ELTO Annual Report 2017/18

June 29, 2018

The Honourable Caroline Mulroney
Attorney General of Ontario
Ministry of the Attorney General
11^th Floor, 720 Bay Street
Toronto, Ontario 
M7A 2S9

Dear Attorney General Mulroney:

Re: Environment and Land Tribunals Ontario 2017-18 Annual Report

On behalf of Environment and Land Tribunals Ontario, it is our pleasure to submit to you our 2017-18 Annual Report.  This report reflects the cluster’s activities for the fiscal year ending March 31, 2018.

Environment and Land Tribunals Ontario is committed to delivering the initiatives outlined in this report, implementing our strategic framework as outlined in our 2018-19 to

2020-21 business plan, and providing high-quality services to the people we serve.  

We look forward to working with your ministry in the upcoming year.

Yours Sincerely,      
                                                           

Jerry V. DeMarco                                                                       Ellen Wexler
Executive Chair                                                                         Executive Lead
Environment and Land Tribunals Ontario                                 Environment and Land Tribunals Ontario

I am pleased to submit the 2017-18 Annual Report for the fiscal year ending on March 31, 2018, on behalf of the members and staff of Environment and Land Tribunals Ontario (ELTO).

As my appointment began on April 3, 2018, just after the end of the fiscal year, the accomplishments identified here are the result of the team led by my predecessor, Dr. Bruce Krushelnicki.  Thanks to his leadership over the last two and a half years, ELTO has thrived, connected with stakeholders in new ways, undergone many positive changes and been recognized internationally for best practices in a report on environmental courts and tribunals. 

Last year, ELTO engaged with stakeholders across the province on a variety of issues.  For example, members and staff of the Assessment Review Board (ARB) participated in 30 stakeholder and outreach meetings, conferences and forums as part of the implementation of the ARB’s new practices.  Based on stakeholder feedback, the ARB created a new Appeals Management Advisory Committee to assist with developing and implementing policies, practices and procedures to resolve appeals more efficiently.    

Similarly, representatives from the Ontario Municipal Board (OMB), which as of April 3, 2018, is known as the Local Planning Appeal Tribunal (LPAT), spoke at conferences and other stakeholder meetings about the impacts of  Bill 139, Building Better Communities and Conserving Watersheds Act, 2017.  During these sessions, valuable input was gathered that helped update the new tribunal’s practices and rules. 

Engaging with stakeholders provides us with useful feedback and helps us continuously improve as a public service organization.  I want to thank all those who took the time to engage with us as we sought to enhance our ability to provide efficient and effective dispute resolution services.  Our processes are better because of the input provided to us by stakeholders. 

Given the nature of ELTO’s work, what we do not only affects our stakeholders, but also the public.  We redesigned our website to provide the public with additional resources.  We also distributed client satisfaction surveys to gather feedback on our services and will be doing this again in the next year. 

ELTO’s existing tribunals worked hard last year, providing decisions in over 26,000 cases.  For the fourth consecutive year, the Conservation Review Board (CRB) saw an increase in the number of cases received.  Despite this increase, the CRB continued to facilitate settlements in the majority of its cases and achieve its performance targets for the issuance of orders and reports.  The Board of Negotiation undertook a special initiative to clear long-standing inactive cases.  As well, the Environmental Review Tribunal (ERT) updated a number of its plain-language guides to help everyone better understand the ERT’s appeal processes.

In addition to these successes and innovations, we have also seen significant changes to some of the boards and tribunals of ELTO.  Just after the fiscal year ended, we welcomed a new tribunal – the Mining and Lands Tribunal (formerly the Office of the Mining and Lands Commissioner) – to the ELTO family and saw the historic transition of the OMB to LPAT.  As part of these changes, we celebrated the many accomplishments of these two tribunals from the past 100 plus years. 

To ensure that cases continue to be heard and resolved promptly, ELTO undertook an ambitious and proactive recruitment process for various positions at the boards and tribunals in the past fiscal year.  Thanks to this, we were able to secure highly qualified new part-time and full-time members and vice-chairs to complement our existing roster of appointees. 

Finally, I wish to thank all past and present ELTO staff and members for their professionalism and dedication in tackling the recent transformational changes at ELTO.  I am grateful for their outstanding work in delivering our mandate of resolving disputes in a manner that supports strong, healthy communities and the public interest. 

Sincerely,

Jerry V. DeMarco

Executive Chair

Executive Lead’s Message

At Environment and Land Tribunals Ontario (ELTO), we are always striving for improvements to how we do our work and how to best serve the public, and I continue to be impressed by the ongoing efforts of staff and members.

