Bill 23 – Part 3: New Powers for the Ontario Land Tribunal

*Originally posted on November 1, 2022, updated on November 30, 2022.

On October 25, 2022, the Province introduced Bill 23, More Homes Built Faster, 2022, which received royal assent on November 28, 2022. The Bill was referred to the Standing Committee on Heritage, Infrastructure and Cultural Policy (the “Committee”) on October 31, 2022 and subsequently amended. The below blog has been updated to reflect these amendments.

This is Part 3 of Davies Howe LLP’s Bill 23 blog-series, which focuses on the changes to the Ontario Land Tribunal Act, 2021 (the “OLT Act”).

The OLT Act governs the process and procedures of the Ontario Land Tribunal (the “Tribunal”), which plays a critical role in Ontario’s land use planning system. It is thus not surprising that Bill 23 introduced various amendments to the OLT Act itself.

New Powers for the Tribunal to Dismiss Appeals Without Hearings

Currently, on a motion of a party or on its own initiative, the Tribunal may dismiss a proceeding without a hearing (subject to notice requirements) if:

1. The party who brought the proceeding did not pay the required fees;
2. The party did not respond to a request by the Tribunal for further information;
3. The Tribunal is of the opinion that the proceeding had no reasonable prospect of success;
4. The Tribunal is of the opinion that the proceeding is:
   1. Frivolous, vexatious or commenced in bad faith;
   2. Relates to matters outside the Tribunal’s jurisdiction; or
   3. Some aspect of statutory requirements for bringing the proceeding has not been met; and
5. In any other circumstance provided for under any Act.

On a date to be proclaimed by the Lieutenant Governor in Councillor (“LG”), the following additional grounds for the Tribunal to dismiss a proceeding will come into effect:

1. If the Tribunal is of the opinion that the party who brought the proceeding has contributed to undue delay.
2. If the Tribunal is of the opinion that a party failed to comply with an order of the Tribunal in the proceeding.

These new powers are evidence of Provincial direction to ensure that Tribunal proceedings proceed expeditiously and in an organized fashion.

Direction to Award Costs

The Tribunal is currently permitted to order a party to a proceeding to pay costs in accordance with its rules but does so cautiously and sparingly. On a date to be proclaimed by the LG, an additional subsection to the OLT Act will become effective that expressly states the Tribunal has the power to order an unsuccessful party to pay a successful party’s costs. The Province has indicated that the purpose of this amendment is to encourage parties to reach an agreement without going to the Tribunal.

Expanded Regulation-Making Authority

Bill 23 expanded the LG’s regulation-making power to permit it to make regulations requiring the Tribunal to prioritize the resolution of specified classes of proceedings. These classes of proceedings will be specified by regulation. This change will also become effective on a day to be proclaimed by the LG. The Province has indicated that they intend to prioritize OLT proceedings which create the most housing. The proposed Regulation will be developed after consultations with affected ministries.

Bill 23 also clarified aspects of the Attorney General’s (the “AG”) regulation-making power with respect to regulations regarding the governing practices and procedures of the Tribunal. The amendment specifies that the AG may also make regulations prescribing service standards with respect to Tribunal case resolution (i.e., specified timing and steps). Once drafted, the proposed new Regulation will be posted on the Regulatory Registry for consultation.

If/when these timelines are prescribed by the AG, and the Tribunal fails to comply with such prescribed timeline, this does not invalidate the proceeding nor can it be grounds for an order or decision of the Tribunal to be set aside. However, the AG may request that the Tribunal report to the AG regarding compliance (or lack thereof) with the prescribed timelines.

Other Initiatives

The Province has also indicated that it will invest in more adjudicators and other resources to permit the Tribunal to speed up proceedings, resolve cases faster, hear priority projects sooner and reduce the number of outstanding cases so that more housing can be created.

Conclusion

If you wish to discuss how these changes may impact your current or future Tribunal-proceeding, please do not hesitate to contact the team at Davies Howe LLP.

The next blog-series, Part 4, will outline the changes to the Ontario Heritage Act.