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Municipal - Ontario Land Tribunal (OLT) (2). Cytec Canada Inc. v. The Corporation of the City of Niagara Falls
In Cytec Canada Inc. v. The Corporation of the City of Niagara Falls (Ont Div Ct, 2026) the Ontario Divisional Court dismissed an appeal, this brought against "the decision of the Ontario Land Tribunal" which "agreed that Cytec was not a “specified person” within the meaning of s. 1 of the Planning Act and precluded it from proceeding" with appeals.
Here the court reviews recent amendments to the Planning Act (by the 'Cutting Red Tape to Build More Homes Act, 2024') regarding appeal standing to the OLT - specifically considering the statutory interpretation text and context assessment of 'specified person' under Planning Act s.1(1) ['Interpretation'], which it finds to be determinative:[1] Land use planning by municipalities can affect many interests in a variety of ways. As a result, the Planning Act, R.S.O. 1990, c. P.13, creates a mechanism whereby certain parties can appeal some types of municipal planning application decisions, such as zoning by-law amendments and official plan amendments, to the Ontario Land Tribunal. Prior to 2024, appeals of this type could be initiated by anyone who had made oral or written submissions to the municipality prior to the granting of the application. Consequently, appeals of these decisions could be commenced by practically anybody with an interest in the application, regardless of whether their rights were directly affected.
[2] In 2024, the Ontario Government enacted the Cutting Red Tape to Build More Homes Act, 2024, S.O. 2024, c.16 (“CRTA”), which amended the appeal provisions of the Planning Act. Appeals could no longer be commenced by anybody who made submissions to the municipality, but rather only by someone who met the definition of a “specified person” in s. 1 of the Planning Act. As a result, many parties who would have had the right to appeal some types of planning application decisions on the basis that they had made submissions were no longer able to do so.
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(ii) The Three Components of “Specified Person”
[32] The definition of “specified person” in s. 1 of the Planning Act has three components. A “specified person” must be (1) the holder of an ECA to engage in an activity mentioned in s. 9(1) of EPA; (2) the person’s “lands on which the activity is undertaken” must be within an area of employment and be within 300 metres of the area where the planning matter would apply; and (3) the person must intend to appeal the decision in question on the basis of an inconsistency with land use compatibility policy statements issued under s. 3 of the Planning Act. The first and third component are not at issue on this appeal.
(iii) The Meaning of “Activity”
[33] The “activity” which the “specified person” must have an approval to engage in is described in s. 9(1) of the EPA as “use, operate, construct, alter, extend or replace any plant, structure, equipment, apparatus, mechanism or thing that may discharge or from which may be discharged a contaminant into any part of the natural environment other than water” as well as “alter a process or rate of production with the result that a contaminant may be discharged” or which may alter the rate and manner of discharge. To put it simply, the “activity” is the authorized discharge of contaminants into the natural environment other than water.
[34] The appellant submits that the “activity” mentioned in the definition of “specified person” includes not only the discharge of contaminants, but also activities required by the ECA, such as monitoring, testing and identifying and maintaining buffer zones.[5] With respect, this confuses activity which the ECA permits with that which it requires. An ECA permits certain types of activity that results in the discharge of contaminants, and requires other types of activity, such as monitoring and testing.
[35] As noted below, a central focus of the Planning Act is to ensure land use compatibility, which provides further support for the conclusion that the “activity” in question is the discharge of contaminants and not other activities required to comply with the ECA. Proximity between the discharge of contaminants and residential housing raises obvious issues of land use compatibility, which is why the legislature defined “specified person” in terms of the distance (in this case 300 metres) between that activity and the area at issue. The proximity of monitoring, testing and other activities required by the ECA does not raise such issues.
(iv) “Lands on Which the Activity is Undertaken”
[36] If the “activity” is the discharge of contaminants, then the ordinary meaning of “lands on which the activity is undertaken” is the land where the contaminants are discharged. This must be within 300 metres of the area at issue in order to meet the definition of a “specified person.” It is the distance between the location of the contaminant discharge authorized by the ECA and the area at issue which matters.
[37] The Tribunal concluded that since the ECAs authorized Cytec to discharge contaminants at its manufacturing plant at 9061 Garner Road and this was more than 300 metres from the McLeod property, Cytec was not a “specified person” within the meaning of the Planning Act.
