Questions Posed at LPAT Webinars


No.

Question

 

Rules

1

Question: Will the new Rules of Practice and Procedure apply to existing ongoing proceedings as of April 3, 2018?

Answer: Yes, the Tribunal will have one set of Rules that, as of April 3, 2018, apply to all proceedings including new and ongoing matters.

2

Question: Section 38(1) and 38(2) of Bill 139 separate Planning Act appeals into two categories. Sections 40, 41 and 42 have separate rules for those two categories. If you have an appeal that falls under 38(1) and an appeal that falls under 38(2), which rules apply?

Answer: Part 2 of the LPAT rules will apply to all proceedings that fall under Sections 38(1) and 38(2) of the Local Planning Appeal Tribunal Act. There is no separation in Part II for appeals that fall within Section 38(1) or appeals that fall within 38(2).

3

Question: Why is there no provision for a responding opinion affidavit from the municipality? Rule 26.12 vs. 26.13?

Answer: There is a provision in Rule 26.15 for a responding opinion affidavit in the responding appeal record.

4

Question: Why is a summary of oral submissions required if a video is provided? Wouldn't the latter be more accurate?

Answer: Rule 5.04 provides that the municipality shall provide a summary of oral submissions received from the public at the statutory public meeting and when available, a video and audio record. The summary is required because it is an efficient way for all of the interested persons in the appeal to understand the submissions from the public on the proposal. 

If however, a dispute arises over the content and completeness of the written summary, then the Tribunal and parties can readily and easily refer to the video or audio record. There would otherwise be a delay in the proceeding if the Tribunal had to order the municipality to provide a video should there be a dispute over the content and completeness of the written summary.

 

CMC

5

Question: I have a question relating to the mandatory case management conference that is required pursuant to section 39 of the Local Planning Appeal Tribunal Act. Rule 26.17 indicates that the Tribunal shall direct the appellant, municipality “…to participate in a case management conference.” Rule 26.20 indicates that the Tribunal may direct the appellant, municipality “… to participate in a case management conference conducted by a Member.”

Answer: There is a mandatory requirement for a case management conference after there has been a preliminary determination by the Tribunal of a valid notice of appeal in a Part II proceeding. Rule 26.17 is consistent with section 39 (1) of the Local Planning Appeal Tribunal Act. Rule 26.20 expresses the term “may” because the Tribunal could determine that more than one Case Management Conference is necessary for a particular matter.

6

Question: How will local residents know – in order to participate – that a Case Management Conference is up-coming?

Answer: The Tribunal will direct public notice of a case management conference. Local residents will be informed by mail, or newspaper. Local residents who participate in the statutory public meeting at the municipality can also request to be informed of any appeal of the proposal.

 

Hearings

7

Question: The LPAT Act allows for more than one hearing officer. Are there any criteria for the degree of complexity that would warrants more than one officer?

Answer: At this time, there are no criteria to warrant more than one hearing officer as this is dependent on the resources available to the Tribunal.

9

Question: For minor variance, consents etc., how will the hearing proceed? For example, will it essentially be the same as current (i.e. oral submissions and hearing, cross examination etc.)? How does Bill 139 impact these types of appeals?

Answer: For minor variances and consent appeals, there will be no change to the hearing process as a result of the amendments to the Local Planning Appeal Tribunal Act or the Planning Act. O. Reg. 102/18 (made under the Local Planning Appeal Tribunal Act) has introduced timelines for the Tribunal to dispose of appeals for minor variances and consents.

Changes to the hearing process will only apply to those appeals that fall under Section 38 (1) and Section 38 (2) of the Local Planning Appeal Tribunal Act.

10

Question: Upon an appeal of a non-decision of an OPA or ZBLA, does LPAT Refer the matter back to Council for reconsideration, or is LPAT’S decision?

Answer: LPAT is not required to refer an appeal of a non-decision under Section 17(40) back to council to provide an opportunity to make a new decision. However, LPAT is required to refer an appeal of a non-decision of a ZBLA to the municipality that enacted the bylaw if LPAT finds that the non-decision failed the test of consistency and conformity set out in section 34 (26.1) of the Planning Act.