This past year we experienced transformational change that saw the former Ontario Municipal Board (OMB) become the Local Planning Appeal Tribunal (LPAT).  LPAT staff and managers worked diligently to put in place systems and processes to meet new legislated timelines for the resolution of appeals under the Planning Act.  Similarly, the Board of Negotiation made process improvements to avoid delays, including ensuring that more complete materials are filed before mediations are scheduled.  More process changes are on the horizon since we recently welcomed the Mining and Lands Tribunal to the ELTO family.

We are continuing to modernize our dispute resolution systems, and as a cluster, we strive to provide information through a variety of channels.  In early 2018, we hosted three live webcasts to help inform clients and stakeholders about the OMB’s transition to LPAT.  The videos have since been uploaded to our website and are available as a resource to all. 

The Assessment Review Board has been developing an electronic hearing file system and will pilot this in the upcoming year.  And both the Environment Review Tribunal and the Conservation Review Board are preparing to launch electronic members’ manuals to make it more convenient for members to access resources.  These innovations improve our ability to serve our stakeholders and the citizens of Ontario.

These changes would not be possible without the work of ELTO members and staff.  I want to take this opportunity to thank the Associate Chairs, members and staff for your support and patience as we navigated changes.  I look forward to continuing to work together and having another productive year. 

Sincerely,

Ellen Wexler
Executive Lead

About ELTO

Due to legislative changes that came into effect just after the end of the fiscal year, Environment and Land Tribunals Ontario (ELTO) is now comprised of six tribunals and boards.  ELTO resolves disputes related to land use planning, environmental and heritage protection, property assessment, land valuation, mining and other matters. Created in 2010, ELTO was the first cluster of tribunals created under the authority of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 (ATAGAA).  This act permits the government to designate two or more adjudicative tribunals as a cluster if, in the opinion of the Lieutenant Governor in Council, the matters that the tribunals deal with are such that they can operate more effectively and efficiently as part of a cluster than alone.

The boards and tribunals which make up ELTO today are:

• Assessment Review Board (ARB)
• Board of Negotiation (BON)
• Conservation Review Board (CRB)
• Environmental Review Tribunal (ERT)
• Local Planning Appeal Tribunal (LPAT), formerly known as Ontario Municipal Board (OMB)
• Mining and Lands Tribunal (MLT), formerly known as Office of the Mining and Lands Commissioner (OMLC)

The boards and tribunals hold proceedings throughout the province and promote the resolution of disputes using a variety of dispute resolution methods.  They conduct formal hearings on the merits of the case, pre-hearings, motion hearings and mediation sessions.  The tribunals process the files from intake, through to a hearing if required, and issue decisions, orders and recommendations resulting from settlements, hearings and mediations.

Structure

ELTO is led by an Executive Chair, who also assumes the powers, duties and functions legislatively assigned to the chair of each constituent tribunal.  While under the leadership of the Executive Chair, each tribunal maintains its legislative mandate and remains independent in its decision-making. 

Accountability

The Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009  was enacted to ensure that tribunals are accountable, efficient and transparent in their operations while remaining independent in the decision-making process.

Public Accountability Documents:

• Mandate and Mission Statement
• Service Standard Policy
• Consultation Policy
• Ethics Plan
• Code of Conduct
• Conflict of Interest Rules
• Position Descriptions

Governance Accountability Documents:

• Annual Reports
• Business Plans
• Memorandum of Understanding

ELTO’s Strategic Framework

Mandate Statement

Environment and Land Tribunals Ontario (ELTO) is a cluster of six tribunals that effectively and efficiently resolve disputes related to land use planning, environmental and heritage protection, property assessment, land valuation, mining and other matters.

Mission Statement

We deliver modern, fair, responsive, accessible, effective and efficient dispute resolution services that support strong, healthy communities and the public interest.

Vision

We are focused on serving the interests of the people of Ontario and committed to excellence in the timely, evidence-based resolution of environment and land disputes.

Core Values

The core values at ELTO are the guiding principles of the cluster. These core values form the foundation upon which ELTO’s constituent tribunals fulfill their mandates:

Accessibility

• Publications, communications and facilities, including hearing and mediation rooms, will provide for full and equitable access.
• Diversity will be fully respected and reflected in all that ELTO does.
• Processes will be designed in a way that facilitates informed participation.
• Proceedings will be conducted in a manner which is welcoming and respectful.
• Practices and procedures will provide for a meaningful, effective opportunity to be heard on the relevant issues to be resolved in a particular case.

Consistency and Responsiveness

• Procedures and outcomes will demonstrate consistency while remaining responsive to differing cases, party needs and an evolving development of the law.

Continuous Improvement

• By being proactive in modernizing ELTO, the changing needs of the people of Ontarian will be met.

Fairness

• Proceedings will be conducted
• Decisions will be principled and based on the facts, the applicable law and policy and on the merits of the case.

Integrity, Professionalism and Independence

• Members and staff will act with honesty, integrity and professionalism, exhibiting the highest standards of public service.
• Members and staff will work together to build public confidence in ELTO, its constituent tribunals and the administration of justice.
• ELTO and its constituent tribunals must be, and be seen to be, neutral, unbiased and independent from improper influence.

