Unlike matters before the Courts where a party who elects to not appear will typically have an adverse judgment rendered against them, the Ontario Land Tribunal (the “Tribunal”) differs in that the Tribunal has an overarching responsibility to assess whether a proposed development constitutes good planning and is in the public interest.
To that end, section 2.1 of the Planning Act requires the Tribunal to have regard for the decision of municipal council as well as any information considered by municipal council in making the decision, such as a planning staff report prepared by a registered professional planner on behalf of the municipality.
Success before the Tribunal is not a guarantee simply because the municipality whose council rendered a refusal or non-decision on the original application elects to not appear at the Tribunal. It remains incumbent upon the Applicant/Appellant to bring forward convincing evidence to the Tribunal in support of their proposed development, particularly where a municipality’s planning staff previously have recommended refusal.
In Griffin v Whitchurch-Stouffville (Town), 2026 CanLII 94390, the Tribunal refused an Applicant/Appellant’s minor variance appeal where the Town elected to not appear before the Tribunal, despite the Applicant/Appellant being represented by counsel and a land use planner. The Tribunal ultimately preferred the evidence contained within the Town’s planning staff report which recommended refusal and which formed part of the municipal record.
In Neo Construction Inc. v Cambridge (City), 2025 CanLII 121112, the Tribunal similarly refused a minor variance and consent appeal where the City elected to not appear. The Tribunal relied on the City’s planning staff report recommending refusal which formed part of the municipal record, despite the Applicant/Appellant calling a land use planner who recommended approval of the proposed development. In refusing the appeal, the Tribunal noted that “the application cannot properly be characterized as a minor variance, as it would, in effect, require an amendment to the Zoning By-law to authorize additional units beyond those currently permitted”, as was originally outlined by the City’s planning staff in their planning staff report.
It is important for municipalities, homeowners, and developers, alike, to be cognizant of the purpose and overarching policy considerations required to be weighed by the Tribunal in exercising its authority. It is simply not enough to presume that the Tribunal will allow an Applicant/Appellant’s appeal simply because the municipality elects to not appear before the Tribunal in defense of Council’s refusal or non-decision. It is critical that any proposed development being considered before the Tribunal satisfies the requisite tests in order for it to constitute good planning that is in the public interest.
The Municipal and Planning Law group at SV Law has extensive experience with appeals before the Ontario Land Tribunal and can assist in ensuring your proposed development has the best chance at success.
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