 

Party / Participant

11

Question: The new Rules do not explicitly allow a status between party and participant. Is this assumption correct? I assume that “Non-appellant Party” is not intended to satisfy that intermediate status. Note that we have occasionally been successful at requesting a Special Participant status; however it is subject to agreement by all Parties and the Member.

Answer: The LPAT Rules do not allow a status between a party and a participant. The Tribunal can however set the terms upon which a person may participate in an appeal. However, it is important to keep in mind that in an appeal of a proceeding which falls under section 38 (1) or 38 (2) of the Local Planning Appeal Tribunal Act a person must pre-file a written submission 30 days prior to the CMC in order for that person to participate in the appeal as either a party or a participant. Rule 26.19 sets out this requirement and summarizes the content of the written submission that is to be provided. This new requirement arises from the statutory test in section 40 of the Local Planning Appeal Tribunal Act.

13

Question: Who is eligible to be a participant at a hearing? Please provide more detail of the submission requirements for eligible participants.

Answer: Eligibility for participant status is different for a proceeding which is subject to Part I of the rules compared to a proceeding which subject to Part II. For example, a person who is interested in participant status at an appeal of a minor variance may be granted participant status if they have an interest in the matter. However, a person cannot be granted participant status by LPAT at a Part II proceeding unless they can demonstrate in a pre-filed written submission how they can contribute by addressing the new test of consistency and conformity set out in the Planning Act. This test is summarized in Rule 26.19.

14

Question: Will there be changes in the new proceedings, which will restrict the ability of parties to have their witnesses give testimony? I understand that these witnesses are to give written evidence, that they can only be questions by Chairs, but I wonder if there are any new restrictions on the ability of parties to present them to LPAT?

Answer: The Local Planning Appeal Tribunal Act does not allow any party of person to call a witness in appeals under Sections 17(24), 17(36), 17(40), 22(7), 34(11), 34(19) and 51(34) of the Planning Act.

 

Witnesses

15

Question: What is the role of an expert planning witness in the new LPAT?

Answer: The role of the expert planning witness will not change for any proceedings EXCEPT FOR the appeals which fall within Section 38(1) and 38(2) of the Local Planning Appeal Tribunal Act which are listed and addressed in Part II of the Rules. For those Part II appeals, this legislation does not permit any party or any person to call or examine a witness, either before or during a hearing, and that includes an expert planning witness. Only a Tribunal Member may call a witness or expert planning witness to testify at or before a hearing.

 

Transition

16

Question: How will some transitional matters work? For example, if an ARA license has already been referred to the OMB, but cannot be decided until the related Planning Act issues are decided but they have not been filed yet – does it really make sense for the Planning Act appeal to be decided by the LPAT but the ARA license decided by the OMB?

Answer: Regulation 101/18 (made under the Local Planning Appeal Tribunal Act) and Regulation 174/16 (made under the Planning Act, last amendment 67/18) address how ongoing proceedings before LPAT will be transitioned or continued. LPAT will have to address related planning appeals on a case by case basis when they require an interpretation of either transition regulation or this new legislation.

17

Question: What will be the process for consolidated hearings for consents under Part I rules and zoning by-law amendments under Part II rules?

Answer: These related appeals will be reviewed on a case by case basis. In this example, LPAT will need to decide whether a zoning by-law amendment must be in effect before a consent can be allowed. If the zoning amendment is required before the consent, then it should follow that the Part II Rules will be applied to determine the appeal of the zoning by-law before the appeal of the consent is decided. 

 

Second Appeal

18

Question: In order to receive a full hearing for a Planning Act appeal on a new decision (after remitting back to municipality), does it have to be the same appellant, or is it that a full hearing is held no matter who the appellant is at every stage?

Answer: The procedures introduced in the Local Planning Appeal Tribunal Act will allow a new appellant to a second appeal.

