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Bill 245 denies access to justice in land use cases | Rizwan Khan and Burgandy Dunn

Tuesday, April 13, 2021 @ 10:18 AM | By Rizwan Khan and Burgandy Dunn


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Rizwan Khan
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Burgandy Dunn
The ability of the Ontario public to have their voices heard in decisions that affect their community is a fundamental feature of democratic societies. The province’s latest omnibus Bill, 245, Accelerating Access to Justice Act, 2021, threatens this right in the environmental and land use decision-making process.

Bill 245 has implications for the Environmental Review Tribunal (ERT) and the Local Planning Appeal Tribunal (LPAT), two long-standing tribunals that affect local communities when making decisions on whether to approve subdivisions, build waste disposal sites, permit groundwater extraction and determine whether facilities discharging toxic substances should be granted a licence. The decisions made by the ERT and LPAT affect the public beyond just the immediate parties to a hearing.

Most residents and community groups do not participate as formal parties. Instead, they often make oral submissions at hearings without party status. Unfortunately, Bill 245 removes this opportunity and limits residents to written submissions. The bill fails to recognize that public trust and confidence in the outcome of a hearing is significantly enhanced when citizens can verbally express their views.

A person limited to written submissions will not know if the submissions have been read and understood by an adjudicator in the manner intended. The opportunity to speak directly to an adjudicator can serve to address confusion or gaps in information that may not be readily apparent if submissions are confined to writing — oral submissions assure people that they have been heard. Passage of the bill will lead to the loss of an important public participation right that provides both the opportunity to be heard and the feeling that one has been heard. Erosion of this right signals that a fair and effective justice system is only accessible to a select few.

An added troubling impact of the bill is its changes to the number and operation of tribunals. The proposed amalgamation of five tribunals into a single entity, the Ontario Land Tribunal (OLT), would potentially lead to the loss of expertise generally found amongst ERT and LPAT adjudicators. The amalgamation would effectively allow any adjudicator of the OLT, regardless of expertise, to adjudicate matters.

Under the current system, the ERT and LPAT retain their discrete jurisdictions and rules of practice to govern hearings. This independence ensures that adjudicators acquire and retain expertise in environmental or land use matters and become highly knowledgeable in their respective fields. The proposed amalgamation will more than likely result in diminished institutional expertise — a foundational principle of the administrative justice system.

Bill 245 proposes to limit the public’s right to challenge OLT decisions. Recourse to the courts will be restricted to where the OLT breaches its own rules, unless the breach meets the very high bar of resulting in a “substantial wrong that affects the final disposition of a proceeding.” The bill also empowers the OLT to summarily dismiss appeals — long before a hearing — if in the OLT’s opinion an appeal has no reasonable prospect of success.

Bill 245 has broader consequences within the context of recent government measures that have collectively undermined access to justice. For example, the filing fee for commencing an appeal to the LPAT has recently been significantly increased. In July 2020, appeals of an official plan or zoning bylaw amendment were set at $1,100, a little over three times the earlier filing fee of $300. For comparison, this fee is now five times higher than the $229 required to commence a civil action at the Superior Court of Justice. The increased fee serves as a financial deterrence of legitimate appeals from the public, further impairing access to justice.

The erosion of access to justice began two years ago when the province ended funding for the Local Planning Appeal Support Centre. The centre, a free and independent service, was established to help the public on planning matters, make the LPAT process more accessible and lead to a fairer and affordable system. The centre would have played a valuable role in levelling the playing field for ordinary citizens trying to navigate Ontario’s complex land use planning system.

In conjunction with these measures, Bill 245 erodes access to justice and diminishes public confidence in our planning and administrative system.

Rizwan Khan and Burgandy Dunn are counsel with Viridius Lex LLP, lawyers who specialize in environmental and land use planning law.

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