[38] Having determined the ordinary meaning of the term in question, the issue that must next be considered is whether a contextual and purposive analysis provides some reason to depart from that meaning. This requires consideration of the legislative intent behind the provision being interpreted.
D. Contextual and Purposive Analysis
i) The Purpose of the Planning Act
[39] As the appellant points out, one of the purposes of the Planning Act as set out in s. 1.1(b) is “to provide for a land use planning system led by provincial policy.” Provincial policy is set out in the Provincial Planning Statement, 2024, OIC 1099/2024 (ON) (“PPC”), which was issued pursuant to s. 3(1) of the Act and s. 3.5 of which provides as follows:3.5 Land Use Compatibility
1. Major facilities and sensitive land uses shall be planned and developed to avoid, or if avoidance is not possible, minimize and mitigate any potential adverse effects from odour, noise and other contaminants, minimize risk to public health and safety, and to ensure the long-term operational and economic viability of major facilities in accordance with provincial guidelines, standards and procedures.
2. Where avoidance is not possible in accordance with policy 3.5.1, planning authorities shall protect the long-term viability of existing or planned industrial, manufacturing or other major facilities that are vulnerable to encroachment by ensuring that the planning and development of proposed adjacent sensitive land uses is only permitted if potential adverse affects to the proposed sensitive land use are minimized and mitigated, and potential impacts to industrial, manufacturing or other major facilities are minimized and mitigated in accordance with provincial guidelines, standards and procedures. [Emphasis in original].[6] [40] The appellant submits that the policy objectives in the PPC of minimizing risks to public health and safety and ensuring the long-term viability of major facilities such as Cytec require that the statutory provision at issue be given a broad and liberal interpretation that best achieves those objectives, which is inconsistent with an unduly narrow interpretation of the terms “lands on which the activity is undertaken.”
(ii) The Purpose of the Amendment
[41] While the appellant’s argument holds some attraction, in my view its flaw is that while it considers some of the relevant context, it does not do so broadly enough. The definition of a “specified person” is the result of a statutory amendment. While minimizing risks to public safety and ensuring the long-term viability of major facilities are undoubtedly legislative objectives of the Planning Act, the statutory interpretation issue that arises in this case requires a consideration of the objectives of the amendment, that is, why the legislature has chosen to attempt to achieve its objectives by limiting those who can appeal planning decisions to “specified persons” rather than the wider category that existed before the amendments.
[42] As noted earlier, the CRTA must be interpreted as being remedial, which requires that the mischief it was intended to remedy be identified. As its name suggests, one of the primary objectives of the Cutting Red Tape to Build More Homes Act is to accelerate the construction of residential housing by reducing “red tape.” The CRTA’s preamble states that “unnecessary red tape too often delays shovels from getting in the ground” and that one of the measures the government intends to use to remedy this is “streamlining municipal approvals.” A preamble is an integral part of a statute and intrinsic evidence of its purpose: R. v. Kloubakov, 2025 SCC 25, 505 D.L.R. (4th) 197, at para. 70; Reference re An Act Respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5, 488 D.L.R. (4th) 189, at para 39; References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175, at para. 51.
[43] How amending the definition of “specified person” achieves the objective of “cutting red tape” and accelerating the construction of residential housing can be determined by considering the law as it existed prior to the amendment in order to discern what it was that the legislature intended to change: M. v. H., 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3, at para. 323. Prior to the amendment, virtually anybody who took an interest in certain types of planning instruments could appeal their approval by a municipality. After the amendment, the category of people who could launch such an appeal was significantly circumscribed. Clearly, the purpose of the amendment was to reduce the number of appeals of planning approvals by restricting rights of appeal, as the Tribunal concluded. This would obviously have the effect of “streamlining municipal approvals.”
[44] It is clear from the foregoing that the amendments were designed to balance the objectives of the Planning Act with the objective of accelerating the construction of residential housing. The flaw in the appellant’s argument is that it considers only the former objective. A purposive and contextual analysis requires that both be considered.
