“I am what you made me” – Charles Dickens Bill 185
It has been over nine months since Bill 185, Cutting Red Tape to Build More Homes Act, 2024, (“Bill 185”) received Royal Assent. Among its more notable changes, Bill 185 restricted the appeal rights respecting zoning by-law and official plan amendments (collectively, “Planning Instruments”), whether privately or municipally initiated, to the Ontario Land Tribunal (the “Tribunal”) under subsections 17(24), 17(36) and 34(19) of the Planning Act.[1] These restrictions originally applied writ large, meaning that not only would third parties[2] not be able to appeal privately initiated Planning Instruments, but landowners whose lands were impacted by municipally initiated Planning Instruments would also be without appeal rights. However, as a result of stakeholder feedback, the version of Bill 185 that received Royal Assent made an exception for registered owners of lots where Planning Instruments “apply”. Put another way, a right of appeal exists under the Planning Act where Planning Instruments affect one’s property (i.e., for “second party appeals”), but not for third party appeals.
In introducing Bill 185, the Province emphasized that the restriction on third party appeal rights was done to streamline municipal approvals and speed up the development process.[3] Notably, the Tribunal has recently reported that these Bill 185 changes reduced the Tribunal’s case load.[4] Yet, a recent case from the City of Toronto is one of many examples which challenges whether this approach, and more specifically, the reversal of the writ large approach, will be successful in practice in achieving the Province’s stated policy goals, for better or for worse.
The Importance of Second Party Appeal Rights
As discussed in a previous Ontario Bar Association article, the inclusion of second party appeal rights for municipally initiated Planning Instruments is important to ensure that recourse exists in instances where municipalities downzone properties, or place further restrictions on development possibilities via secondary plans.[5] While this exception to the originally proposed Bill 185 restriction on appeal rights was intended to maintain procedural fairness in planning matters for those whose rights and interests are affected by municipal decisions, it raises the question whether the Province has struck the appropriate balance of streamlining municipal approvals, and providing recourse to landowners who are impacted by municipal planning decisions.
Second Party Appeal Rights in Practice: 2856973 Ontario Inc. v Toronto
In 285 Ontario v Toronto,[6] 2856973 Ontario Inc. (“285 Ontario”) appealed Toronto’s Official Plan Amendment 727 (“OPA 727”) and Zoning By-law Amendment 608 (“ZBA 608”)[7] to the Tribunal. OPA 727 and ZBA 608 (the “City Instruments”) collectively propose to allow townhouses and small scale apartment buildings up to six storeys and 60 units, as-of-right along Toronto’s “Major Streets”,[8] with the stated purpose to enable intensification to be more equitably spread across the City, and to assist in increasing the variety and availability of housing for current and future residents of Toronto.[9] The City Instruments were approved by Council on May 22 and 23, 2024 and officially enacted and passed on June 27, 2024. 285 Ontario then appealed the City Instruments on behalf of the owner of one property, but on a City-wide basis. Importantly, 285 Ontario’s appeal is not a case of “not in my backyard” or “NIMBY-ism” arguments, where appellants challenge Planning Instruments by opposing the amount of density proposed. Instead, 285 Ontario argued the City Instruments did not go far enough in their density-improving measures.
While it is a common occurrence for landowners to appeal municipally initiated Planning Instruments on a wider basis (i.e., all the lands where the instruments apply), it is also common that the municipality will then seek to scope the landowners’ appeals so that the remainder of the Planning Instrument’s policies can come into effect on the lands which do not affect those landowners. In fact, such a scoping exercise could be seen to balance the Provincial intent of streamlining municipal approvals while still permitting impacted landowners to exercise their appeal rights. However, in instances where the landowners do not consent to scope their appeals, is the Provincial intent of Bill 185 still being appropriately balanced?
In 285 Ontario v. Toronto, the Tribunal considered a motion brought by the City at the first Case Management Conference (“CMC”). The City requested an Order of the Tribunal to scope 285 Ontario’s appeal to its own property, and to specific policies. The City also requested an Order confirming that the balance of the City Instruments not under appeal would come into effect across the remainder of the City by operation of law. While the Parties agreed to scope the policies challenged (in this case, to setback, screening, building orientation, building height and length, building separation distance, and maximum number of dwelling units), which was approved by the Tribunal, the Tribunal denied the motion to geographically scope the appeal.
In the decision, the Tribunal first noted that, although the appellant is the registered owner of 417-419 Burnamthorpe Road, being the registered owner of a site is not a suggestion that the concerns outlined therein are solely in relation to that site. The Tribunal found that 285 Ontario had been clear in its notice of appeal and prior submissions to City Council of its concerns with the City Instruments on a City-wide basis, and not in relation to any particular site.[10] Because 285 Ontario’s concerns had always been, and continue to be, City-wide, the City’s motion to geographically scope the appeal was denied.
At the CMC, the Tribunal also granted two other landowners party status. While one party supported 285 Ontario’s reasons and policies under appeal, the other party, who owned 382 Lawrence Avenue West (“382 Lawrence”), submitted that 285 Ontario’s appeal prevented it from advancing their plans and what they may build “as of right”.
