Farewell LPAT, we hardly knew ye.
On June 1, 2021, select changes from Ontario’s omnibus Bill 245, the Accelerating Access to Justice Act, took effect. Among these changes is the amalgamation of the Local Planning Appeal Tribunal (“LPAT”), the Board of Negotiation, the Conservation Review Board, the Environmental Review Tribunal and the Mining and Lands Tribunal, into a single new body, the “Ontario Lands Tribunal” (“OLT”), pursuant to the Ontario Land Tribunal Act, 2021.
The Province first announced this decision and circulated a draft set of Rules of Practice and Procedure (the “Rules”) in January 2021. After receiving public submissions, the Rules that will govern the amalgamated Tribunal have been finalized. Notable changes to the procedures include:
New Focus on Cost Effectiveness and Efficiency
The OLT was introduced to eliminate overlap between cases, streamline the hearing process and to find efficiencies in tribunals’ specialized areas of adjudication and mediation expertise. The Rules build on these principles immediately by stating in Rule 1.3 that they are to be liberally interpreted to offer the best opportunity for a fair, just, expeditious, and (now) cost effective resolution of the merits of the proceedings.
To this extent, multiple time-saving processes have been introduced by the Rules into the OLT’s procedure. Among these are Rule 2.2, which introduces an Alternate Chair, who may perform the duties of the Chair and has all powers of the Chair in cases where the Chair is unable to act. Rule 5.1 removes the requirement to provide applications, appeals or referrals in hard-copy, instead calling for submission in electronic format, unless directed by the Tribunal otherwise. This likely goes hand in hand with the OLT’s new online document submission platform. Further, while new practices for electronic hearings have already been introduced, the Rules’ continued focus on these procedures suggest that these will also be used post-COVID.
Rule 19.2 mandates parties to present a draft procedural order prior to a case management conference (“CMC”). While this was already standard practice of the LPAT in many cases, this practice is now explicitly codified within the Rules, thus further expediting the hearing process, and streamlining the CMC process.
Renewed Focus on Mediation
Both the former Ontario Municipal Board and LPAT have been criticized for not having a procedure or framework for non-Tribunal members to conduct public mediations. This has led to significant time and cost delays as the timing of mediations depended on the Member’s scheduling, and often led parties to seek private mediation thereby increasing their legal costs.
The Rules have changed this process by allowing Tribunal-led mediations to be conducted by an approved external mediation service. Mediation assessments may also be conducted by external mediators approved by both the Chair and the Ministry of the Attorney General. Thus, the pool of public mediators available to OLT participants has been expanded. While the OLT Rules do not go as far as Rule 24.1 of the Rules of Civil Procedure (which mandates mediations in certain regions before a hearing can even occur), this change supports the promotion and facilitation of the mediation process.
Blurring of Notice Period Requirements
Rule 6.4, which set out different notice periods per type of planning appeal, has been removed, and new Rule 6.1 simply states the notice period will be directed by the Tribunal. While this change gives the Tribunal flexibility to set notice periods appropriate to the circumstances, it provides less certainty for municipalities, appellants, and the public to understand in advance how much notice they will be required to give, or will receive, prior to a hearing event.
Impartiality of Expert Witnesses
Another notable change in the Rules is an express provision in Rule 7.5 regarding the impartiality and professionality of expert witnesses. Expert witnesses that are giving oral evidence in examination in chief, under cross examination or while in reply, cannot seek or receive assistance or communication, except technical support, from third parties. This express Rule attempts to ensure that expert witnesses (and third parties) understand their professional duties when an expert is testifying in front of the Tribunal. This recognition was introduced into the Acknowledgement of Experts Duty forms when the LPAT went virtual post-COVID and is now codified in the new Rules.
The team at Davies Howe LLP will continue to monitor legislative and regulatory changes as they relate to land use planning and development.
