Introduction
The Ontario Bar Association (“OBA”) appreciates the opportunity to provide input regarding the Recommendation proposed in the Auditor General’s Performance Audit of the Ontario Land Tribunal (“OLT”).1 We provide comments on the potential identification and creation of formal written guidance to enhance the general consistency and transparency of the OLT’s decision-making process.
Ontario Bar Association
Established in 1907, the OBA is the largest and most diverse volunteer lawyer association in Ontario, with close to 16,000 members, practicing in every area of law in every region of the province. Each year, through the work of our 40 practice sections, the OBA provides advice to assist legislators and other key decision-makers in the interests of both the profession and the public and we deliver over 325 in-person and online professional development programs to an audience of over 20,000 lawyers, judges, students, and professors.
This submission was prepared and reviewed by members of the OBA’s Municipal Law section which has over 200 lawyers who are leading experts in municipal and land use planning law matters representing proponents, municipalities, residents, developers, and other stakeholders. Members of the section often advocate before municipal councils and committees, all levels of court across Ontario and various tribunals, including the OLT.
Comments & Recommendations
The Independent Auditor’s Report (“the Report”) proposed the potential identification and creation of formal written guidance to enhance the general consistency and transparency of the OLT’s decision-making process. Notably, the Report highlighted that, to date, the OLT “has not established guidance with key considerations on how adjudicators can determine the appropriateness of the proposed developments, and interpretations of key principles, such as “good planning” and “public interest” used in its decisions.”2
The OBA applauds the OLT for considering initiatives to enhance the consistency and transparency of their decision-making process. However, we respectfully recommend that the Tribunal refrain from the creation of formal written guidance on key principles, for the reasons set out below. Instead, we suggest that the OLT consider the creation of public-facing documents that address key procedures rather than principles. For example, information to support individuals in understanding how to file an appeal, how to “get to” the OLT, costs, participant rights under mediation, party status requests etc.
Written Guidance Is Unlikely to Support the Interpretation of Principles
The Report identifies three principles with respect to which formal written guidance is suggested to support the consistent interpretation of the provincial land use planning framework. Specifically,
- “Good planning;”
- “Public interest,” and
- Key considerations when determining the appropriateness of the type and scale of proposed developments.
Regarding the first two principles, we question whether formal written guidance would, in practice, achieve its intended utility. Both “good planning" and "public interest” are context-dependent and must be assessed in light of case facts, evolving case law, evidence, and local circumstances before the Tribunal. Thus, formal guidance would have to be broad enough to capture the varying fact-specific considerations of cases and would consequently offer little practical value.
Similar concerns arise with guidance on “key considerations when determining the appropriateness of the type and scale of proposed developments.” In practice, such assessments are planning determinations that depend on the facts of the proposal, necessary context, planning policies, and expert evidence. Thus, it is respectfully unclear on how general guidance would assist in these variable, fact-specific assessments.
Lastly, the consultation paper lists “shall be consistent with” and “shall conform with/to” as additional examples of terms that may warrant formal written guidance. In our view, these are statutory tests and their interpretation and application require the consideration of unique facts, evolving case law, and evidence. Respectfully, these are not determinations that can be reduced to a fixed formula; rather, they require a holistic assessment of the proposal in light of the applicable legislative and policy framework.
In sum, while the OBA applauds efforts to improve transparency and public understanding of the Tribunal’s process, we do not believe formal guidance on the aforementioned principles would, in practice, achieve those objectives. Their determinations are dependent on the specific facts of a particular case and professional evidence, both of which would be impossible to capture in broad formal guidance.
The OLT’s Unique Legislative Considerations
The consultation paper notes the Landlord and Tenant Board (“LTB”) and the Immigration and Refugee Board (“IRB”) as examples of tribunals that provide formal interpretative guidance. Notably, the guidance documents of the IRB and LTB carry significant interpretive weight.
Respectfully, while these examples are informative, they are not directly comparable to the OLT. Given the evolving nature of the Planning Act,3 which is frequently amended, formal guidance risks becoming quickly outdated and may invertedly constrain interpretations that ought to be informed by legislation and case law.
With that in mind, although the OBA recommends that the OLT refrain from providing the subject guidance, if the OLT proceeds with such initiatives it is essential that the guidance is monitored, updated, and flagged to the public, to ensure it reflects the evolving nature of the Planning Act and is not outdated.
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The OBA would be pleased to discuss this further and answer any questions that you may have.
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1. Ontario Land Tribunal, Annual Report 2024: Ontario Land Tribunal (Toronto: Office of the Auditory General or Ontario, 2024), online: <Ontario Land Tribunal> [Annual Report].
2. Ibid.
3. Planning Act, RSO 1990, c. P.13