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THE ONTARIO LAND TRIBUNAL

Appeal Guide

Last updated: July 7, 2021


Contents

Legislation
7
Introduction
8
About the OLT
9
Filing an Objection, Appeal or Application
11
Participating in a Hearing Event
14
Case Management Conference (CMC)
17
Mediation
21
Hearings
24
Postponing Hearing Events (Adjournments)
31
Motions
33
Affidavits
36
Recovering Hearing Costs
37
Decisions
39
Withdrawals
42
Planning Matters
43
Heritage Matters
44
Environmental Matters
46
Mining Matters
56
Glossary
58

Legislation

The Ontario Land Tribunal (“OLT”) hears, decides and mediates appeals or applications filed under a number of statutes related to land use planning, environmental and heritage protection, land valuation, mining and other matters.

For example, appeals or applications can be filed with the OLT under specific sections contained in the following Statutes of Ontario:

Introduction

This guide provides a general overview of the most common types of appeals that can be filed with the OLT. This guide should not be relied upon as an authoritative text. The provisions of relevant legislation to an appeal and the Ontario Land Tribunal’s Rules of Practice and Procedure prevail over the contents of this guide.

Information about specific cases is available on the Ontario Land Tribunal’s website or by contacting:

Ontario Land Tribunal
655 Bay Street, Suite 1500
Toronto, Ontario M5G 1E5
Telephone: 1 (416) 212-6349
Toll Free: 1 (866) 448-2248
TTY: 1 (800) 855-1155 via Bell Relay
Email: OLT.Registrar@ontario.ca

About the OLT

What is the Ontario Land Tribunal?

The Ontario Land Tribunal (“OLT”) is an independent adjudicative tribunal which adjudicates or mediates matters related to land use planning, environmental and heritage protection, land valuation, mining and other land-related matters. The OLT has jurisdiction over more than 200 different types of appeals, which can be brought under a number of different statutes.

The OLT is established by section 2 of the Ontario Land Tribunal Act, 2021 [S.O. 2021, c.4, Sched. 6] (“OLT Act”). As of June 1, 2021, the Local Planning Appeal Tribunal, Environmental Review Tribunal, Board of Negotiation, Conservation Review Board and Mining and Lands Tribunal were amalgamated and continued as the Ontario Land Tribunal.

The OLT and all who work within it are committed to providing access to justice and to high quality, independent, timely, fair and principled resolutions of the matters brought before them. OLT services support strong, healthy communities and the public interest.

What is a “Member”? How are they appointed to the OLT?

Members are responsible for the adjudication of disputes between parties appearing before the OLT. Members conduct hearings, make rulings and write decisions. Members have a wide variety of experience and include lawyers, planners and mediators. Members are selected through a competitive merit-based process and are appointed by the Lieutenant Governor in Council through the Public Appointments Secretariat (“PAS”). For more information on the appointment process, please visit the PAS website.

What rules govern the OLT?

The OLT is governed by the OLT’s Rules of Practice and Procedure (“OLT Rules”), made under the authority of s.13 of the OLT Act, and which set out the practices and procedures for the OLT’s adjudication and disposition of disputes.

Who can access OLT documents?

All documents filed with the OLT and all communications to and from the OLT are part of the OLT’s public record and are available for reasonable access by the public (unless the OLT orders otherwise). In some circumstances where there are issues of public security or where the documents include intimate personal information, documents may be treated as confidential and are not disclosed to the public.

Filing an Objection, Appeal or Application

For more information on filing an appeal, please see Rule 5 of the OLT’s Rules of Practice and Procedure, as well as the section of the legislation under which your appeal is being filed.

Who can file an appeal?

Who can file an objection, appeal, or application with the OLT (and other requirements, if any, for filing an objection, appeal, or application) depend on and are set out by the specific legislation which provides the right of appeal, application, or objection. For example, an Appellant might be a person or corporation that has unsuccessfully brought an application before a decision-making authority. An Appellant might also be a person or corporation that previously made submissions regarding an application to a decision-making authority.

A person who initiates a proceeding before the OLT by filing a notice of objection is referred to as the “Objector”. A person or corporation who initiates a proceeding before the OLT by filing an appeal is referred to as the “Appellant”. A person or corporation who makes an application to the OLT or who requests that a matter be referred to the OLT is referred to as the “Applicant”. The term “Applicant Appellant” may be used to describe an Appellant who also made the underlying application.

How can I file an objection, appeal or application for a hearing?

To file an appeal, you must notify the authority that issued the decision or the OLT in writing by email or letter mail and outline the reasons for your case under the relevant legislation. You are expected to complete the appeal form available on the OLT’s webpage and submit that form to the proper authority as set out in the legislation. You may refer to the relevant legislation, appeal form, and Notice of the decision you wish to appeal for guidance regarding where to file your appeal.

When filing directly with the OLT, you are required to file your appeal form and initiating documents electronically in accordance with Rule 5.1 of the OLT Rules, unless a statute or the OLT Rules provide for other methods. In most circumstances, an appeal, notice of objection, or application for a hearing must also be served on the authority that made the decision that you wish to appeal (e.g., the clerk of the municipality that made the decision).