Timeliness and Efficiency

• Proceedings will be conducted in a just, expeditious and cost-effective manner, and will be proportional to the issues that must be determined to resolve the dispute.
• Decisions will be issued as soon as possible after a proceeding.

Transparency and Accountability

• Tribunal procedures, rules, policies and decisions will be clear and readily available to the public.
• Reasons for decisions will be concise and will explain how the decision was reached.
• Through the provision of accurate public information, ELTO will be accountable to Ontarians.

Public Engagement and Consultations

As part of its public accountability obligations under the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, Environment and Land Tribunals Ontario (ELTO) consults with the public and its stakeholders to improve its services.  Public engagement and consultation are important to ELTO’s mission of “delivering modern, fair, responsive, accessible, effective and efficient dispute resolution services that support strong, healthy communities and the public interest.”

During the 2017-18 fiscal year, ELTO engaged in a number of outreach and stakeholder activities.  ELTO staff and members spoke at conferences and association meetings throughout Ontario and provided updates on a variety of topics.

The most significant public engagement processes undertaken by ELTO this fiscal year related to Bill 139, Building Better Communities and Conserving Watersheds Act, 2017, which saw the Ontario Municipal Board become the Local Planning and Appeal Tribunal (LPAT).  ELTO staff and members spoke at conferences and other meetings about the impacts of changes brought about by Bill 139 and consulted with stakeholders on what processes and rules would be required to facilitate a smooth transition to LPAT. 

To further support stakeholders and the general public on this transition, ELTO produced webcasts to provide information to a wide audience on the changes to the Board’s rules and dispute resolutions practices.  Presentations on the laws and regulations governing LPAT and associated changes to administrative processes and rules were covered by these webcasts. 

In addition to the formal presentations, the webcasts included hour-long interactive sessions during which participants submitted questions on the web platform to the panel of ELTO staff and members.  After the webcasts, remaining questions were compiled, answered and posted to the ELTO website along with video recordings of the presentations.

More than 1,100 participants registered for the three webcasts, which were scheduled at three different times – morning, afternoon and evening – to make these digital events accessible to stakeholders, individuals and community groups across the province.  Individuals did not need to travel and had the option of logging in through their computers, tablets or cell phones.

Participants included law firms, municipal staff, resident associations and individuals from communities from every corner of Ontario including Windsor, London, Kitchener, Oakville, Brampton, Toronto, St. Catharines, Sault Ste. Marie, Thunder Bay, Kenora, Kingston, Ottawa and many more. Live captioning was also provided and all presentations and webcast transcripts were translated into French.

Through these interactive webcasts, ELTO was able to leverage digital technology in a cost-effective way to engage and educate stakeholders and the general public about important changes to the land use planning process in Ontario.

ELTO’s other major public engagement initiative during the fiscal year related to the Assessment Review Board (ARB)’s ongoing efforts to modernize its dispute resolution processes.  The Appeals Management Advisory Committee (AMAC) was established as a permanent stakeholder consultation committee for the ARB.  AMAC and its sub-group on disclosure are committed to ongoing meetings throughout the next fiscal year as part of ELTO’s commitment to continuing stakeholder outreach.  More details are provided in the Assessment Review Board section starting on page 24.

In addition, ARB staff and members conducted stakeholder and outreach involving organizations and associations from the assessment community including Municipal Property Assessment Corporation, Institute of Municipal Assessors, Canadian Property Tax Association, International Property Tax Institute, National Association Property Tax Attorneys, and the assessment bar.

Diversity, Inclusion and Accessibility

• Reflect the public served at all levels of the ELTO workforce.
• Reinforce a workplace free from harassment and discrimination.
• Embed diversity objectives and outcomes in ELTO policies, processes and services.
• Respond to the needs of diverse stakeholder groups.

• Provide a strong mandate for members and staff to adopt best practices that embed diversity, inclusion and accessibility in the planning and delivery of activities.
• Mentor and develop diversity champions among members and staff.
• Support the ongoing commitment to continuous learning by documenting education, awareness and acceptance of diversity, inclusion and accessibility in performance and learning plans.

Accessible Built Environment and Hearing Space

Accommodation Requests

Administrative and adjudicative protocols are in place to allow for full and meaningful participation of the public where requests for accommodation are made.  ELTO’s members and staff have been trained to recognize and respond to accommodations requests for those who access our services.  All correspondence, invitations to stakeholder consultation meetings, hearing notices and website pages include a note offering accommodation upon request.

For the 2017-18 fiscal year, ELTO’s Accessibility Coordinator played a key role in the receipt, acknowledgement and follow-through on 21 accommodation requests.

