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Tribunal Amalgamation and Further Erosion of Public Rights Before Municipal LPAT and Environmental ERT Boards

Tribunal Amalgamation and Further Erosion of Public Rights Before Municipal LPAT and Environmental ERT Boards

By:

Posted July 29, 2021

Readers will recall our previous blog highlighting the serious inroads into justice for litigants as a result of the recent amendments, many imposed retroactively, to the Local Planning Appeal Tribunal. We felt that these changes provided unfair advantages to Municipalities and Proponents at the expense of affected and interested parties. The initial reaction and scope of that initiative, pales by comparison with the new Bill 245 ironically known as “Accelerating Access to Justice Act 2021” which appears to have exactly the opposite direction of its title.

Under Bill 245, five formerly separate Tribunals have been amalgamated into one unit, now known as the Ontario Land Tribunal, consisting of what was The Board of Negotiation Under Expropriations, The Conservative Review Board, The Environmental Review Tribunal, The Local Planning Appeals Tribunal and The Mining and Lands Tribunal. The first and obvious difficulty with this new arrangement is that it replaces what was experienced and expert Boards into one Tribunal dealing with all of the subject matter of the previous five Tribunals from which it is composed. The Environmental Review Tribunal and the Local Planning Appeals Tribunal both had elaborate and separate rules governing their proceedings, tailored to the specific areas in which they dealt. Early assurances suggest that the distinction of the former Boards will be maintained but it is difficult to understand how this objective can be obtained when all five Boards are jumbled into one Tribunal with no legal requirement for any particular expertise for any of the members of this new board, when dealing with five separate subject matters.

Some of the more egregious changes remove the right to oral submissions at a hearing to the parties themselves. Non-parties are limited to written submissions only. Whereas present legislation allowed appeals from the Environmental Review Tribunal directly to the Minister, these have been abolished by virtue of the new statute. Important environmental consideration that should potentially be the subject matter of a Ministerial examination are now limited to hearings affecting the parties to the particular piece of litigation only.

One troubling provision is the fact that the Act allows the new Tribunal power to establish alternate modes of hearing, but provides no guidance or reasons why alternative modes can or should be adopted, nor do they provide any procedure whatsoever for governing these unknown new procedures. Important hearings can now be held virtually or in writing with absolutely no guidance as to why such procedures should apply or how the hearing would work procedurally or substantively.

Appeals in respect of the new Tribunal’s decisions are limited to situations where the parties can demonstrate that the Tribunal breached its own rules resulting in a situation of a serious breach affecting the result. Appeals lie from the new Ontario Land Tribunal to the Divisional Court. The Ontario Land Tribunal however has been given the right to rule on a preliminary basis to dismiss the appeal hearing before the Divisional Court even gets a chance to look at it.

Even more troubling is the fact that in order to launch an appeal, parties are now required to pay a fee of $1,100.00, almost triple the previous fee and triple the fee required to file an action in the Superior Court of Justice.

This blog post was written by Michael Hebert, a member of the Environmental Law team.  Michael can be reached at 613-369-0360 or at michael.hebert@mannlawyers.com.

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