Notices of appeal or objection must clearly set out valid reasons.

Please note that the OLT does screen appeals to identify whether they were filed on time and in accordance with statutory requirements. The OLT can refuse to process an objection, appeal or application if it finds that the documents filed to initiate the proceeding are incomplete, filed without a fee, or are otherwise not in compliance with its Rules.

For more information, please visit the “Heritage Matters”, “Planning Matters”, “Environmental Matters” and “Mining Matters” sections as applicable.

What is the deadline for filing an objection, appeal or application?

Your deadline will depend on the type of objection, appeal or application you want to file. To determine the deadline for your appeal, please check the specific section of the legislation that you wish to file your objection, appeal or application under. You may also refer to the Notice of the decision that you wish to appeal, which should include details regarding the timeline and process to appeal.

“Days” are calculated as calendar days. Please note that there are no provisions for the OLT to extend the statutory deadline to file an appeal. If the deadline is not met, the OLT does not have the authority to hold a hearing to consider your appeal.

What is the filing fee for an objection, application, or appeal?

A person is expected to pay an applicable fee at the time they file an appeal or application with the OLT, in accordance with section 11(1) of the Ontario Land Tribunal Act, 2021. For a list of all OLT fees, please visit the “Fee Chart” page on the OLT website.

Does everyone have to pay the fees? What if I can’t afford the filing fee?

If you are a person who cannot afford to pay the fee, then you can ask the OLT to waive the entire fee or a portion of the fee so that you may proceed with your appeal. You may request a fee waiver by writing to the OLT Registrar. Please see OLT’s “Low Income Fee Waiver Policy”.

Fee waivers for charitable organizations may be considered and granted on a case-by-case basis, subject to providing verification of charitable status with the OLT.

Are there other costs I will be responsible for?

You may be responsible for your costs as they relate to the appeal, such as:

How is an objection, appeal or application processed once the OLT receives it?

Once the OLT receives the objection, appeal or application and the filing fee is processed, the OLT will initiate a formal process to structure how the objection, appeal or application will be heard and how a party and members of the public will be permitted to participate.

Each objection, appeal or application is assigned an OLT “case file number” and a case coordinator is assigned to manage the file. The case coordinator will review the file and may contact parties for additional information.

The OLT will send the appellant and any known parties an acknowledgement letter, which will include the case file number(s), the name of the case coordinator, and general information about the OLT’s process.

The OLT will also schedule a case management conference (CMC), if required. For more information on CMCs, please see the “CMC” section of this guide.

Participating in a Hearing Event

For more information on requesting party or participant status, please see Rules 7.7 and 8 of the OLT’s Rules of Practice and Procedure, as well as the section of the legislation the objection, appeal or application has been filed under.

How can neighbours and other concerned people participate?

Those with an interest in the matter may be able to request party or participant status in the proceeding. The specific legislation under which the objection, appeal or application was initiated may set out certain conditions for a person to be granted status by the OLT to participate as a party or as a participant. A party or participant may choose to support the Appellant, support the decision being appealed, support the position of another party, or advance a different position.

What is a party?

Parties are fully involved in the proceedings before the OLT, and are expected to file submissions, present evidence at the hearing, question witnesses and fully understand the issues in dispute. They may also request adjournments, seek costs or a review of the decision at the end of the hearing. For more information, refer to Rule 8 of the OLT Rules.

What is a participant?

Participants have a limited role in the appeal, except as provided for by legislation. They do not fully take part in the proceedings and may only provide written submissions to the OLT, pursuant to s. 17 of the Ontario Land Tribunal Act, 2021. Participants may not request costs, adjournments, or a review of the decision. For more information, refer to Rule 7.7 of the OLT Rules.

How can I request to be a party or participant?

A person who wishes to seek party or participant status is expected to pre-file a Party Status Request Form or a Participant Status Request Form and Participant Statement Form with the OLT and all parties at least 10 days ahead of the first hearing event (e.g. at the case management conference) to explain their interest in the appeal. A person seeking party status should also explain how their involvement will assist the OLT in resolving issues raised in the appeal. A participant’s written statement must set out their position on the appeal and issues of the proceeding, together with an explanation of their reasons in support of their position.

When will my request be considered?

At the case management conference (CMC), the Member(s) will decide on any requests for persons to become a party or a participant in the case.

For more information on CMCs, please see the “CMC” section of this guide.

Are hearing events open to the public?

Hearing events, such as CMCs or the hearing of the appeal, are open to the public and anyone can attend to watch, unless directed otherwise by the Member(s) pursuant to s. 9 of the Statutory Powers Procedure Act. The Member can close all or part of a hearing event to the public in certain circumstances, such as where intimate financial or personal matters may be discussed. Mediation sessions are confidential and not open to the public.

For hearing events that happen by teleconference or videoconference call, please contact the case coordinator for call-in details.

What if I have accessibility requirements?

If you have any accessibility requirements, please contact the Accessibility Coordinator as soon as possible by email at OLT.COORDINATOR@ontario.ca or by phone at 416-212-6349 / 1-866-448-2248.

