After nearly 15 years in government, the Liberals are close to delivering on a promise they first made in 2003: to substantially weaken the power the Ontario Municipal Board has over the province’s towns and cities. The OMB has historically had the power to review, well, nearly any decision made by a city council, but it’s most frequently been accused of overriding land-use decisions in ways that favour property developers.
Bill 139, the Building Better Communities and Preserving Watersheds Act, dramatically reduces the ability of the OMB to overrule municipalities’ land-use decisions, and gives it a new name for good measure: the Local Planning Appeal Tribunal (LPAT). In cases when the new, weaker body still finds that a city has broken provincial planning rules, the LPAT can’t impose its own solution — it has to send the matter back to the city for a second kick at the can. If the city still doesn’t make a decision, or makes a decision that a developer thinks breaks provincial planning rules, the LPAT can then hear a second appeal and potentially impose its own decision.
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None of this is familiar, because it isn’t how the province has ever handled these kinds of files before. And it’s already causing some headaches: the Toronto Star reported last week that developers are rushing to file their appeals before the new rules become law.
Toronto had asked, when Bill 139 was at committee, to have the new rules made retroactive to when the bill was first introduced in May. The province has not granted that request. As written, Bill 139 gives the government the power to make transition rules for any applications that are filed between when the bill gets Royal Assent (which hasn’t happened yet) and when it formally comes into force (which may be early in 2018).
Finance Minister Charles Sousa, who has emphasized the need to get more homes built in the GTA to combat the affordability crisis there, doesn’t think the rush for the fire exits is a sign that developers are worried the new system will make it harder to build homes. Instead, he suggests it’s a sign the industry is trying to bring more homes on the market quickly.
“We’re all trying to expedite the addition of new supply,” Sousa told TVO.org last week at Queen’s Park. “Everyone’s going to find their way. Developers want supply, the market is looking for new supply, the municipalities themselves are saying they want to promote new supply, too.”
Minister of Housing Peter Milczyn says he believes developers are simply reacting to the uncertainty inherent in any major legal shift — he expects things will settle down once the government passes the legislation and publishes new regulations.
“I know from my municipal experience, whenever something like this happens, the lawyers all jump in early to cover themselves,” says Milczyn, who was a Toronto City Councillor from 2000 to 2014, and a councillor in the prior City of Etobicoke before that. “I imagine a lot of this will get worked out through the normal consultation process.”
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Even if the legislation passes (it’s almost certain to) and the rules around transitional cases are clearly spelled out (that’s less certain), actually getting the new tribunal up and running will be a challenging and time-consuming process. For their part, neither the Tories nor the NDP are currently proposing to undo the government’s changes.
But when the tribunal is up and running, the government (or the next government) will almost certainly find its problems have just begun. Because developers have raised numerous objections to the new rules, the possibility of a legal challenge halting the work of the new tribunal is very real.
And developers aren’t on their own in this. They’ve got an interesting ally: the Canadian Environmental Law Association.
“There’s the perception out there that the OMB gives the green light to any development under appeal. I would say, in my own 30 years of experience, that’s not always the case,” says Richard Lindgren, counsel with CELA. In his career, he’s represented groups opposing quarries, landfills, and sprawling new housing developments on sensitive land. He’s concerned that Bill 139 will actually make those kinds of appeals more difficult.
“Having the OMB as a independent specialized tribunal is an important safety valve in the system,” he told TVO.org earlier this fall. “Once that safety valve is effectively undermined by Bill 139, I think there’s some concern that some municipalities will go to town, so to speak, and approve developments that otherwise shouldn’t be, and it’s going to be difficult to appeal those to this new LPAT.”
Lindgren and CELA released a 30-page submission to the government recommending that the government withdraw Bill 139 and reconsider some of its most basic elements. Obviously, as the bill is now nearing the legislative finish line, the government opted not to. CELA, the Ontario Home Builders’ Association, and other development and environment groups co-signed a letter stating that Bill 139 takes “procedural fairness and natural justice” out of the planning system. That could be a signal that a court challenge to Bill 139 is coming: the province has broad powers to shape the planning system as it sees fit, but procedural fairness and natural justice are constitutional protections the government can’t circumvent.
Some environmentalists, and numerous municipal councils, celebrated when the Liberals announced they were defanging the OMB. But it seems those cheers were at best premature, and at worst, wrong-headed. Even after the bill clears the last hurdle at Queen’s Park, it will be a while before anyone knows whether it’ll cross the finish line.