

    (25)  Despite the Statutory Powers Procedure Act and subsection (24), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if any of the following apply:

    1.  The Tribunal is of the opinion that:

    i.  the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal,

    ii.  the appeal is not made in good faith or is frivolous or vexatious,

    iii. the appeal is made only for the purpose of delay, or

    iv. the appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process.

    2.  The appellant has not provided written reasons for the appeal.

    3.  The appellant intends to argue a matter mentioned in subsection (19.0.1) but has not provided the explanations required by that subsection.

    4.  The appellant has not paid the fee charged under the Local Planning Appeal Tribunal Act, 2017.

    5.  The appellant has not responded to a request by the Tribunal for further information within the time specified by the Tribunal. 2019, c. 9, Sched. 12, s. 6 (8).

    Related Sections

    An explanation of the grounds of appeal is required to be set out in a notice of appeal:

    Parallel subsections: 

    • official plans and official plan amendments (s.17(45))

    Related Statutes

    Section 4.6 of the Statutory Powers Procedure Act allows a tribunal to dismiss a proceeding without a hearing and prescribes notice and other requirements that must be met before a proceeding can be so dismissed.

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.23 Appeal re amendment to zoning by-law where application refused; s.24 Appeal re amendment to zoning by-law where failure to make decision on application; s.25 Appeal re passing of zoning by-law, etc.

    CaseLaw

    Pizzo v Thorold (City), LPAT (10 September 2018) provides a Tribunal order dismissing the appeal without a hearing on the basis of the failure of the appellant to provide an explanation for the appeal in accordance with the legislative requirements set out in subsection 34 (19.0.2) of the Planning Act.

    In Gravelle v. Stone Mills (Town), LPAT (13 November 2018), the Tribunal considers a motion brought by the municipality challenging the validity of an appeal.  The Tribunal determined the following with respect to the explanation required by s.34(11.0.0.0.4):

    [36] As the Tribunal, at the preliminary screening stage, will only be working from the Appellant’s Notice of Appeal, the Tribunal’s focus is essentially confined to seeking evidence of the required explanations and, except perhaps where it is patently lacking, not the sufficiency of the explanations. 

    [37] However, given that the Tribunal’s authority for preliminary screening is derived from s. 34(25), it is the statutory standard that a “valid” appeal must meet both of the tests stipulated in the two clauses of s. 34(25)1 of the Act.

    [62] The Tribunal will not elevate form over substance.  ... there are no magic words which delineate an acceptable explanation.  The exercise involves a judgment which, due to its early stage engagement, will necessarily often proceed on more limited background and therefore call for a perhaps less critical analysis, on the premise that the statutorily compliant superficial assertion should be afforded the subsequent opportunity to be more fully explained and borne out with the benefit of the more expansive evidence and analysis which forms part of the full hearing process.

    [63] This does not mean to say that an appellant will meet the statutory tests merely by mimicking the language of the section and making the bald declarations of consistency and conformity required.  These assertions must be connected, in the Notice of Appeal, to facts that will take the Tribunal to a reasonable conclusion that there are live issues of consistency and conformity in the appeal.

    [64] ... Sufficiency, save where there is a patent absence of materiality, will more generally relate to the more deliberative reaches of the appeal hearing process.  In making this observation, the Tribunal does not exclude considerations of sufficiency factoring into the validity review stage but will not generally be closely testing the quality of the assertions in the Notice of Appeal.

    [65] On the point of sufficiency, in the instance of a motion to dismiss, such as this, where further documents and evidence are filed, the Tribunal is entitled to review that evidence to shed light on the question of the adequacy of the explanations.  With that additional filed material in this instance, the Tribunal was more clearly able to discern the substance of the explanation provided in the Notice of Appeal and confirm the initial validity screening.

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