Accommodation Requests for ELTO

Accessibility and Diversity Training

Mandatory training in the areas of customer service policy under the Accessibility for Ontarians with Disabilities Act, 2005 (AODA), the Integrated Accessibility Standards Regulation and the Ontario Human Rights Code was delivered to all new members and staff.

ELTO also delivered learning events throughout the year to reinforce the values of respect for diversity and inclusion including:

• Submitting the 2017 AODA compliance report to the Accessibility Directorate of Ontario in accordance with mandatory reporting obligations.
• Providing managers with mandatory Mental Health Training session.
• Attending a two-hour staff seminar which focused on Mental Health and Breaking Down Barriers.
• Beginning work on renewing ELTO’s Accessibility Policy and Multi-Year Accessibility Plan.
• Participating in a working group to make the Agency Resource Centre intranet site AODA compliant.

Accessible Website and Information

Easier to understand and accessible information documents are available in English and French on the ELTO website.  Where web content cannot be made accessible, ELTO provides an active offer of materials in an alternative format.  For members and staff accessibility and diversity resources and tools are maintained on the ELTO intranet site.

Accessible Employment and Hiring Practices

ELTO managers continue the practice of offering and providing accommodation throughout the recruitment process to address visible and invisible disabilities and to promote respect and professionalism as hallmarks of the workplace.

Managers actively reach out to staff to offer and put accommodation plans in place where required. All members and staff who need evacuation assistance have emergency evacuation plans in place.

Recruitment of Members

The Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009  requires the selection process for the appointment of new board and tribunal members to be competitive and merit-based.  It also requires that all new appointments have the support of the Executive Chair, who makes recommendations of new members to Ontario’s Attorney General.

In 2017-18, Environment and Land Tribunals Ontario (ELTO) successfully undertook proactive recruitment for various positions at all of the boards and tribunals as part of its succession and recruitment plans for tribunal members.  These plans minimize the impact position vacancies have on public services while supporting the Ontario Government’s policy on fostering renewal in the membership of tribunals and boards. 

ELTO uses a cross-appointment strategy that involves some ELTO members being appointed to more than one ELTO tribunal based on the member’s skills and knowledge.  This strategy ensures effective use of ELTO’s members by assigning cross-appointed members to hearings where the caseload need is highest among the tribunals.

ELTO successfully attracted highly-qualified candidates with the relevant background, training and skills for the following positions:

• Four full-time members, five part-time members and two vice-chairs at the Assessment Review Board.
• Two part-time members at the Board of Negotiation.
• A part-time vice-chair position at the Conservation Review Board.
• Two full-time vice-chairs and two part-time members at the Environmental Review Tribunal.
• Two full-time vice-chairs and two full-time members at the Ontario Municipal Board (Local Planning Appeal Tribunal (LPAT) as of April 3, 2018).

The coming fiscal year will be a crucial time for LPAT.  To successfully implement new legislation, processes and procedures, a full complement of members with the requisite expertise and experience will be needed. 

Further recruitment across ELTO is expected in the next fiscal year to address other anticipated vacancies.

Professional Development

Professional development is an essential part of Environment and Land Tribunals Ontario (ELTO)’s approach to providing high-quality dispute resolution services.  New member training and ongoing staff and member professional development are vital to ensure that we have the skills and knowledge to carry out ELTO’s public service mandate. 

In 2017-18 ELTO invited a number of academics, Ontario Public Service leaders and staff and members from other administrative tribunal clusters to speak to our staff and members:

• ELTO members participated in learning sessions on access to justice, active adjudication and working with self-represented parties, to ensure equal access to justice for all persons involved in hearings.
• The Environmental Commissioner of Ontario spoke about the implications of climate change for Ontario.
• French-speaking members and staff attended three days of training which included: a legal terminology workshop, a mock mediation session and a discussion on cultural diversity in the justice system.
• Members participated in sessions on moving towards the electronic hearing room and the rules of evidence.
• A session on the appropriate use of social media was held for members, which supports ELTO’s ongoing commitment to implementing its Code of Conduct.

In addition to internal education, ELTO sends members to a variety of advanced courses in such areas as mediation, hearing room management, decision writing and the development of cultural competencies.  Through professional development and specific training, members expand their adjudication and mediation skills.

Individual tribunals also conduct ongoing professional development sessions for their members:

• The legislative changes associated with the transformation of the Ontario Municipal Board to the Local Planning Appeal Tribunal were addressed during four professional development days, where members and staff developed processes, rules and models to facilitate a smooth transition to the new tribunal.
• The Assessment Review Board hosted four professional development days for staff and members to address the many recent changes affecting assessment appeals.
• The Board of Negotiation, Conservation Review Board and Environmental Review Tribunal also hosted professional development sessions to address emerging issues affecting those tribunals.
• ELTO staff and members also participated in sessions to ready ELTO for the arrival of the new Mining and Lands Tribunal.

