Out with the OMB, in with the LPAT

By Bob Brocklebank

In the final months of the Wynne Liberal government in Ontario, significant changes were made that could affect municipal government across the province and have an impact on traditional neighbourhoods such as the Glebe. Notably, the Ontario Municipal Board (OMB) was replaced by the Local Planning Appeal Tribunal (LPAT.)

When the city takes a decision on a land-use planning issue (questions such as changing zoning to allow new construction or dividing a lot to allow a new building to be inserted) it has been possible to seek a second opinion by appealing to the OMB. Sometimes an appeal leads to mediation – the parties talk and reach a compromise. On other occasions the issue rises to a hearing in which the different parties argue in what resembles a court and a decision is rendered by the Board.

Of course someone was bound to be disappointed whenever the OMB made a decision. Against this background it is not surprising that there were many comments submitted when the former provincial government announced a review of the OMB in 2016.

THE OMB

The OMB had been around for a long time. It first came into existence in 1906 as the Ontario Railway and Municipal Board. At first much of its work involved regulation of street railways but then its scope of work expanded. Indeed its powers became so broad that a major academic study of the OMB had the title “A Law Unto Itself”.

But eventually decisions do have to be taken. What needed to be fixed?

Many considered that OMB decisions took too long and the process was too expensive. Troops of lawyers, planners and other experts would appear before the Board to testify. Of course the provincial taxpayer footed the bill for the OMB member hearing the case, but the cost for the expert testimony presented by the various parties was not, and could be extremely costly.

A more fundamental problem was that difficult decisions, which should have been taken at the municipal level, were passed on to the OMB. A decision that had been discussed for a few minutes before a municipal council might lead to weeks of argument before a hearing of the OMB. Each case was heard de novo, starting anew, so that every pertinent matter had to be explained from the beginning to the board, unlike most appeals to a higher authority in which the appellant points out some specific error in the previous decision.

One twist, which may be a problem particular to Ottawa, is that for each issue, city staff deliver to Council (via the Standing Committee on Planning) a report with a single recommendation. Council is faced with a “take it or leave it” choice. If Council rejects the staff recommendation, the members of city staff whose names appear on the report would be called to testify before the OMB to defend the report’s position and oppose the position adopted by Council. Outside experts would then be needed to testify in support of the Council decision. Among other considerations, this has meant that much of the discussion by elected officials was not about the merits of the matter, but rather about the cost of defending a position before the OMB.

And at the end, having reconsidered the matter in its entirety, the OMB would make a decision, pronouncing its view to be “good planning.”

THE LPAT

Now we have the OMB replacement, the Local Planning Appeal Tribunal. Instead of reconsidering a matter in its entirety, the LPAT is to look for consistency with provincial and municipal policies and plans. If a decision does not conform, the matter is to be sent back to the municipality for reconsideration. Only if a municipality cannot bring the matter into conformity will decision-making pass to LPAT. It is hoped by many that this change will remove local decisions from Queens Park appointees and restore responsibility to elected officials at the municipal level.

Under the new LPAT process the cost of an appeal is expected to be reduced. Most of the argumentation will be through submission of documents rather than oral testimony. When oral hearings occur they are to be limited in time.

Another innovation is the establishment of the Local Planning Appeal Support Centre (LPASC), a unit intended to level the playing field by providing support to weaker parties such as citizens’ groups or individuals who are about to appeal.

It is too early to know whether LPAT or LPASC will be significant improvements. Time will tell.

Meanwhile we have had a change of government in Ontario and the new government may have different views. Prior to the Legislature rising for the Christmas break, a bill was introduced that would allow municipalities to exempt some business investment projects from appeal to LPAT. Debate about that idea and the provincial budget (which would determine funding for the support centre) will provide insight into the government’s thinking.

Bob Brocklebank is a former chair of the Glebe Report board and Glebe Community Association liaison to the Federation of Citizens’ Associations.

Note: This opinion piece touches on only a small part of the legislation known as the “Building Better Communities and Conserving Watersheds Act, 2017”.