Despite its struggles, it's too soon to declare the province's new planning appeals system a failure, says a professor at the University of Waterloo's School of Planning.
Considering what it was up against, Dr. Kevin Curtis says it's no surprise that the Local Planning Appeals Tribunal hasn't seamlessly transformed the appeals process from a costly, years long slog into an efficient and quick decision-making body.
“It is too soon,” Curtis said. “I mean really, the legislation received royal royal assent in December of 2017 … With anything of this magnitude, there's always several years where you try to iron out the kinks – the things that nobody thought about or things that don't end up quite working in the way people thought they would.”
Planning appeals across the province – including the Kingsway Entertainment District in Sudbury – are effectively on hold waiting for a divisional court ruling on whether the LPAT legislation violates the laws of natural justice.
In simple terms, that means the court is being asked to rule whether the LPAT rules of procedure – such as determining who the witnesses will be and limiting the time and nature of presentations by the appellants and defendants – are inherently unfair and would deny them a fair hearing.
The specific LPAT case the court is dealing with — the Toronto Rail Deck project — has a hearing late next month. Curtis said that decision will go a long way toward determining how successful the new process will be.
“That will be the one that ultimately provides the direction to all parties for any future LPATs, regarding how this stuff plays out,” he said. “With something this big and complicated, you don't fully appreciate how are things going to work until you start to work with it. And then you go, you know, this is working, but this isn't working. It's always a refinement process.”
The problem with planning laws, Curtis said, is so much planning law is subjective and open to interpretation, depending on the individual circumstance.
“When you read the Provincial Policy Statement, it's a guidance document has been applied all across Ontario, but the circumstances all across Ontario differ widely,” he said. “So when you're looking at being consistent … Well, there are disagreements on what the best interpretation of consistency actually means in a particular circumstance.”
Needs a fix
Bigger picture, Curtis says the province needs to change the way it deals with the members of the actual tribunal. There are supposed to be 28 members, and they are tasked with the job of not only deciding on LPAT cases, but hundreds of leftover cases from the Ontario Municipal Board.
In practice, he said the board is never at full strength, and there's steady turnover because tribunal members are hired on short contracts. Anyone qualified often move on for better paying, permanent jobs elsewhere.
Instead of allocating more resources for the tribunal, Curtis said the former Liberal government spent about $1.5 million setting up local LPAT support offices – which weren't effective and have just been cut by the new Progressive Conservative government.
“Nothing was done in terms of the resources that went to the LPAT,” Curtis said. “They still didn't have a full slate of 28 people. We still don’t have adequate support resources to allow them to do research or have time to talk as a group about the decisions that are being made.”
So the understaffed tribunal is attempting to deal with untested planning legislation, as well as the hundreds of old OMB cases that will have to be dealt with at some point. And each case has hundreds or thousands of pages of information for the tribunal to wade through, a time-intensive process.
“These people are probably, by definition, somewhere in their 40s, 50s, maybe 60s, and they've got a track record of doing good work,” Curtis said. “How many are willing to take that kind of job?”
Becky Fong, spokesperson for the LPAT, said in an email the province is trying to bring the tribunal to a full compliment, and those efforts continue.
“The current roster consists of a combination of full-time and part-time members, as well as members who are cross-appointed and shared with other tribunals,” Fong said. “There are ongoing efforts to recruit members to fill vacancies at the tribunal.”
And while there have been several delays, she said “several” appeals have successfully gone through the process and dealt with within the timelines.
“When preliminary matters are raised at a hearing and motions need to be dealt with as a result, there may be an impact on timelines,” she said. “Once these matters are addressed, the appeal can still proceed within the parameters of the legislation.”
For his part, Curtis said the viability of the LPAT will be determined by the courts. If it's struck down, there are arguments to do away entirely with the entire process.
“Some people argued we should just get rid of the whole thing entirely, because we're the only jurisdiction in North America that has something like the OMB,” Curtis said. “In most jurisdictions, you just go through the court system.”