Can I request that the hearing event take place in another language?

To request that the hearing event take place in French, please contact the OLT at least 25 days before the hearing event. For services in other languages, you must provide your own interpreter.

For more information, please see Rule 14 of the OLT Rules and the OLT’s French Language Services Policy.

Do I need a lawyer or paralegal to be a party or participant in a hearing, case management conference or mediation?

No, a lawyer or paralegal is not required for hearing events before the OLT. If you choose to represent yourself, you should be prepared to:

  1. Conduct your own research on the matter;
  2. Find the documents and information you need for your case;
  3. Comply with all deadlines set out by the OLT; and
  4. Present your evidence and submissions at the hearing.

If you do decide to hire a legal representative, you need to ensure that the person is licensed by the Law Society of Ontario (LSO) or they may not be able to represent you.

You may also be able to have a friend or relative represent you if they meet an exemption under the Law Society Act or by-laws. For example, there is an exemption that allows for persons who are not in the business of providing legal services to occasionally provide assistance to a friend or relative for no fee.

For more information about representation, including licensing and exemptions, please visit the LSO website and Rule 4 of the OLT Rules.

Case Management Conference (CMC)

For more information on CMCs, please see Rule 19 of the OLT’s Rules of Practice and Procedure, as well as section 15 of the Ontario Land Tribunal Act.

What is a CMC?

A case management conference (CMC) is convened under Rule 19 of the OLT Rules and section 15 of the Ontario Land Tribunal Act. A CMC is a hearing event, held prior to the hearing on the merits, that provides the OLT with the opportunity to identify parties and participants, identify or narrow the issues, identify facts that may be agreed upon, provide directions for disclosure and exchange of information, and set the date for the hearing.

The OLT will also invite the parties to discuss opportunities for settlement, including the possible use of mediation or other dispute resolution processes. If a full settlement is reached, the parties must submit a letter confirming that the appeal is withdrawn and the case is closed. If a settlement is not reached, the CMC proceeds to the phase of preparing all parties for the formal hearing.

What are the disclosure requirements?

All parties must provide a copy of every relevant document that is in their possession, control or power to all other parties without charge. This must be done no later than the date the OLT sets for the exchange of these documents. The obligation to disclose is ongoing throughout the hearing process. All relevant documents discovered during the course of preparation for the hearing and the hearing must be provided to the other parties.

Privileged documents are exempt from disclosure requirements.

All documents intended to be relied upon at the hearing must be filed with the OLT. Documents are expected to be filed in electronic form as directed by the OLT and in accordance with Rule 7 of the OLT Rules.

Who can take part in a CMC?

The objector(s), owner(s), applicant(s), appellant(s), and the municipality and/or the approval authority (whose decision or failure to make a decision is the subject of the appeal) are entitled to participate in the CMC.

Those persons who wish to seek party or participant status shall explain in writing to the OLT their interest in the matter and how their participation can assist the OLT in understanding the issues.

Are CMCs open to the public?

Yes, CMCs are open to the public and anyone can attend and watch, unless directed otherwise by the Member(s) pursuant to s.9 of the Statutory Powers Procedure Act.

For hearing events that happen through teleconference or videoconference call, please contact the case coordinator for call-in details.

How do I get notified of a CMC?

You may be notified of a CMC either by the OLT, by the individuals identified by the municipality as having an interest in the matter, or by the municipality/approval authority if you participated in the decision making process at the municipality and asked to be informed of any municipal decision on the matter. The OLT may provide an Appointment for Hearing through email, or it may direct the municipality/approval authority to service the notice (depending on the type of appeal).

You can expect to receive at least 30 days’ notice of the CMC by regular mail or email.

Do I have to submit anything before the CMC?

Persons other than the existing parties who wish to participate in a CMC are expected to pre-file a written submission to the OLT to explain their interest. Deadlines for pre-filing are provided in the CMC Notice.

For more information, please see the “Participating in a Hearing” section of this guide.

How can I prepare for the CMC?

To prepare for your CMC, you should review the initiating documents, the record of the municipality or approval authority (if applicable), Rule 19 of the OLT Rules, and the section of the legislation that the objection, appeal, or application has been filed under. If your CMC relates to a planning matter, you may also wish to review the Provincial Policy Statement and related provincial plans and municipal documents, such as official plans or by-laws.

Parties and persons seeking party status are expected to discuss the sample procedural form in advance of the CMC and try to determine the issues and process that they want the OLT to order following the CMC. The OLT will hear submissions on the sample procedural form at the CMC.

What can I expect during the CMC process?

Before the CMC, the Member(s) will review the objection(s), application or appeal record, any requests made for status by potential parties and participants, and any written submissions. At the CMC, the Member may request further information from the parties and discuss opportunities for settlement or mediation, where applicable. The Member may also make decisions including: who should attend the hearing, whether the hearing will be held in person, by teleconference or videoconference, or in writing, what issues will be considered, and any matters required to be carried out prior to the hearing. After the CMC, the Member will issue a procedural order that may decide any of the matters considered at the CMC and provide direction for the next hearing event or schedule a date for the hearing on the merits.