Performance Results

Environment and Land Tribunals Ontario (ELTO) Performance Result

Assessment Review Board (ARB) Performance Results

Board of Negotiation (BON) Performance Result

*Note: The scheduling of BON meetings is driven by scheduling requests provided by the parties, and is affected by the timing that this information is received.  The reduction in performance in 2017-18 was the result of the BON undertaking an initiative to clear long-standing inactive cases.

Conservation Review Board (CRB) Performance Result

*Note: The result for 2016-2017 only includes hearing reports.  In 2017-2018, the CRB began including orders as part of its performance measure.  

Environmental Review Tribunal (ERT) Performance Result

Ontario Municipal Board (OMB) (Local Planning Appeal Tribunal as of April 3, 2018) Performance Results

*Note:  Adjudicator resource levels along with an increase in the number of complex/lengthy proceedings continue to contribute to the OMB’s inability to meet its performance targets.  Additional adjudicator recruitment is planned for the next fiscal year.

Financial Summary

Environment and Land Tribunals Ontario (ELTO) Expenditures

ELTO Revenues

The chart above shows the combined revenues for ELTO, including filing fees collected by the Assessment Review Board (ARB) and the Ontario Municipal Board (OMB).  The fees collected are remitted to the Consolidated Revenue Fund.

*Note: 2017 was the first year of a four-year reassessment cycle, which led to an increase in the number of new ARB appeals received, and an increase in overall revenue for that year.  ARB filing fees also increased on January 1, 2017, while OMB filing fees increased on July 1, 2016.

Assessment Review Board

About the ARB

The Assessment Review Board (ARB) hears property assessment appeals under the Assessment Act. Under the Assessment Act, the Municipal Property Assessment Corporation assesses all properties in Ontario every four years based on current value.  The assessed value, along with the property tax class, is used to determine taxes paid to municipalities and school boards by property owners.  Property owners can appeal either the assessed value or the property class to the ARB.  Under the Municipal Act, 2001, property owners in destitute circumstances can apply to the ARB for a reduction in the amount of taxes they are required to pay.

How Cases Are Resolved

During the 2016-17 fiscal year, the ARB undertook an extensive project to update its rules in preparation for the 2017-2020 assessment cycle.  As part of the new rules, a commencement date is assigned to all active appeals, which triggers a schedule of events that encourages all parties to work towards a resolution of the appeals.  The new schedule of events sets out timeframes for the exchange of evidence and a mandatory meeting between the parties.  If the parties are unable to settle the matter at the mandatory meeting, the ARB will schedule a hearing in person, in writing, or by telephone or video conference call. 

The ARB hears these appeals and makes decisions based on the applicable law and the evidence presented at the hearing.  At the end of the hearing, the member who conducted the hearing makes a decision or may reserve the decision for a later date.  Mediation services are also provided by the ARB.

Changes to Legislation and Rules

On May 8, 2018, Bill 31, Plan for Care and Opportunity Act (Budget Measures), 2018 came into effect, which introduced changes to the Assessment Act.  This new legislation will affect the appeals for the next assessment cycle 2021-2024. 

A mid-cycle review of the ARB’s new Rules of Practice and Procedure that came into effect as of April 1, 2017, will be undertaken by the Board.   A committee made up of municipalities, Municipal Property Assessment Corporation, tax agents, and legal representatives has been created to review and recommend any changes to the Rules, based on the ARB’s new approaches to resolving appeals. 

Based on feedback from stakeholders, the Board has created the Appeals Management Advisory Committee (AMAC).  AMAC will assist in monitoring adherence to the Schedule of Events and the effectiveness of administrative policies, practices and procedures established by the ARB for scheduling the appeals throughout this cycle.  It will also assist the ARB in developing and implementing policies, practices and procedures for appeals and monitor the effectiveness of new processes and make suggestions for improvements. 

ARB Caseload and Analysis

The ARB receives the highest number of appeals in the first year of the assessment cycle, while the number of new appeals filed decreases in the second to fourth years of the cycle.  However, there are legislative provisions for deeming^[1] outstanding appeals for each new taxation year within the assessment cycle, which impacts the number of cases showing as “received” for the year.

There are approximately five million properties in Ontario.  At the beginning of the fiscal year, the ARB had 55,769 appeals related to 22,307 properties.  During the year, the ARB received 17,309 appeals.  Of these, 13,441 were new appeals, and 3,868 were deemed appeals. 

The ARB resolved a total of 25,088 appeals during the year.  Of these, 456 appeals were dismissed, 1,458 resulted in changes to the assessed value, and the remainder were withdrawn, administratively closed or settled by the parties.  As of March 31, 2018, the ARB had a caseload of 47,990 appeals relating to 26,695 properties.  

Note: The figures above include the original appeal files, plus the deemed appeals.

ARB Caseload Breakdown for 2017-18

The above figures include assessment appeals to annual assessments, omitted assessments, supplementary assessments and correction of errors in the assessment roll.  The current four-year assessment cycle is 2017-2020. 

