On Friday, October 13, 2023, revisions to Part II of the Ontario Land Tribunal’s (the “Tribunal”) Rules of Practice and Procedure (the “Rules”) became effective; however, we are cautiously optimistic that the only unlucky thing about these revised rules is the release date.
Part II of the Rules governs proceedings under the Expropriations Act and the revisions propose to streamline practices and procedures by facilitating active case management and encouraging the use of mediation.
A summary of the significant amendments is as follows, which will be expanded on further below:
- Both a claimant and a respondent may request mediation at any stage in the proceeding. Previously, this could only occur prior to the service of pleadings;
- The Tribunal can request the parties to confer regarding the potential of using mediation to resolve or narrow a claim;
- Appraisal reports to be relied upon are required to be served 15 days prior to examinations for discovery, unless the Tribunal orders otherwise; and
- The parties are required to notify the Tribunal in writing within 30 days following a party’s acceptance of an offer of settlement made by the other party.
Encouragement to Use Mediation
Amended Rule 26.4 (formerly Rule 26.2), revised the definition of “Expropriation Mediation Request” (formerly “Request to Negotiate”) so that either the claimant or respondent may request the Tribunal to mediate a dispute over the compensation payable under the Expropriations Act and this is not required to occur “prior to the exchange of pleadings”, which was previously the case. New Rule 26.5 makes this clearer by expressly stating that a claimant or respondent may file an Expropriation Mediation Request at any stage of a proceeding under the Act, including both before and/or after the service of pleadings. As a result, there are more opportunities for parties to engage in mediation.
The revised Rules encourage parties to confer and discuss whether mediation would be appropriate to resolve all or parts of the issues in a claim. While the Tribunal has the authority to direct that mediation occur at any time under section 16 of the Ontario Land Tribunal Act (the “OLT Act”), the Tribunal generally does not use this power in cases where parties do not believe that mediation would be of assistance. Instead, Rule 26.6 was introduced to permit the Tribunal to, at any stage of a proceeding, direct the parties to discuss participating in mediation and Rules 26.7 to 26.10 were introduced to set out an express process for such direction and discussion. The process is as follows:
- The Tribunal first gives notice to the parties of its Rule 26.6 direction;
- Within 15 days of receiving notice, the parties must file written submissions to the Tribunal which either (a) propose to schedule mediation or (b) indicate the reasons why the party believes that holding a mediation would be unlikely to result in the resolution of all or part of a claim.
- The Tribunal considers the submissions and may direct the parties to participate in mediation pursuant to Rule 18, schedule a case management conference pursuant to Rule 19 or order otherwise as the Tribunal deems appropriate. The Tribunal’s direction in this circumstance is final and not subject to review under Rule 25 or section 23 of the OLT Act.
- Should the Tribunal direct that mediation occur, upon notice to the Tribunal, the claimant or respondent may terminate the mediation and proceed to resolve the dispute over the compensation payable under the Expropriations Act by filing the pleadings within the relevant statutory claim period. The Tribunal may also, upon notice at any time, terminate the mediation for any reason, including failure of the claimant or respondent to comply with Tribunal direction.
- Following the termination of the mediation, the Tribunal may issue any directions to the parties as it deems appropriate, including requiring the filing of applicable pleadings, scheduling a case management conference, establishing the terms of the procedural order and scheduling dates for arbitration.
Appraisal Reports to be Served Prior to the Discovery
In the past, appraisal reports were required to be served 15 days prior to the hearing (former Rule 26.16). New Rule 26.21 requires parties to serve appraisal reports 15 days prior to the discovery. The Tribunal may vary such requirement by ordering “otherwise”, with the understanding that reports may be updated before the hearing to reflect any increases in losses and damages since the date the report was served. The Tribunal has indicated that the purpose of this revision is also to encourage settlement as it ensures that all cards are on the table at an earlier stage in the proceedings. Should a party request relief of this requirement, it may do so by way of a motion to the Tribunal justifying why such relief is required. It is anticipated that this would be by way of written motion.
Acceptance of Settlement Offer
The parties are now required to notify the Tribunal in writing within 30 days following a party’s acceptance of a settlement offer made by the other party. Upon the payment of compensation due under the settlement, and subject to the determination of costs and interest under the Expropriations Act, the Tribunal may close its file.
Other Administrative Revisions
Rule 26 was further updated with minor revisions, including the addition of a definition for a “claim”, the requirement to file proof of service of pleading materials within 10 days of the date of service in electronic form and new Rules 26.2 and 26.3 which expressly state that Part I of the Rules applies with necessary modifications (26.2) and that, subject to the Tribunal’s discretion under Rules 1.4 and 1.6, the Rules of Civil Procedure apply to Tribunal proceedings under the Expropriations Act where these Rules do not provide for a matter of procedure (26.3).
Davies Howe LLP is excited to see how these revisions to the rules impact the expropriation process. If you have any questions, feel free to reach out to one of the members of our team:
Ava Kanner, ava@davieshowe.com
Robert Miller, bobm@davieshowe.com
Mark Flowers, markf@davieshowe.com
Andrew Valela, andrewv@davieshowe.com
Grace O’Brien, graceo@davieshowe.com
Liam Valgardson, liamv@davieshowe.com
Simone Stewart, simone@davieshowe.com