The CMC is generally not intended to be the forum to discuss the arguments of a case. However, the Member may convert the CMC into a hearing. Parties should arrive prepared to discuss procedure and settlement, as well as to participate in a preliminary hearing. Some evidence may be permitted by the OLT to further support the positions of each party and/or to seek a settlement.

Can a CMC be postponed or adjourned?

In limited circumstances, the OLT will issue an adjournment of a CMC or hearing event. A party who requests an adjournment must do so in writing, give valid reasons, notify every other party and seek their consent for the adjournment, and submit their request well in advance of the start of the event. For more information, refer to Rule 17 of the OLT Rules.

For more information on postponements and adjournments, please see the “Postponing Hearing Events (Adjournments)” section of this guide.

Can I speak to or correspond with the Member(s)?

During the CMC, parties and participants may speak to the presiding Member(s) on any matter. However, it is inappropriate to contact them outside of the hearing room as doing so could compromise, or appear to compromise, the neutrality and independence of the OLT and its Members and their ability to provide natural justice.

If you have any issues or concerns, you may wish to contact your case coordinator, and they may forward your correspondence to the Member(s) as appropriate.

Will the CMC be recorded?

No, CMCs are not recorded by the OLT. However, you may request permission to arrange, at your own expense, for a court reporter to transcribe the hearing.

Under Rule 22 of the OLT’s Rules of Practice and Procedure, recording of the CMC – photograph, motion picture, audio, video, screenshot or otherwise – is not permitted unless the presiding Tribunal Member authorizes the recording. Approval may be subject to conditions that no distribution or public re-playing of the recording occurs, and that it does not constitute an official transcript of the hearing or a record for use in any subsequent proceeding.To request permission, please contact the OLT in advance of the CMC.

Please note that as per section 29 of the Statutory Powers Procedure Act, persons found improperly recording hearing events before the OLT and/or distributing those recordings may be liable to a fine of up to $25,000.

Mediation

For more information on mediation, please see Rule 18 of the OLT’s Rules of Practice and Procedure.

What is mediation?

Mediation is a voluntary and confidential process to provide parties with the opportunity to develop a detailed understanding of the issues in dispute and to explore and consider options for a mutually acceptable solution on some or all of the issues in dispute. If a settlement is reached through mediation and an order of the OLT is required, it will proceed to a settlement conference (or hearing). In some circumstances, a settlement may not require an order of the OLT to finalize their settlement or agreement.

Please note that an OLT-assisted mediation is separate and distinct from a mediation held by the municipality and/or between parties.

When is mediation available?

Opportunities for mediation can be explored anytime during an appeal process.

How do I request mediation?

To request mediation, you are required to submit your request in writing to the OLT. The OLT will conduct a Mediation Assessment to determine mediation parties and if the issue or matter is suitable for mediation.

If the OLT determines mediation is appropriate, it will coordinate with approved mediation parties and set a date for mediation. OLT may also send a mediation notice to all involved parties. If the OLT decides mediation is not appropriate, it will schedule a hearing and send a notice of hearing to the parties, subject to the case management and streaming of the appeal.

Who will mediate my appeal?

If the OLT determines that mediation is appropriate, the OLT will assign an OLT Mediator. In the event that the mediation is unsuccessful or partially successful, the Mediator(s) will not participate in the hearing or otherwise communicate with the Member(s) assigned to the hearing of that matter.

Is mediation open to the public?

No, mediations are confidential. Any information or documents exchanged, any statements made, any suggested resolution of the issues, or any offers to settle made during a mediation shall remain confidential and cannot be disclosed in evidence in any proceeding, nor placed in the OLT file. A Mediator’s notes are also confidential and a Mediator may not be called as a witness to give evidence or produce documents that relate to the mediation.

In some circumstances and subject to conditions, a person who is not a party may participate in a mediation with the permission of the OLT and the consent of the parties.

How can I prepare for mediation?

To prepare for mediation, you should review Rule 18 of the OLT Rules as well as the legislation that the appeal, application, or objection has been filed under. You may also wish to review any materials that have been filed with the OLT and any relevant policy documents (e.g., provincial plans or municipal documents, such as official plans or by-laws).

What can I expect during the mediation?

During mediation, the parties will try to reach an agreement to resolve their dispute in order to avoid or shorten a hearing. Therefore, all parties are required to have in attendance an individual with the authority to make binding decisions or an individual with sufficient seniority, title, and authority to make recommendations to a decision-making body with the authority to make binding decisions.

At the beginning of the mediation, the Mediator will advise parties on how the mediation will proceed and set out the ground rules. Mediators are impartial and are not present to assist the parties in achieving success with their case, and will not provide legal, planning or other expert advice. The Mediator may, if requested, and in confidence, offer a view of the strengths and/or weaknesses of a particular party’s case if the mediator is of the opinion that such a view will assist the party in developing strategies for achieving a successful resolution of the issues. The Mediator may also help make the discussion of the issues easier and may offer new solutions.

What if an agreement is reached at mediation?