ARB File Types

*Note: Cases may include more than one appeal.  

Summary appeals are properties that are considered residential or have a residential component to them, while general appeals are properties that are considered non-residential including commercial, industrial or mixed-use properties.

The Board also receives municipal tax appeals under the Municipal Act, 2001 and the City of Toronto Act.

[1] Deeming: When the ARB has not resolved an assessment appeal by March 31^st of the year following the year under appeal, a new appeal will be created for the next tax year.  For example, if a decision on a 2017 appeal is not issued by March 31, 2018, a new appeal would be created for the 2018 tax year without the appellant submitting another appeal and paying additional fees.  The 2018 appeal would be considered the “deemed” appeal.

Board of Negotiation

About the BON

The Board of Negotiation (BON) conducts mediations of disputes over the value of land expropriated by a public authority.

How Cases Are Resolved

The BON provides mediation services to parties involved in disputes over the value of expropriated land.  BON mediations involve the landowner and the expropriating authority (typically the Crown or a municipality).  There is no cost to the party to use the BON mediation process.

The BON conducts a site visit of the expropriated property, reviews all written documentation and considers the submissions from the parties.  Through mediation, the BON tries to help the parties reach a resolution.  While it has no power to impose a settlement, the BON will, where sufficient information has been submitted, provide a recommendation to the parties on what would be fair compensation.

If a settlement cannot be reached at the BON, the parties may take the matter to the Ontario Municipal Board (OMB), which as of April 3, 2018, is known as the Local Planning Appeal Tribunal.  BON mediations are confidential, and the board employs strict measures to ensure that any information received is not provided to the OMB.  Nor do OMB members and staff have access to any information or discussions that were part of the BON process.

BON Caseload and Analysis

The BON’s 2017-18 incoming caseload decreased by 20.6 per cent over the previous year.  This decrease reflects the completion of major infrastructure projects like the 407 extension. 

*Note: Cases may include more than one appeal.  

Conservation Review Board

About the CRB

The Conservation Review Board (CRB) conducts proceedings where there are disputes concerning properties that may demonstrate cultural heritage value or interest, or disputes surrounding archaeological licensing.  For those cases requiring a formal public hearing, the CRB issues a recommendation report to the final government decision maker. 

How Cases Are Resolved

All cases before the CRB go through a pre-hearing process.  This may include, where appropriate, a confidential pre-hearing settlement conference.  The pre-hearing provides an opportunity for all parties to discuss the issues with each other and with the CRB.  The two fundamental objectives in conducting pre-hearings are to facilitate a possible settlement of the dispute and to prepare all parties for the formal hearing process if a settlement does not occur.

If a full settlement is reached at the pre-hearing stage and a withdrawal is filed with the CRB, then the case is closed.  If a settlement is not reached, the pre-hearing will be used to prepare all parties for the formal hearing.

After the hearing, the CRB issues a report to the municipal council or the Minister of Tourism, Culture and Sport (whichever has jurisdiction over the matter), making recommendations based on the evidence presented and arguments made at the hearing.  The CRB attempts to release the report within 30 days of the end of the hearing, and once released, the file is closed.  The municipal council or the Minister makes the final decision on the matter and will consider the report of the CRB as part of the decision-making process.

CRB Caseload and Analysis

The CRB received 27 cases during the 2017-18 fiscal year – representing a 28 per cent increase when compared to the previous year.  This marks the fourth consecutive year in which case intake has risen. 

In response to redevelopment and intensification, municipalities are identifying, registering and designating properties of cultural heritage value.  This work by municipalities has likely contributed to the increase in proceedings before the CRB under section 29(5) of the Ontario Heritage Act. 

The CRB managed 51 active cases throughout the year and held 41 hearing events, which is approximately the same amount of hearing events held in the previous fiscal year.  The CRB issued fewer reports this year as further work was undertaken to facilitate settlements between parties.  This led to an increase in the number of cases being withdrawn.  As of March 31, 2018, the CRB had 35 active cases.        

The 2017-18 fiscal year also saw an increase in the number of appeals associated with cases – 77 appeals in 27 cases.  This increase can be attributed to several cases which attracted community interest and multiple appeals were received for each property.

*Note: Cases may include more than one appeal.

*Note: Withdrawals are often the result of a settlement of the issues among the parties.

Environmental Review Tribunal

About the ERT

The Environmental Review Tribunal (ERT) hears applications and appeals under numerous environmental and planning statutes.  The ERT also functions as the Niagara Escarpment Hearing Office to hear development permit appeals and Plan amendment applications in the Niagara Escarpment, a protected World Biosphere Reserve.  It also serves as the Office of Consolidated Hearings to hear applications for joint hearings, where separate hearings before more than one tribunal would otherwise be required.

