On August 20, 2024, the Ontario Land Tribunal (“OLT” or “Tribunal”) launched consultations on proposed changes to its Rules of Practice and Procedure (the “Proposed Rules”). Consultations ran from August 20 to September 27, 2024. On October 1, the Tribunal announced it was reviewing the feedback received during consultation and would provide further details once that review was complete.
While at time of writing the Tribunal has not provided such details, it is widely expected that any further changes would be minor in nature. The following changes are likely to modernize and streamline procedures before the Tribunal, while providing further clarity to the Tribunal’s authority and jurisdiction in expropriation proceedings.
Introduction of Rules for Expropriation Costs (Rules 26.19 to 27.27)
The biggest change is the proposed addition of nine rules pertaining to expropriation costs under Section 32 of the Expropriations Act. Specifically, the Proposed Rules would allow both claimants and respondents to file a request “to determine expropriation costs” by the Tribunal. The goal of the changes is to “make the process more efficient and accessible”.
The Proposed Rules would also codify the Tribunal’s ability to assess expropriation costs. As proposed, a request for costs would be brought following either the hearing by the Tribunal, or a settlement of compensation and damages but not the costs payable by the expropriating authority. Requests for expropriation costs are proposed to be filed in writing and considered and disposed of by the Tribunal in writing, unless a party has satisfied the Tribunal that this would cause significant prejudice.
Changes have also been proposed for definitions related to Expropriation Proceedings, via the addition of definitions for “application” and “expropriation costs”. In particular, the term “Notice of Arbitration” is proposed to be deleted entirely from the rules and replaced in most instances with the term “Application”.
Codification of Dismissal of Proceeding without a Hearing (Rule 15.4)
The Ontario Land Tribunal Act (“OLT Act”) has always allowed parties to file a motion to dismiss a proceeding without a hearing, and for the Tribunal on its own initiative to so dismiss a proceeding. The Proposed Rules would codify the provision allowing for parties to file such motions to reflect accepted practice. Alongside this change, the Proposed Rules would also codify provisions within the OLT Act which specify the grounds on which a proceeding can be dismissed without a hearing. The newly added grounds include instances where: the party who brought the proceeding has not paid any fee required by the OLT; the party who brought the proceeding has not responded to a request for more information from the Tribunal within a specified time frame; the Tribunal is of the opinion that the proceeding has no reasonable prospect of success; or, any circumstances provided under any Act.
The Proposed Rules would also maintain the current list of grounds for dismissal without a hearing. These grounds are drawn from subsection 4.6(1) of the Statutory Powers Procedure Act and include: where a proceeding is frivolous, vexatious or is commenced in bad faith; where the proceeding relates to matters that are outside the jurisdiction of the Tribunal; or, where some aspect of the statutory requirements for bringing the proceeding has not been met.
Lastly, the Proposed Rules would change the timeframes for parties to respond to a notice of the intended dismissal. The Rules currently prescribe a response time of seven days, as outlined in Rule 10. The Proposed Rules would instead provide a response time as directed in the notice of dismissal.
Tribunal Decision or Order Review (Rule 25)
Rule 25, which covers the review of a Tribunal Decision or Order is proposed to be modified in two ways. First, the Proposed Rules would ensure that requests for review and supporting materials are served on all parties (but not participants) to the original hearing event. Second, the Proposed Rules restrict parties who are served such requests from responding, “until and unless” directed by the Tribunal.
Parties (Rules 8.1 – 8.3)
The Proposed Rules would require those granted party status to participate fully in a proceeding, rather than being given the option to participate. The Tribunal has not indicated what “full” participation consists of. Furthermore, instances where a substitution of parties is allowed would be expanded from instances where a party satisfies any relevant legislative tests to instances where there are any “reasonable grounds to do so.” The Proposed Rules would continue to allow the Tribunal to add parties to a proceeding provided that the parties both meet the relevant legislative tests and there are “reasonable grounds” for their addition.
Lastly, the ability for non-appellant parties to introduce issues to a Tribunal proceeding would be further restricted. Where the current rules restrict new issues being raised by such parties on appeals of official plan and zoning by-law amendments, the Proposed Rules would further restrict issues being raised on appeals of community benefits charge by-laws, parkland dedication by-laws, and development charge by-laws. Further, the Proposed Rules would remove the ability for non-appellant parties to continue any appeals which have been withdrawn by an appellant party.
Other Small Changes to Streamline Proceedings
In addition to the changes noted above, the Proposed Rules would make select technical changes to help streamline proceedings. First, the requirement in Rule 18.2, that mediators be approved by the Ministry of the Attorney General, would be removed so that approval is only required from the Tribunal Chair. Private mediators would continue to be funded by parties to an appeal and not by the Tribunal.
Second, the requirement for a list of documentary evidence to be provided as part of a notice of motion or notice of response to a motion is proposed to be removed from Rules 10.4 and 10.6. Instead, the accompanying affidavits would be required to include such exhibits.
Lastly, select changes to Rule 21.1, which allows hearings to be conducted through written submissions, would ensure that participants, as well as parties, are provided with notice of a written hearing.
Introduction of new e-filing Portal and Filing Requirements (Rule 5.4)
Alongside the Proposed Rules, the Tribunal has launched a new e-file portal (the “Portal”) to simplify file management procedures. The Proposed Rules specify that where an appeal record or municipal records are to be forwarded to the Tribunal by a municipality, the municipality is now required to forward the records using the Portal, unless directed otherwise.
As of writing, the Portal itself specifies that only appeals filed with the following approval authorities may be filed through the Portal:
- Brock (Township of)
- Caledon (Town): Clerk
- Durham (Regional Municipality of)
- Guelph (City of)
- Hamilton (City) – Committee of Adjustment & Consent Authority
- Innisfil (Town of)
- Markham (City): Clerks Department
- Middlesex Centre (Municipality): Clerk & Secretary-Treasurer
- Newmarket (Town of)
- Mississauga (City): Clerk and Secretary-Treasurer
- Ontario Land Tribunal
- Powassan (Municipality of)
- Whitby (Town): Clerk
Conclusion
While the changes discussed herein have not yet been adopted, many of them, such as those to expropriation costs, e-filing requirements, and approval of private mediators, are uncontentious and would help to streamline and modernize the Tribunal’s proceedings. More contentious changes are those proposed regarding party expectations, restrictions to non-appellant party roles, and limitations on responses to requests for review.
As we discussed in a previous article for the Ontario Bar Association in May 2024, the desire to streamline proceedings by restricting participatory rights may arguably curtail legitimate concerns held by non-appellant parties in Tribunal proceedings, or redirect such concerns to the Courts via judicial review. It remains to be seen whether such concerns are addressed by the Tribunal before the Proposed Rules are adopted.
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