(iii) The Amendment Was Not Intended to Expand Appeal Rights
[45] The appellant submits that the purpose of the amendment was not to restrict appeal rights, but rather to expand them. This submission is based on earlier versions of Bill 185 and comments made when the bill was being debated in the legislature. The version of Bill 185 introduced at first reading restricted the definition of “specified person” to include only utility companies, telecommunications operators and railways. However, the bill was amended such that the definition was broadened to include the current categories of “specified persons.” At third reading, the Minister of Municipal Affairs and Housing said:So the bill has taken a step in the right direction by limiting third-party appeals, while at the same time amendments were brought in that allow us to preserve the rights of landowners to appeal amendments that may be made that disadvantage them, Mr. Speaker. This is something we heard from individual landowners, and we made that move in committee to address that challenge.[7] [46] The appellant submits that because the category of people who had rights of appeal was narrower at first reading than it was in the final version, the purpose of the amendment was to “preserve (or expand) appeal rights for major industries, but only on the grounds of inconsistency with land use compatibility policies in the PPS.”[8]
[47] With respect, comparing earlier versions of the bill with the final version is of little assistance in discerning legislative intent in this case. It seems that at one point, the legislature considered restricting appeal rights much more than it eventually did, but this does not change the fact that the legislature intended that far fewer people have a right of appeal than was the case before the Planning Act was amended. This is evident from what the Minister said immediately following what was relied on by the appellant:
The move of limiting third-party appeals, in and of itself, will unleash some 67,000 applications that are stalled before the board right now, and that will make a huge difference in helping us get shovels in the ground faster.[9]
(iv) Restricting Appeal Rights to Those With a Direct Interest
[48] An examination of the various categories of “specified person” in s. 1 of the Planning Act makes it clear that appeal rights have been restricted for the most part to those whose activities create immediate and obvious land use compatibility issues and who are directly affected by the planning instrument in question, rather than those who merely have an interest in it or who could be affected at some time in the future.
[49] Some of the categories include various types of utility companies operating in the municipality or planning area, such as electric, gas, oil and telecommunications (subsections (a), (d), (e) and (h)) and some specific public agencies, such as Ontario Power Generation, Hydro One and NAV Canada (subsections (b), (c) and (i)).
[50] The rest of the categories are all defined in terms of certain activities and the proximity of the activity to the area to which the planning decision applies. They include a company operating a railway line within 300 metres of the area (subsection (g)), the operator of an airport which affects the use of land within the area (subsection (j)), those licenced to engage in certain excavation activities within 300 metres of the area (subsection (k)), and those engaged in activities regulated under the EPA where those activities are undertaken within 300 metres (subsections (l) and (m)).
[51] In this case, the appellant engages in one of the types of the activities that are listed, but does not do so within the required proximity of 300 metres. While it does own land within 300 metres, the land is vacant and not used for any of the enumerated activities. It is difficult to see how the fact that Cytec happens to own vacant land near the area in question raises the type of immediate and obvious land use compatibility issue that is required to create a right of appeal.
[52] During oral argument, counsel for the appellant submitted that the expansive definition of “specified person” the appellant urges this court to adopt would “save lives” because it allows Cytec to have some say in whether there is a residential development close to the location where it produces hazardous chemicals. However, if Cytec had never acquired the Beechwood lands, it would clearly not be a “specified person” even though its operations would be no less hazardous.
[53] The untenability of the appellant’s position is evident if one considers a hypothetical situation in which the Beechwood lands were far larger than they are and Cytec owned vacant and unused land that was 100 kilometres in length between the manufacturing plant and the McLeod property. As counsel acknowledged in oral argument, on the appellant’s interpretation of the definition of a “specified person,” Cytec would have a right of appeal in these circumstances, even though the hazardous activity it engaged in was over 100 kilometres from the proposed subdivision.
[54] It follows from the foregoing that the reason Cytec does not meet the definition of a “specified person” has nothing to do with the fact that its property comprises several distinct parcels of land, as the appellant submits.[10] As explained, it is the location of the lands where the activity in question, the discharge of contaminants, takes place that matters, not the location of other property which may belong to the same owner. Whether Cytec’s property consists of one parcel or several is of no moment.
(v) Conclusion
[55] It is evident from the foregoing that that a purposive and contextual analysis does not provide any reason to depart from the ordinary meaning of the definition of “specified person.” The Tribunal was correct in concluding that the ordinary meaning of the provision was consistent with the purpose of the legislation and the context in which it was enacted.
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