they count at the OMB or the new Tribunal?

One of the frequent and logical concerns of residents about development on Bloor Street is the possibility of OMB decisions creating precedents that would pave the way for more such developments being allowed by the OMB. 

Certainly such decisions would form a precedent in the minds of residents and developers, but what about where it really counts .... at the OMB?   Is there a real danger of an OMB decision being used as a precedent for influencing similar future OMB hearings?   This is a major question whose answer is, thankfully, "no".

The OMB, because it is an administrative, quasi-judicial tribunal and not a judicial court of law, is not bound by previous decisions made by its Board. This is reflected in the following two quotes from the OMB.

"It is submitted by some party to almost every hearing before this Board, that its
decision will create an inappropriate precedent. On this issue the Board must note that one panel of this Board is not bound by the decision of another panel; each case which comes before the Board has a unique set of facts; each case must be decided on its merits, taking into account the policy regime in effect at the time of the application.
  (February 6, 2008, CASE NO(S). PL070056)

Notwithstanding that there are planning proposals which are seen to establish “good precedence”, both municipal planning authorities and the Board are obligated to assess the planning merits of each application on an individual basis."  (September 9, 2015 CASE NO(S). PL150058)

Imagine if precedence forced future OMB decisions.   As the trend has been the OMB deciding in favour of developers, this would be disastrous for good community planning.  As stated by the Regional Planning Commissioners of Ontario:

"A decision related to a particular building or site should not bind future decisions, even where the context is similar. If OMB decisions were bound by precedent, the accumulation of OMB decisions would soon entirely supersede municipally-led comprehensive planning. "
(RPCO Research Report, Reforming the Ontario Municipal Board: Five Actions for Change, FINAL REPORT | August 31, 2016

So thankfully residents do not have to worry about this issue of precedence when it comes to OMB decisions about proposed developments in our Kingsway-Sunnylea area.

And Now for Some Changes

The Ontario government launched a review of the scope and effectiveness of the Ontario Municipal Board (OMB) in June 2016.  The result was the introduction of Bill 139 - the Building Better Communities and Conserving Watersheds Act, 2017.  Bill 139 received Royal Assent on December 12, 2017 and makes transformative changes to Ontario's land use planning and appeal system.  These changes include:

  • creating the Local Planning Appeal Tribunal (LPAT) to replace the Ontario Municipal Board
  • establishing a Local Planning Appeal Support Centre to provide legal and planning help to Ontarians who want to participate in the tribunal processes
  • supporting clearer and more timely decision making
  • reducing the ability of the tribunal to overturn municipal decisions that adhere to the municipal official plans, provincial plans, and the Provincial Policy Statement
  • giving municipal elected officials greater control over local planning, resulting in fewer decisions being appealed

These changes will come into force on a date to be named by proclamation, expected in the spring of 2018.  A new regulation under the Planning Act is proposed to ensure that there are rules dealing with the transition between the old system and the new system.

Because of the major changes that are taking place to overhaul the OMB, many developers rushed their applications/appeals for their projects in order to have them processed by the OMB rather than the LPAT.  Any appeals filed to the OMB before December 12, 2017 will be processed by the OMB. If a complete application was submitted to the OMB before December 12, 2017 and an appeal is filed prior to proclamation (spring 2018) then the file will still be processed by the OMB. All other appeals will be processed by the LPAT.  These proposed transitional rules are still subject to change and are not set in stone. 

Let's hope that the processes of this new system also continue the trend of non-precedence. A search through the wording of the official Bill 139 for the word " precedence" or "precedent" yields zero results.  

So far so good.

Steve Rankine

KPRI Director - Membership