If the parties reach an agreement, the OLT will schedule a settlement conference after settlement documents have been signed, finalized and forwarded to the OLT. During a settlement conference, an OLT Member(s) will review the settlement and may issue orders, including approving any planning instruments under appeal in accordance with the terms of the settlement.

What if an agreement is not reached at mediation?

Mediation and settlement discussions are confidential and conducted “without prejudice.” This means that if a party makes a statement or shares information in the spirit of settlement but a settlement is not reached, that statement cannot be used against them in the event of a formal hearing.

If mediation does not resolve the issues, the OLT will schedule a hearing. The Member(s) assigned to the hearing will not be provided any information from the mediation or communicate with the Mediator regarding the matter.

Will the mediation be recorded?

It is not permitted to record mediations at the OLT. All documents relied on and anything said in mediation is confidential.

Hearings

For more information on hearings, please see the OLT’s Rules of Practice and Procedure, as well as the section of the legislation that the objection, appeal or application has been filed under.

Who can take part in a hearing?

Participants may only submit a written statement to the OLT, as per section 17 of the Ontario Land Tribunal Act (OLTA)

Are hearings open to the public?

Yes, hearings are open to the public and anyone can attend and watch, unless directed otherwise by the Member(s) pursuant to s.9 of the Statutory Powers Procedure Act.

For hearing events that take place by teleconference or videoconference call, please contact the case coordinator for call-in details.

In some cases, the OLT may determine that a specific hearing event will be live-streamed via the YouTube website. The OLT maintains a channel on YouTube to post videos and live-stream events.

How will the hearing be held?

An appeal will normally be conducted through an oral hearing, which may be heard in-person or electronically (i.e. by telephone or videoconference). An appeal may also be heard in writing, or by a combination of writing and oral events.

How do I get notified of a hearing?

It depends on the type of appeal. You may be notified of a hearing either by the OLT, the applicant/appellant or the municipality/approval authority. The OLT may provide an Appointment for Hearing or it may direct the applicant or municipality/approval authority to serve the notice.

Do I need to attend the hearing?

It is a good idea to be present at the hearing, even if you authorize a lawyer or representative to act on your behalf. There may be questions that arise from another party that only you can answer, or from the OLT about the issues in dispute or evidence presented.

How can I prepare for a hearing?

The key to effective participation in a hearing is being well informed and prepared to present your views and evidence. The OLT can only consider the information that is presented at the hearing. Any information or evidence presented should be relevant to the issues before the OLT.

To prepare for your hearing, you should review the OLT Rules, the legislation under which the objection, appeal or application was filed, and any directions given in the procedural order. You may also wish to review the decision of the municipality or the approval authority that is the subject of the appeal, any materials filed with the OLT, including the other party’s evidence and witness statements, and any related provincial plans, policies, municipal documents (e.g., official plans or by-laws).

Why do I need to submit my evidence in advance of the hearing?

Submitting evidence in advance provides the OLT with the opportunity to review your materials and prepare for the hearing. Exchanging information with the other parties ensures that everyone is informed about the case and will contribute towards the fair, just, expeditious, and cost-efficient disposition of the issues before the OLT.

You should submit all documents and witness statements in accordance with Rule 7 of the OLT Rules. If you do not submit a particular document before the deadline provided by the OLT, you may not be able to use it during the hearing.

Can I submit photographs and videos as evidence?

Yes, photographs and videos can be submitted as visual evidence. However, the person who took them may need to attend the hearing to explain what is being shown.

If the opposing parties agree with respect to the content of the photographs or videos, then it may be possible to submit the visual evidence without the person who took them.

What can I expect during the hearing?

The Member(s) will proceed with the hearing in accordance with the OLT Rules and based upon the directions in the procedural order, if any. The number of panel members can range between one to three, depending on the nature of the objection(s), appeal or application.

The order in which the parties will present their cases and issues in dispute will be guided by the hearing plan (if applicable). A hearing plan outlines how the hearing will proceed and ensures the OLT is providing enough time to address the matter. Parties may be directed by the OLT at the CMC to file a hearing plan that addresses, for instance, the order of witnesses and anticipated time needed for submissions.

Can the OLT require a witness to attend a hearing?

Yes, the OLT can require a witness to attend a hearing by issuing a summons. In some circumstances, witnesses may require a summons from the OLT to attend the hearing, even if they are agreeable to giving evidence. For example, a witness might not be paid by their employer in the absence of a summons.

The OLT summons form can be found here.

The party summoning a witness is responsible for paying for the witness’ attendance costs at the same rate that a person summoned to appear before the Superior Court is paid. For more information on attendance costs for summoned witnesses, please see Tariff A of the Ontario Rules of Civil Procedure under the Courts of Justice Act.

What are a witness’s responsibilities?

Witnesses may be trained professionals, members of the community, academic specialists or individuals with specific knowledge who can give the OLT relevant information related to the issues in the appeal.

An expert witness is someone who has been accepted by the OLT to present opinion evidence in matters within their expertise in a fair, objective and non-partisan manner. A party who wishes to have witnesses present opinion evidence must have them qualified as experts by the OLT before their evidence can be admitted.

