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Ontario court backs LPAT process, but what that means for KED opponents is unclear

And with more provincial changes coming to the process, it doesn't look like the uncertainty will be cleared up anytime soon
Artists representation of Kingsway Entertainment District. (Supplied)

An Ontario Divisional Court has ruled the legislation behind the Local Planning Appeals Tribunal is valid, and confirmed that the members of the tribunal have broad powers in dealing with planning appeals.

But how the ruling will affect the LPAT appeal of the Kingsway Entertainment District is still unclear, particularly with the province bringing in another set of planning rules that reestablished some of the elements of the Ontario Municipal Board, which the LPAT replaced.

The current system came into effect more than a year ago, with the goal of resolving planning disputes within a year – while expecting the legality of some of the new rules would be tested by a higher court.

The ruling handed down this week by the divisional court deals with a proposed Rail Deck Park in Toronto, which was opposed by private developers who have their own project they want to build on the same lands.

The tribunal referred to the higher court to rule on several questions: can lawyers for either side introduce new evidence at a hearing not requested by the LPAT (the court ruled no); are there circumstance when lawyers could be allowed to cross-examine witnesses (again, no); and, can lawyers cross-examine people providing affidavits on the case to the tribunal (no again).

The court also ruled against an argument by the City of Toronto that no new evidence should be introduced at the LPAT. While Toronto's lawyers argued the decision should be based only on the municipal record and the arguments put forth by the parties, the court ruled the tribunal is in control of the process, and can call for new evidence and witnesses as it sees fit.

But in keeping with its other decision, the court ruled lawyers can't cross-examine witnesses called by the LPAT to provide new evidence.

What the ruling means for the Kingsway Entertainment District is unclear, although the divisional court ruling would seem to unblock the process, which has been frozen since a suspended case management conference was held last November.

In an email, Greater Sudbury communications officer Shannon Dowling said the city is examining the ruling.

“The city plans to review the results of the decision, as well as recent proposed changes to LPAT, to better understand how future development in our community may be impacted,” Dowling said.

Those recent changes include another overhaul of planning appeals announced by the Progressive Conservative government earlier this month. The province plans to reform the LPAT and restore much of the rules used by the OMB.

In an email, Conrad Spezowka, a spokesperson for the Ministry of Municipal Affairs and Housing, said the reforms are aimed at reducing the backlog of planning appeals, some of which have gone on for several years.

“We are proposing amendments to the LPAT Act to provide the tribunal with greater adjudicative and case management powers to reduce delays and improve processes, Spezowka said. “This includes amendments that would promote a more efficient land-use planning appeal system by encouraging the use of mediation, simplifying processes and removing potential sources of delay.

“These changes would allow the LPAT to move through its caseload more expeditiously and encourage settlement of matters before the tribunal.”

To speed up decisions, Spezowka said the government will increase the number of people on the LPAT by 40 per cent to deal with chronic shortages. As for how cases such as the KED will proceed, he said there will be transition rules posted outlining how that will work, just as there were when the LPAT took over from the OMB.
“The Ministry of Municipal Affairs and Housing and the Ministry of Attorney General will consult on transition rules,” Spezowka said. “These rules will be set out through regulation, and will clarify how appeals will be addressed to try to support a seamless transition that mitigates concerns about having different appeal rules.”
The ministry will also post transition rules with respect to the Planning Act on the Environmental Registry of Ontario and the Regulatory Registry, he added.

“We’ll have more to say about this in the coming months.”


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Darren MacDonald

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