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| Brian Cook |
That system has been gradually transformed into a system where citizens and community groups have no right to oppose proposed development projects or meaningfully participate in the hearing process. If a municipality denies a developer’s proposal, the developer has a full right of appeal, with some limited exceptions. If a developer appeals to the OLT, a ratepayer’s group can seek participant or party status as described below. However, if a municipality allows a development proposal, the public’s ability to challenge the decision before the Ontario Land Tribunal is now significantly curtailed. These changes can be seen as part of the provincial government’s determination to fast-track the interests of developers over the right of citizens to participate in land use decision-making. These have included the Greenbelt debacle and extensive use of the minister’s Zoning Orders that override planning decisions by municipalities and from which there is no appeal.
In this piece, Tribunal Watch Ontario identifies how these changes occurred and what they mean for access to justice. Spoiler alert: This story does not have a happy ending from an access-to-justice perspective, except perhaps for developers.
History
In early 2018, shortly before the provincial election in September of that year, the then-Liberal government made changes to the planning and environmental tribunal system. The Ontario Municipal Board (OMB) was renamed the Local Planning Appeals Tribunal (LPAT). LPAT, the Environmental Review Tribunal, the Board of Negotiation, the Conservation Review Board and the Mining and Lands Tribunal were “clustered” under the Environmental and Land Tribunal Ontario (ELTO). Reporting to an Executive Chair, each tribunal had its own Associate Chair, and they continued as separate tribunals.
Environmental Defence, a leading environmental advocacy organization, described the changes in the following terms:
The new rules are designed to make the LPAT more democratic and citizen-friendly by giving municipalities more control over decision-making. Further, the tribunal will explain the process to people involved in an appeal to level the playing field between developers, municipalities and residents…. These changes should make hearings less adversarial, cheaper, and bring a better power balance between developers, municipalities, and residents.
The appeal rights of citizens were supported by the creation of the LPAT Support Centre, which could provide advice for citizens who wanted to participate in an appeal process.
None of this lasted very long. The September 2018 election, which brought the Progressive Conservatives to power, occurred only a few months after the reforms introduced by the Liberal government. The LPAT Support Centre was disbanded shortly afterwards.
Loss of expertise
The new government refused to reappoint many members of the planning and environmental tribunals who had been appointed by the previous government. Members with an environmental law background were particularly targeted. New appointees predominantly had a development industry background.
Clustering and merging
In 2019, the new Progressive Conservative government “clustered the clusters” by the creation of Tribunals Ontario, which brought together the ELTO cluster with other clusters of adjudicative tribunals.
In July 2020, the ELTO tribunals were removed from Tribunals Ontario and merged into one tribunal — the Ontario Land Tribunal (OLT). This meant that there were no longer specialized environmental and land use tribunals. Marie Hubbard was appointed as the Chair of the OLT at age 84. According to an investigation by the online news organization The Trillium, under her leadership, experienced adjudicators complained of a toxic workplace and the deepening of a culture change that favoured approving development over a fair hearing process.
Participation in hearings
The somewhat ironically named Accelerating Access to Justice Act, 2021 further reduced the right of non-parties to participate in most land use appeals. Previously, citizens and community groups could be involved in an appeal as a “participant” or a “presenter.” As a participant or presenter, an individual or residents’ group could make a presentation at the hearing, and upon request, receive documents exchanged by the parties that were relevant to their interests. These long-standing public participation rights for participants and presenters no longer exist.
There is no longer any ability to become a presenter at a hearing. Citizens and community groups may still obtain “participant” status, but “participants” can now only provide written submissions. Individuals and groups with participant status can no longer participate in the hearing by giving an oral presentation to the Ontario Land Tribunal.
The right of citizens and community groups to fully participate in a hearing is now restricted to those who become “parties” in an appeal. However, this is generally a very expensive proposition as it often involves retaining lawyers and experts. Furthermore, at the conclusion of the appeal an unsuccessful “party,” unlike a “participant” or a “presenter,” could also face the risk of a cost award.
Although the OLT rarely awards costs, there have been instances where costs have been awarded. In one notable case, the costs awarded were over $100,000. This has a chilling effect on anyone thinking of participating as a party. The threat of having to pay costs could also cause a party to agree to a settlement on less favourable terms than might otherwise have happened. Participation was also discouraged by the very low success rate for citizens and community groups. In a September 20, 2022 report, The Hamilton Spectator examined decisions made by the OLT from January to September 2022 and found that out of 178 decisions released by the OLT in 2022, only six have gone against developers.
In June 2024, access to justice was further restricted as a result of Bill 185, Cutting Red Tape to Build More Homes Act. The right of citizens and community groups to be a party to an appeal was further restricted. Members of the public can still seek party status at a developer’s appeal as long as the person made oral submissions at a public meeting or made written submissions to the council about the development. However, Bill 185 prevents members of the public from appealing a development to the OLT where the municipality approves the development.
The Canadian Environmental Law Association told the Toronto Star: “This is the loss of an important mechanism for the public to make sure that environmental and public health concerns were raised and properly considered in development decisions across the province. It’s really a problem to cut out active engaged citizens, who deeply care about their communities, from the equation.”
We will leave to others the question of whether this gradual erosion of the ability of people and organizations other than developers and municipalities to participate in land use and environmental issues has actually resulted in more affordable housing in Ontario, which is the stated goal of Bill 185. What we can say is that there has been a significant loss of access to justice and public participation rights for Ontarians wanting to challenge land use planning and environmental decisions. It may be hoped that in the future these rights will be restored, leading to a happier ending to this sad story
Brian Cook is the co-ordinator of Tribunal Watch Ontario.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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