On October 24, 2013, the Ontario Provincial Government announced that it would review the land use planning approval system in Ontario, including the role of the OMB. This announcement also stated that the province will review the Development Charges Act. Specifically, the announcement states:
The review will also look to find ways to foster better co-operation and collaboration between municipalities, community groups, property owners and developers, so more land use planning matters can be resolved locally, instead of being referred to the Ontario Municipal Board (OMB).
This announcement comes in the context of increasing political attacks against the OMB. The OMB is charged with making decisions in complicated land use planning disputes. The result is that the Board is frequently criticized heavily for its decisions, in what are often politically volatile matters. In many of these volatile matters, regardless of the outcome, the OMB will be the subject of criticism.
The most recent challenge centred on Bill 20, a private members bill in the Legislative Assembly of Ontario given first reading on March 5, 2013. Mr. Rosario Marchese, MPP for Trinity-Spadina, introduced Bill 20, which is entitled “Respect for Municipalities Act (City of Toronto)”.
On first reading, Mr. Marchese summarized the purpose of the bill as follows:
My bill, in short, would free Toronto from the Ontario Municipal Board. The bill changes the relationship in law between the City of Toronto and the Ontario Municipal Board. Currently, under various statutes that govern land-use planning, certain municipal decisions can be appealed to the Ontario Municipal Board. Amendments eliminate those rights of appeal with respect to decisions of the City of Toronto. Amendments also eliminate a right to make certain other types of applications to the board with respect to the city. The city is authorized to establish one or more appeal bodies to hear any of these matters and to hear such other matters as the city considers appropriate.
There were numerous criticisms of Bill 20, including that Bill 20 does not compel the City of Toronto to create its own appellate body for local land use planning issues. The City of Toronto would have the discretion to create its own appellate body, but it is unclear that such an appellate body would, in fact, be created.
Bill 20 undermines the OMB, which performs an important role based upon a history of independent expertise in land use planning disputes.
A unique City of Toronto appellate body would also set the stage for potentially inconsistent practices and procedures to those of the OMB. Furthermore, this appellate body would lack the OMB’s history of independence and expertise in land use planning across the Province.
Bill 20 passed second reading on March 7, 2013, and the matter was referred to the Standing Committee on Finance and Economic Affairs. Bill 20 did not proceed any further at the Committee stage.
Bill 20 would have represented a fundamental change to the planning regime in Ontario. This change would have created a very real risk of disrupting the planning regime in Ontario. A criticism of Bill 20 was that it was not the subject of a comprehensive review of the entire planning regime to identify the potential impact and issues that would result from this proposed change to the planning regime. On the heels of Bill 20, and in implicit acknowledgement of this criticism, comes this latest review announcement from the provincial government promising a comprehensive review of the land use planning system in Ontario.
As the OMB has exclusive jurisdiction pursuant to the Expropriations Act, changes to its jurisdiction may impact all stakeholders involved with expropriation, including claimants, expropriating authority, and expert consultants. There has been no indication that the jurisdiction related to expropriation will be displaced, but any changes to the land use planning approval system will inevitably impact the analysis of the highest and best use of a property. Regardless, stakeholders involved in expropriation will monitor the province’s announcement with keen interest.