Big changes may be coming soon to Ontario’s Land Tribunals. Bill 245, the “Accelerating Access to Justice Act, 2001”, proposes several major changes to the Land Tribunals in Ontario. Bill 245 is in the third reading and will likely pass soon. Many of the big changes to the land Tribunals system are specific to expropriations. There are, however, two broader changes that will impact all of the Land Tribunals: the creation of the consolidated Ontario Land Tribunal and the new limitations on appeals and judicial review applications.
Firstly, Bill 245 will consolidate all five land tribunals into one “super Tribunal”, the Ontario Land Tribunal. The Local Planning Appeal Tribunal, the Board of Negotiations, the Conservation Review Board, the Environmental Review Tribunal and the Mining and Lands Tribunal will all be combined to create the Ontario Land Tribunal. The practical consequence of this merger is that cases may be decided by slightly less specialized adjudicators. An adjudicator with expertise in geology who has historically heard appeals about mining licenses will now be able to provide recommendations about heritage designations under the Heritage Act.
Secondly, Bill 245 will limit appeal rights and judicial reviews in two ways.
Bill 245 will impact the circumstances in which some appeals are available. The proposed “Ontario Land Tribunal Act” allows parties to appeal the Ontario Land Tribunal’s decisions to the Divisional Court on a question of law with leave of the Court, “unless another Act specifies otherwise”. Essentially, the appeal mechanisms for each different area of law considered by the Ontario Land Tribunal will still generally be included in the statutes that are specific to those areas, at least for now. So far, it looks like the appeal provisions will stay the same in most of the Acts that the Ontario Land Tribunal will interpret and apply, with one marked exception: parties will no longer be able to appeal to the Minister of the Environment if they believe that the Tribunal made a factual error in an appeal under the Environmental Protection Act.
Bill 245 will also impact the grounds that parties can rely on in appeals and judicial review applications. Specifically, section 13(4) of the proposed Ontario Land Tribunal Act limits when parties can rely on a defect in the Tribunal’s procedure on an appeal or judicial review application. The Ontario Land Tribunal’s failure to comply with its own rules will only provide a basis for an appeal if it “causes a substantial wrong that affects the final disposition of the proceeding.”
Though many statutes that establish Tribunals have similar provisions that are meant to prevent appeals based on minor procedural irregularities, section 13(4) of the Ontario Land Tribunal Act is particularly broad. For example, section 13(4) is broader than section 3 of the Judicial Review Procedure Act, both in terms of the procedural defects covered by the provision and the legal standard that the concerned party needs to meet to establish that the procedural defect is a “ground” for appeal or judicial review. Section 13(4) of the Ontario Tribunal Act covers the Tribunal’s general “failure to comply with the rules” and its “exercise of discretion under the rule is a particular manner”, while section 3 of the Judicial Review Procedure Act is limited to “technical irregularities” and “defects in form”. Under the Judicial Review Procedure Act, the concerned party can rely on the procedural defect as a ground for judicial review if they can prove it resulted in a “substantial wrong” or “miscarriage of justice.” The legal standard in section 13(4) of the Ontario Land Tribunal Act is higher: the concerned party needs to prove that the procedural defect caused a “substantial wrong” that actually affected the final outcome of the proceeding. Essentially, the practical consequence of section 13(4) of the Ontario Land Tribunal Act is that it will be much harder for parties to appeal based on defects in the Tribunal process.