As a result of this concern and in an effort not to delay 382 Lawrence’s development, 285 Ontario proposed to scope its appeal of ZBA 608 to exclude the lands owned by 382 Lawrence, which 382 Lawrence agreed to. However, the Tribunal did not approve this scoping request because it could not make a determination on whether the appealed portions of ZBA 608 would conform to the City’s Official Plan, absent a corresponding approval of the appealed portions of the proposed OPA 727. In doing so, the Tribunal noted that its decision did not preclude any party from bringing a “fulsome motion” requesting such relief.[11]
Finally, the Tribunal scheduled a second CMC for February 27, 2025.
Unintended Consequences
At the second CMC, the Tribunal received three additional party status requests, each with their own motions to bring ZBA 608 into force and effect on their own properties pursuant to section 34(31) of the Planning Act.[12] 328 Lawrence also filed a “more fulsome” motion for scoping, and made submissions on how the scoping of the lands from ZBA 608 would not create conformity issues with OPA 727.
While all motions were granted, it remains notable that the Tribunal’s directions from the first CMC effectively require the hiring of a lawyer and subsequent drafting of a motion to approve a zoning by-law for properties where it was not appealed. This implies that future landowners seeking to have their lands “scoped out” of appeals, even if on consent with the appellant, will be subject to the additional time and costs of a motion, and the resulting delay in providing housing on their properties until a decision is rendered.
Two CMCs have now occurred, but the City Instruments, which purport to assist in the provision of housing throughout the City, remain largely unapproved. Applied broadly, the decision in 285 v Toronto means a single party can still effectively slow down the implementation of Planning Instruments across the City, even where those instruments improve density options, as opposed to restricting them.
A five-day hearing on this matter has been scheduled in November 2025, almost a year and a half after the City Instruments were approved by City Council in June 2024. For those affected landowners who did not hire counsel to prepare a motion and request that the Tribunal scope the appeal to exclude their lands, this means that they will not be able to take advantage of these as of right provisions until after the hearing concludes and a decision is rendered.
Meeting Expectations
285 Ontario v. Toronto raises the question whether the Bill 185 restriction on appeal rights, in practice, is in fact meeting its Provincially stated purpose – to speed up municipal approvals, while balancing a landowners’ right to challenge Planning Instruments which impact their land – or whether these two purposes are irreconcilably conflicting.
As a newer Bill, it remains to be seen whether the Province will make further amendments to the Planning Act in an attempt to find the appropriate balance. Such amendments could be as simple as preventing “global appeals” of all Planning Instruments, not just new official plans,[13] or by restricting “second party” appeal rights as was originally intended before Bill 185 received Royal Assent.
While Great Expectations may have been the original intent: “Change begets change. Nothing propagates so fast.”
– Charles Dickens Land Use Planning
[1] Bill 185, Cutting Red Tape to Build More Homes Act, 2024, Schedule 12, ss. 3(1), 3(3) and 5(7).
[2] For the purpose of this article, “third parties” is defined as anyone who is not listed under subsections 17(24), 17(36) and 34(19) of the Planning Act, including a “public body”, “specified persons” or registered owner of any land to which the plan or by-law would apply, who made oral or written submissions to Council prior to a decision being made; the Minister; and the appropriate approval authority. “Public Body” and “Specified Persons” are defined in the Planning Act and generally include government, utility boards and agencies.
[3] Ontario, Legislative Assembly, 43rd Parliament, 1st Session, Official Report of Debates (Hansard), No. 145 (15 April 2024) at 8402.
[4] Ontario Legal Conference, Municipal, Planning and Environmental Law, Presentation of Vice Chair William Middleton, Ontario Land Tribunal, Your Critical Update on the Ontario Land Tribunal (February 6, 2025).
[5] See Miller, R., O’Brien, G., and Koschany, N., “Bill 185: The Proposed Restriction of Third-Party Planning Appeals – Brave New World, or Pandora’s Box?” in Ontario Bar Association, Municipal Articles. Online at: <https://www.oba.org/Sections/Municipal-Law/Articles/Articles-2024/May-2024/Bill-185-The-Proposed-Restriction-of-Third-Party>.
[6] 2025 CarswellOnt 656 (OLT) [“285 Ontario v Toronto”].
[7] City of Toronto By-law 609-2024 to adopt Amendment 727 (Enacted and passed on June 27, 2024); City of Toronto By-law 608-2024 to Amend Zoning By-law 569-2013 with respect to low-rise residential intensificaiton on major streets (Enacted and Passed on June 27, 2024).
[8] As illustrated in Map 3 of the City’s Official Plan, found online at: <https://www.toronto.ca/wp-content/uploads/2017/11/984d-cp-official-plan-Map-03_OP_ROW_AODA.pdf>.
[9] City of Toronto, Report for Action, Expanding Housing Options in Neighbourhoods: Major Streets Study - Final Report (April 24, 2024).
[10] 285 v Toronto, supra note 6, at paras. 51-54.
[11] Ibid at paras. 55-58.
[12] 2856973 Ontario Inc. v. Toronto, OLT Lead Case No. OLT-24-000837 (issued March 12, 2025).
[13] As is prevented by section 17(24.2) of the Planning Act.
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