Witnesses may be called to give oral evidence at a hearing held in person or electronically. All oral evidence at a hearing is given under oath or affirmation. Before testifying, each witness will be asked to either swear or affirm that the evidence that they will provide is the truth. Providing false evidence to the OLT may constitute a criminal offence.

At a hearing, witnesses will be called, qualified if appearing as an expert witness, and may then present their evidence. Witnesses may refer to their notes or any documentation that was previously exchanged and filed with the OLT.

They can be asked questions by the parties. The OLT will allow cross-examination as necessary by a party opposite in interest to inform the Member(s) in making their decision. The Member(s) may also ask questions of a witness at the hearing.

The Member(s) will decide whether further information is needed to understand the matter before it. If so, the Member(s) may request, at the hearing, that the parties bring a witness to respond to questions from the Member(s).

What is a Witness Statement?

A witness statement is a written statement of the evidence a witness intends to present.

If the hearing is expected to last more than five days, the OLT may require that parties calling expert witnesses serve on the other parties any expert witness statements and reports prepared for the hearing, at least 30 days in advance of the commencement of the hearing, unless otherwise directed by the OLT. The OLT may in its discretion, or at the request of a party, also make this prefiling order for hearings expected to last fewer than five days.

An expert witness statement must contain:

However, the expert’s complete report may be filed instead of this statement if it contains all of the required information. An expert may not be permitted to testify if this statement or report is not served on all parties within the time directed by the OLT.

The OLT may also require that a witness who is not presenting expert evidence provide a witness statement. A witness statement should contain:

The OLT may decline to allow the witness to testify if this statement is required by the OLT and has not been provided to the other parties.

For more information on witness statements, please see Rules 7.4 to 7.6 of the OLT Rules.

What is the order of presentation at a hearing?

The OLT can direct the order in which parties make statements and present evidence. This is often set in a procedural order. In some instances, the decision-maker whose decision is being appealed (i.e., the Director, Risk Management Official, Inspector, Registrar or Deputy Registrar, municipality, approval authority, committee of adjustment) will present their case first and call each of their witnesses. In other cases, the OLT may wish to hear from the appellant or applicant first because it is more efficient to focus on the disputed issues.

At the beginning of the hearing, parties may give brief opening statements addressing what they feel are the issues in the case before the OLT, a summary of the evidence they intend to present, the names of the witnesses that they intend to call, and the amount of time they feel they will need to present their case.

After opening statements and any preliminary procedural matters, the parties call witnesses in the order directed by the OLT. In most cases, witnesses will give evidence through direct examination, cross-examination and re-examination in the following way:

After the parties have presented their evidence, the party that proceeded first will have the chance to present any additional evidence, in response to the evidence of another party(s). This is called reply evidence and it is limited to evidence that could not have been reasonably expected during their initial presentation of evidence.

When all the evidence has been heard, each party can make a final submission. This closing statement gives the parties a chance to summarize the important facts that they are relying on, to summarize any points of law or policy that they think are relevant for the OLT’s consideration, and to persuade the OLT to accept their argument or position.

At any time during the hearing, the OLT may ask questions of parties, witnesses, lawyers or representatives.

Can a hearing be postponed or adjourned?

Hearing dates are fixed and the parties are expected to be prepared and ready to proceed on the date set. A last minute request for an adjournment of the hearing will only be allowed in extraordinary circumstances, such as an unavoidable emergency. The OLT is required to dispose of proceedings without unreasonable delay and in some cases, there may be legislative time periods for a decision. Your adjournment request should indicate the parties whom have consented and not consented to the request.

For more information on postponements and adjournments, please refer to Rule 17 of the OLT Rules and the “Postponing Hearing Events (Adjournments)” section of this guide.

Can I speak to or correspond with the Member(s)?

During the hearing, you may speak to the presiding Member(s) on any matter. However, it is inappropriate to contact them outside of the hearing room as doing so could compromise, or appear to compromise, the neutrality and independence of the OLT and its Members, and their ability to provide natural justice.

If you have any issues or concerns, you may wish to contact your case coordinator, and they may forward your correspondence to the Member(s) as appropriate.

Will the hearing be recorded?

No, hearings are generally not recorded by the OLT except under limited circumstances (for example, the evidence taken before the OLT on some Mining Act and Conservation Authority Act matters is required to be recorded, in accordance with section 125 of the Mining Act ). However, you may request permission to record the hearing or to arrange, at your expense, for a court reporter to transcribe the hearing.

Under Rule 22 of the OLT’s Rules of Practice and Procedure, recording of the hearing – photograph, motion picture, audio, video, screenshot or otherwise is - not permitted unless the presiding Tribunal Member authorizes the recording. Approval may be subject to conditions that no distribution or public re-playing of the recording occurs, and that it does not constitute an official transcript of the hearing or a record for use in any subsequent proceeding.

To request permission, please contact the OLT in advance of the hearing.

Please note that as per section 29 of the Statutory Powers Procedure Act, persons found improperly recording hearing events before the OLT and/or distributing those recordings may be liable to a fine of up to $25,000.

