Recently, there has been renewed interest in new powers given to municipalities under changes to the Planning Act and the City of Toronto Act which came into effect as of January 1, 2007. Currently, all appeals of decisions from local Committees of Adjustment are heard by the Ontario Municipal Board, a provincially-appointed, provincially-funded planning appeals tribunal. Under the legislative changes, a municipality is entitled to appoint and fund its own appeal tribunal.
Like those in many other municipalities, City of Toronto Councillors have often railed against the fact that a provincially-appointed body can overturn local planning decisions. While the matter of appointing its own appeal tribunal was studied by the City of Toronto early in 2007, at that time the idea was abandoned due to the very significant cost involved. Indeed, this cost is considered by most municipalities to be just another means by which the Province can download to local municipalities, costs that were previously paid for by the Province.
Nonetheless, in order to respond to citizen pressure to "do something", a number of City Councillors have recently seized upon the idea of creating the City’s own planning appeal tribunal as the "first step" in the elimination of the Ontario Municipal Board. Many Councillors have touted such a move as enabling "made in Toronto" planning to occur. Unfortunately, apart from the significant cost, there are a number of fundamental legal principles which Councillors do not seem to understand. These principles are as follows:
- As a quasi-judicial body, like the O.M.B., any new, municipally-appointed tribunal would be bound by the same procedural and substantive rules as the O.M.B. These relate to such things as requiring that all proceedings are conducted using the rules of procedural fairness and that decisions be made that are truly independent from the political process and political pressures.
- While the cries of a number of Councillors championing the cause of "made in Toronto planning justice" have a certain political ring to them, legally, there can be no such thing; that is, there cannot be one form of "planning justice" that would apply only in the City of Toronto and not elsewhere in the Province.
- There is already in place a process by which "made in Toronto" planning can occur. That consists of the current processes provided for by the Planning Act. Specifically, any municipality is entitled to amend its Official Plan to incorporate in it the policies which that municipal council believes are important. Such amendments to the Official Plan must go through a full public process, be subjected to scrutiny and analysis and ultimately, if necessary, be subject to appeals.
- But once these policies are in force and effect, any appeal tribunal (be it the O.M.B. or a municipally-appointed one) is then required to apply the approved Official Plan policies (together with Provincial policy) in coming to a decision based upon the evidence presented to it in a formal hearing.
- To do, as some City Councillors seem to suggest, that is, to slant the "planning justice" which will be meted out by a local appeal tribunal in order to respond to local political pressures, would defeat the purpose of having an independent appeal tribunal. It is extremely likely that a decision of a municipally-appointed appeal tribunal slanted in this way would be quashed by the Courts.
Accordingly, it is simplistic to suggest that having a municipally-appointed appeal tribunal would remedy any difficulties with the current development approval process. Indeed, one of the criticisms of the current system is that most of the members of the Ontario Municipal Board are not residents of the City of Toronto. The simple reason for that is that the current remuneration of O.M.B. members is such that it is difficult for Board members to be able to afford to live in Toronto. A better use of time, effort and resources would be to address this inequitable circumstance.
In any event, it is likely that, as the City of Toronto concluded previously, once the full cost of establishing a locally-appointed appeal tribunal is known, this idea will be deemed to be a non-starter. While the Province would probably like nothing more than to off-load this significant cost to the City, on balance, the current system works quite well to provide measured "planning justice" to all the parts of the Province.