19

Question: Is there a Hearing De Novo for a New Decision (Second Decision)?

Answer: De Novo is a term is that has often been used loosely. Its literal meaning is to start again. When the Tribunal conducts a hearing on a new decision – a decision which the Council was given an opportunity to make following an earlier decision of the Tribunal – it conducts a new hearing where it may modify or change the decision of council.

20

Question: When the LPAT sends back a decision to Council, will it provide some direction or suggestions based on the LPAT hearing?

Answer: LPAT will be required to provide reasons for its decision to allow an appeal and send a matter back to the council that adopted the amendment under the new procedures set out in Part II of the Rules. These reasons may offer some direction through the Local Planning Appeal Tribunal Act which does not require the Tribunal to provide suggestions for the municipality to consider when making a new decision.

 

Validity

21

Question: What will the Tribunal use to determine the validity of an appeal and what will the test be?

Answer: The validity of the appeal refers to the preliminary screening exercise carried out by a Tribunal Member to determine whether or not the notice of appeal provides the explanations of the appeal, required by the Planning Act for that particular appeal (ie see subsections 17(25), 17(37), 17(41), 22(8), 34(11.0.0.04, 34(19.0.2) and 51(34).

 

Timelines

22

Question: What are the consequences of failing to adhere to the prescribed time limits in the new O. Reg 102/18?

Answer: This regulation does not set out a consequence if LPAT fails to adhere to a prescribed time limit.

23

Question: Is there a time frame set out for the LPAT to determine validity of the appeal?

Answer: Rule 26.05 of the Rules provides that within 10 days of the Registrar’s acknowledgement of receipt of a notice of appeal, the Tribunal is to carry out a preliminary screening of the appeal for validity. 

 

Forms

24

Question: Are the municipal form checklists available for review?

Answer: Yes, the checklists are available on ELTO’s website. You can visit our website to access municipal forms.

25

Question: Regarding the Appellant forms, it was indicated in the presentations that they have been updated. I just wanted to confirm that is the case.

Answer: Yes. You can find the appellant forms on ELTO’s website.

26

Question: Who has to pay the $300 appeal fee?

Answer: Each appellant must separately pay the appeal fee of $300.

 

Scheduling

27

Question: Do you anticipate that there will be a delay in having outstanding OMB matters heard in order to facilitate the new LPAT deadlines? Will LPAT matters take priority over transitioned OMB matters?

Answer: Appeals which have a prescribed time limit will be scheduled on a priority basis. Whether there is a delay in disposing of outstanding matters is dependent upon the resources available to LPAT.

28

Question: For clarification, are Development Charges-related appeals still being heard under the "OMB format"?

Answer: Yes, appeals under the Development Charges Act (including complaints) will be heard under Part I of the LPAT rules and will have the same hearing format of the former Ontario Municipal Board.

29

Question: What happens when a lawyer is booked for multiple hearings on a given day now that availability is not canvassed?

Answer: The Tribunal will proceed because of the legislated timelines and perhaps in certain cases, this will mean that clients may not be able to be represented by the counsel of their choice.

30

Question: Does new regime provide a similar section 43 review?

Answer: Yes, please see Section 35 of the Local Planning Appeal Tribunal Act and Rule 25.

 

Membership and Appointments

31

Question: We understand numerous appointments of the existing Members are expiring. Can you advise whether those appointments are expected to be renewed or filled? Will the complement of the Tribunal membership be increasing?

Answer: Decisions on appointments or reappointments are at the discretion on the Minister of the Attorney General and are not proper matters for the Tribunal to provide comment. The Tribunal is not aware of any direction to increase the complement of the Tribunal Membership.

 

Mediation

32

Question: Please elaborate on the opportunities for mediation during the Case Management Conference?

Answer: The Local Planning Appeal Tribunal Act requires the Tribunal to discuss amongst the parties opportunities for settlement or mediation at the CMC.




February 21, 2019
Tribunals Ontario
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