What if I miss my hearing?

If you miss your hearing, it is important that you notify the OLT of the reason for your absence in writing as soon as possible. However, the OLT may proceed with the hearing in your absence, as is stated in the Notice of Hearing.

What principles govern the OLT’s hearings?

The OLT conducts its hearings to ensure the fair, just, expeditious and cost-effective adjudication of the appeal. The OLT is committed to open, accessible and understandable hearing procedures that enhance access to justice and public participation.

The OLT’s objective is to consider all the evidence presented, and make a decision with written reasons in a manner that is consistent with the legislation under which the hearing is being heard, and that fulfills the core values of accessibility, fairness, transparency, timeliness, integrity, professionalism and independence.

Postponing Hearing Events (Adjournments)

For more information on adjournments, please see Rule 17 of the OLT’s Rules of Practice and Procedure.

Can I postpone my hearing event?

If you want to change the date of your hearing event, you may ask the OLT to postpone your hearing event. This is known as an “adjournment”.

Once your appeal, application, or objection is filed, you should be prepared for your hearing event at any time, even on short notice. If your request to delay the hearing event is denied, the hearing event will go ahead as scheduled and you will be expected to attend.

How do I request an adjournment?

If you want to request an adjournment, you must first ask the other parties if they agree to an adjournment. If the other parties consent, you can file your adjournment request in accordance with Rule 17.2. If the other parties do not consent, you are required to file your request with the OLT 15 days prior to the hearing event or, if that is not possible, as soon as possible, in accordance with Rule 17.3. Please note that the parties’ agreement will not determine whether the OLT will grant your adjournment request.

You must submit a Request for Adjournment form to the OLT and send a copy to all parties. In your request, please ensure you include the reasons you want an adjournment, a suggested new date, and whether the other parties have agreed to postpone. A copy of the form is available on the “Forms” page of the OLT website.

When can I request an adjournment?

You should submit your adjournment request as soon as you know that you need a delay. Requests brought less than 15 days before the hearing event are considered late. If the reason for the adjournment arises less than 15 days before the hearing event begins, you must submit your request form as soon as possible. If the OLT does not allow the late request, you may bring a motion to adjourn at the beginning of the hearing event.

What happens after I send in my request to adjourn?

The OLT may make any appropriate order, including:

  1. Denying the request (the hearing event will go ahead as originally scheduled);
  2. Delaying the hearing event for a shorter time than requested; or
  3. Granting the request and reschedule the hearing event.

In some cases, the OLT may also schedule a case management conference with the parties to discuss the status of the matter.

Even if all the parties agree to an adjournment, the OLT is not obligated to grant the request. The OLT may deny the request or may require a hearing with the parties before granting the adjournment. If someone objects to postponing the hearing or if the OLT denies the request, you may have to request a date to bring a Notice of Motion for an adjournment. For information on motions, please see the “Motions” section of this guide.

How does the OLT decide adjournment requests?

Hearing events will not be postponed or adjourned except under extraordinary circumstances.

In deciding whether to postpone a hearing event, the OLT will consider whether a delay is needed to have a fair hearing for all of the persons involved, as well as the costs or detriment of delaying. The OLT may also postpone a hearing event if it believes that a delay will assist with the fair, just, and cost-effective determination of the issues before it.

As an example, if discussions are nearing a settlement, the OLT may agree to postpone the hearing event to allow the parties to resolve or narrow the issues. In contrast, hiring a lawyer, representative, or expert shortly before a hearing is not a good reason for delaying a hearing event.

What if I need to postpone the hearing event because of an emergency?

In an emergency, the OLT may postpone a hearing event even if all of the parties do not agree. The OLT may grant last minute adjournments for emergencies, such as sudden illness to a Member, representative or witness that occur close enough to the hearing event that a replacement cannot be found.

Motions

For more information on motions, please see Rule 10 of the OLT’s Rules of Practice and Procedure.

What is a motion?

A motion is a written or oral request made by a party (or parties) to the OLT to obtain direction before or during a hearing event (e.g., a person may ask for certain documents to be presented, ask to have clarification on a procedure, or ask to have the proceedings dismissed).

If the request to hear a motion is granted, a motion hearing will be held either in person, in writing, by video or teleconference. At the motion hearing, the requestor (i.e., the moving party) will be asked to give reasons supporting their request. The other parties will then have an opportunity to provide their submissions on the request (i.e., supporting, opposing or not taking a position on the requested motion).

Some examples of issues that may be dealt with by motions are requests for:

How do I bring a motion?

To bring a motion, you must advise the OLT in writing, describing why you wish to bring a motion, and request a date. The OLT may:

If your request for a motion hearing is granted, the OLT will advise you of the date, time, and location of the motion hearing. Alternatively, the OLT may determine that the motion should be held in writing, in which case the OLT will inform the parties.

Once you receive a date from the OLT, you must send the other parties:

Notice of Motion and Affidavit forms are available on the “Forms” page of the OLT website.

How will the motion hearing be held?