How Cases Are Resolved

The ERT holds pre-hearing conferences on most matters.  Pre-hearing conferences provide an opportunity to clarify, refine or settle the issues, as well as establish procedural directions in preparation for the main hearing.  Pre-hearing conferences also provide an opportunity for members of the public to request status to participate in the main hearing.  The presiding member typically issues a written order after a pre-hearing conference, noting what was decided and any directions given by the member.  When a proceeding does not settle, a main hearing is held and a decision is issued.

The ERT also offers mediation to parties who wish to attempt to settle all or some of the issues raised in a dispute.  Mediation can eliminate the need for a hearing or reduce the number of hearing days required.

Changes to Legislation and Rules

Regulations were passed in November 2017 and January 2018 to authorize the Ministry of the Environment and Climate Change to levy administrative penalties under the Climate Change Mitigation and Low-carbon Economy Act, 2016, the Waste Diversion Transition Act, 2016 and the Resource Recovery and Circular Economy Act, 2016.  Appeals of these penalties will be made to the ERT.

Effective June 1, 2017, amendments were made to the Niagara Escarpment Plan.  Members of the ERT, who are designated as Hearing Officers under the Niagara Escarpment Planning and Development Act, began to interpret and apply the new Plan. 

Similarly, the boundaries of the Greenbelt were modified on July 1, 2017.  The ERT has jurisdiction to conduct Greenbelt Plan amendment proceedings. 

ERT Caseload and Analysis

For 2017-18, the ERT received fewer cases than in the past.  Also, the ERT resolved more cases than it received, resulting in an overall decrease in total caseload. 

An increase in the number of renewable energy approvals (REA) appeals was projected in the last annual report.  However, this failed to materialize, as only one new REA case was received in the fiscal year. 

*Note: Cases may include more than one appeal. 

While overall case intake decreased slightly from the previous fiscal year, the proportion of cases received based on the applicable statute and on geographical location remained fairly consistent year-over-year.  The majority of cases came from the central region and were related to matters under the Environmental Protection Act and the Niagara Escarpment Planning and Development Act. 

Ontario Municipal Board (LPAT as of April 3, 2018)

About the OMB

The Ontario Municipal Board (OMB) is an adjudicative tribunal that hears cases in relation to a range of municipal planning, financial and land matters.  These include matters such as official plans, zoning by-laws, subdivision plans, consents, minor variances, land compensation, development charges, electoral ward boundaries, municipal finances, aggregate resources and other issues assigned by numerous Ontario statutes.

The legislation that transformed the OMB into the Local Planning Appeal Tribunal (LPAT) was proclaimed into law on April 3, 2018.  This legislation included changes to the process for resolving appeals.  Given the reporting period of the annual report, the data below focus on the OMB processes; however, information about LPAT’s new processes and how they differ from OMB’s is summarized below.

How OMB Cases Are Resolved

Most disputes were brought to the OMB by filing an appeal. Depending on the type of dispute, there are different processes and timelines for filing an appeal.  The OMB would review the appeal and decide, with input from the parties, to stream the case into mediation, motion, pre-hearing or hearing.

The OMB uses a pre-hearing process to manage complex or multi-party appeals of related municipal land use matters.  Through this process, members use techniques that include: identifying, prioritizing and refining issues, providing detailed procedural instructions or hearing work plans to the parties, and providing direction on any procedural disputes.  As a result, hearing events have become more focused and efficient in dealing with issues that are critical to the resolution of the appeals. 

The OMB holds hearings across the province, most often in the municipality where the property is located.  The OMB also holds hearing events by teleconference when it is appropriate, usually for events such as pre-hearings and settlement hearings.  The use of teleconferences allows the OMB to respond quickly and is both time and cost-efficient for the parties.

Changes to Legislation and Rules

Bill 139, the Building Better Communities and Conserving Watersheds Act made changes to the land use planning appeal system in Ontario.  This included the transition of the OMB to LPAT, with changes to its jurisdiction and processes. 

The new Local Planning Appeal Tribunal Act, 2017, which was enacted as part of the Bill 139 process, sets out the powers of the new Tribunal.  It also introduces a number of new practices and procedures for major Planning Act appeals.

As a result of the legislative changes, a number of new procedures will apply to specific appeals.  While parties to the appeal proceeding may present submissions to the Tribunal, they will not be allowed to introduce evidence or to cross-examine witnesses at or before hearings.  Only the Tribunal Member is permitted by the new legislation to call and question a witness.  These new regulations also impose a 75-minute time limit on oral submissions made to the Tribunal.  Time periods have also been established for the Tribunal to resolve an appeal. 

These changes came into effect on April 3, 2018, and will be reflected in the 2018-19 Annual Report.

OMB Caseload and Analysis

In the 2017-18 fiscal year, the OMB scheduled 2,007 hearing events – a slight increase from the previous fiscal year.  The majority of hearing events 86 per cent were scheduled for one day or less, while the number of hearings requiring ten days or longer remained at a rate of under one per cent. 

