LPAT’s rules of practice and procedure are being clarified as cases come forward under the new regime. Recently LPASC helped to clarify an important element of the new appeal process for major planning matters through one of its cases underway in Kitchener.
Under the new appeal system, once a municipality makes its decision, only the appellant and municipality are “party” to the appeal. Others, including the applicant, are directed to request party status, a minimum of 30 days prior to a Case Management Conference (CMC). (The CMC is a mandatory proceeding held before a hearing where, among other matters, the Tribunal identifies who will have party or participant status.)
In the Kitchener case, the applicant filed a motion to request that party status be granted to them prior to the CMC. The applicant wanted party status in advance of the CMC so they could be entitled to bring forward motions for dismissal of the appeal.
LPASC believed that if LPAT granted the motion and gave the applicant early party status the applicant would gain an unfair advantage over others seeking party status at the CMC. In the current Kitchener case, the applicant could then file a motion to dismiss the case before the Tribunal had the opportunity to review other positions and assess the appeal record fully. With party status ahead of a CMC hearing, the applicant truncates the Tribunal process and, in effect, influences the outcome in their favor.
LPASC believed that accepting the applicant’s motion would be contrary to Ontario’s policy goals–to level the playing field so that all voices have a chance to be heard and decisions are made at the local level. An unfavourable ruling would not only jeopardize LPASC’s current case but could be detrimental to its future cases. Other applicants with the financial resources could use similar tactics, which would severely undermine the new system.
At the motion hearing, LPASC argued that the applicants do not have any special status under the LPAT Act and, therefore, must be treated just like any other potential non-appellant party. Granting the applicants party status in advance of other non-appellant parties could be prejudicial to those who would expect to seek status at the CMC. LPASC also emphasized that it is the municipality’s decision that is under appeal, and it is the responsibility of the municipality to demonstrate that its decision satisfies the consistency/conformity test. The applicant’s position would be well represented through their original application that would include all necessary documents and materials which supported the positive decision made by the municipality.
In its Decision, LPAT denied the applicant’s early request for party status, stating:
“…While the Tribunal appreciates the special role of an applicant under the Planning Act, an applicant is treated the same as all potential parties under the LPATA and must answer to how its participation will ultimately assist the Tribunal…” (Paragraph 25)
“From a fairness and efficiency standpoint, the Tribunal finds the appropriate approach is to deal with such questions (party status requests and preliminary motions) in a one forum in a consistent manner, and that is at the CMC, when the Tribunal has a complete record and has determined all parties to the appeal(s).” (Paragraph 31)
“The decision reinforces the important role of the municipality as the decision maker who must ensure the application is consistent with and conforms with provincial and local policy, and who must be prepared to defend its decision through the appeal process,” says Mark Christie, LPASC Registrar. “And it shows that LPASC has a role to play in helping to ensure procedures benefit all parties and LPASC’s future cases.”
[LPAT Decision PL180741]