Fewer adjudicators, in addition to an increasing number of complex proceedings, contributed to the Board’s inability to meet some performance targets.  As well, the Board saw a significant increase in the workload for staff and adjudicators due to preparing for the implementation of the new legislation.  This allocation of staff and member resources ensured a timely and seamless transition to the new Tribunal.

Files involving the City of Toronto continue to account for the highest percentage of intake at 28 per cent, which contributes to the central region accounting for 73 per cent of intake for the year. 

As seen in the OMB Files Received by Type table, the decrease in the number of minor variance appeals to the Board can be attributed to the implementation of the Toronto Local Appeal Body.  This municipal level tribunal was established in May 2017 to adjudicate all minor variance appeals for the City of Toronto which are not connected to an existing appeal with the OMB.  While this was an anticipated reduction in caseload, the OMB received an increase in more complex cases such as official plans and official plan amendments, zoning refusal/inaction matters and plans of subdivision.

The OMB manages and adjudicates complex matters in a number of areas, including:

• Appeals of municipal approvals related to financial matters
• Land compensation matters
• Official plan amendments
• Site-specific land use appeals that have an impact on communities.

The pre-hearing process is critical to the management of such cases. A successful pre-hearing process allows hearing events to be refined, focused and efficient.  Pre-hearing events represent 40 per cent of the hearing events held this year.  The OMB’s mediation program continues to provide timely and cost-effective resolutions to disputes related to site-specific land use and complex land compensation matters.

*Note: Cases may include more than one appeal.  

Mining and Lands Tribunal

About the MLT

The Mining and Lands Tribunal (MLT) is an independent adjudicative tribunal responsible for hearing and deciding matters under legislation administered by the Ministry of Northern Development and Mines and the Ministry of Natural Resources and Forestry (MNRF).  These matters include the resolution of mining and lands disputes and appeals of decisions made by conservation authorities, which involve property owners proposing to develop lands in floodplains and wetlands.

The MLT was previously known as the Office of the Mining and Lands Commissioner, under the MNRF.  On April 1, 2018, it was renamed the MLT and joined Environment and Land Tribunals Ontario (ELTO) as the sixth tribunal.

Since the MLT joined ELTO after the close of the fiscal year, details about the MLT’s legislation, rules, processes and caseload will be included in the 2018-19 Annual Report. 

The Future of ELTO

Environment and Land Tribunals Ontario (ELTO) is committed to improving its operations while maintaining the highest standards of administrative justice.  The future of ELTO lies in continuing its efforts in the three strategic directions identified in its business plan.

Strategic Direction 1: Public Dispute Resolution Services

This is central to ELTO’s core business of resolving disputes by providing the public with services that are accessible and lead to a timely and appropriate resolution.  ELTO is committed to ensuring the public receives a fair, timely and a high-quality resolution to their dispute.  ELTO will continue to inform the public about when to use tribunals, what to expect during the process and improve access to services by:

• Developing guidelines for the filing of electronic documents when ordered as part of the hearing
• Launching an electronic hearing file pilot program.
• Distributing a public service survey to parties and stakeholders.
• Updating and improving the accessibility of the Environmental Review Tribunal Appeal and Application Guides that were not updated in the first phase of the project.
• Creating and updating forms for the Local Planning Appeal Tribunal appeals that are accessible and easy to complete.
• Developing enhanced case management tracking systems.

Strategic Direction 2: Modernization and Transformation

ELTO serves the evolving needs of the people across the province by improving rules, processes and technology to ensure inclusiveness and accessibility of its services.  Modernization is achieved by working with stakeholders, reviewing tribunals’ rules and streamlining services.  ELTO is working towards providing improved access and green solutions by using electronic data instead of paper and offering alternative hearing formats to reduce the need for travel.

Additional ways that ELTO is modernizing service include:

• Developing a single case management system for all of ELTO’s tribunals.
• Revising the Conservation Review Board’s Rules of Practice and Practice Directions to enhance accessibility and understanding of information.
• Working with other adjudicative tribunal clusters to identify opportunities for service integration and the sharing of best practices to increase effectiveness.

Strategic Direction 3: Engaged and Dynamic workplace

ELTO aims for everyone in the organization to be engaged and support continuous improvement.  It continues to develop and nurture a responsive workplace to ensure future adaptability by: 

• Offering professional development for staff and members about new ELTO process and procedures.
• Implementing adjudicator succession and recruitment plans and an adjudicator performance evaluation system.

Through the implementation of these and other key deliverables and initiatives, ELTO seeks to improve its services to the public continuously.

Appendix A: ELTO’s Appointees

*Indicates appointees who were no longer with ELTO as of March 31, 2018, or whose position at ELTO changed in the 2017-18 fiscal year.