A motion will often be heard through an oral hearing, which may be in person or remote (i.e., by telephone or videoconference). Motions that involve less complex issues or do not require further explanation from the parties may be heard in writing.

In deciding the format of the motion hearing, the OLT may consider:

When do I deliver a Notice of Motion?

For a motion held in person, by telephone, or by videoconference, you must deliver the Notice of Motion and all supporting documents to the OLT and the other parties at least 15 days before the motion hearing. You will have to file a sworn statement (i.e., an affidavit of service) with the OLT either before or at the motion hearing, confirming that this was done.

For a motion heard in writing, you must deliver the Notice of Motion and supporting documents within 15 days of the OLT’s notice that the motion is to be held in writing.

Can a party respond to a Notice of Motion?

Yes, a party can respond to a Notice of Motion by delivering a Notice of Response.

The Notice of Response should:

  1. state the response to be made, including a reference to any statutory provision or Rule to be relied on;
  2. list the documentary evidence to be used at the motion hearing; and
  3. include an affidavit setting out a brief and clear statement of the facts upon which the responding party will rely.

For a motion held in person, by telephone, or by videoconference, the Notice of Response and all supporting documents must be delivered to the OLT and the other parties at least 7 days before the motion hearing. The responding party must file a sworn statement (i.e., an affidavit of service) with the OLT either before or at the motion hearing, confirming that this was done.

For a motion heard in writing, parties must deliver a Notice of Response within 7 days of the date of the moving party’s Notice of Motion.

The party that brought the motion may then file a reply submission. A Reply to the Notice of Response must be served at least 3 days before the motion hearing or, for motions heard in writing, within 3 days of the date of the Notice of Response.

Can a motion be made at the beginning of a hearing?

Motions may be brought at an in-person or electronic hearing with the permission of the Member(s). The OLT will generally only hear new motions brought without notice during hearing events if the need for the motion arises out of specific events related to the hearing or for the purpose of addressing new evidence at the hearing.

Affidavits

What is an affidavit?

An affidavit is a written statement of facts or other evidence that you affirm or swear by oath is true. At some point during the OLT process, you may be asked to produce an affidavit for a hearing event.

Why do I need an affidavit?

An affidavit may assist the OLT in a number of circumstances. It may contain facts or other evidence that is in dispute before the OLT and may assist the OLT in understanding and determining the issues at a hearing event. Affidavits may also be relied upon in written hearing events, where witnesses are not called upon to give oral evidence and the OLT relies entirely on written evidence. An affidavit of service may also be required, as proof that a notice of motion or other materials were served upon the parties and any other person directed by the OLT. The party required to give notice of a hearing event is also required to file an affidavit of service with the OLT.

Who can sign/commission/notarize my affidavit?

Before filing your affidavit, you will need to sign it to confirm that the information included in your statement is true. At the same time, you will also need someone to commission your affidavit. This person also signs and dates the affidavit, to confirm that the document was sworn or affirmed before them.

Only certain people are authorized to commission an affidavit. Your local municipal office may have a person on staff who can sign your affidavit. Someone who is a lawyer, commissioner or notary public (a person who is able to affirm and/or swear to a written statement by law) may also be able to sign your affidavit.

What information needs to be included in my affidavit?

You should include all facts and information that you wish for the OLT to rely upon. Please note that generally only someone qualified as an expert witness may give opinion evidence.

For your reference, (1) an Affidavit, (2) an Affidavit of Service, and (3) Notice of Hearing Event – Affidavit of Service are all available on the “Forms” page of the OLT website.

Recovering Hearing Costs

For more information on Recovering Hearing Costs, please see Rule 23 of the OLT’s Rules of Practice and Procedure.

Can I recover my hearing costs?

If you believe that another party involved in your matter acted improperly, you may ask the OLT to order that party to pay some or all of your costs. It is unusual for the OLT to order an award of costs against another party. Unlike in court proceedings, costs awards are not routinely granted. The OLT may only order costs if the party’s conduct was unreasonable, frivolous, or vexatious.

Some examples of improper activities include:

The party being asked to pay will also be given a chance to respond.

Please note that a party’s improper conduct does not automatically entitle the remaining parties to a cost award. The OLT will take into account a number of factors in considering a request for costs, including the magnitude of the improper conduct and the offending party’s circumstances.

How do I request to recover my hearing costs?

In order to make a request for costs, you must notify the OLT and the party that you are seeking costs from either before the hearing ends or within 30 days after the OLT’s written decision is issued. The notice must indicate that (1) that you are seeking costs, (2) who you are seeking costs against, and (3) the approximate amount of costs that you are seeking.

Cost requests are typically heard in writing. The OLT may direct you to file written submissions or a notice of motion, in which case you must file and serve this documentation within 35 days of the OLT’s direction. Your written submission or notice of motion must include:

The other party will have an opportunity to respond unless otherwise directed by the OLT. If you served written submissions, the responding party must provide their written response within 15 days of receiving your written submissions. If you served a notice of motion, the responding party must provide their Notice of Response at least 7 days before the date of the motion, in accordance with Rule 10. The party seeking costs will the have an opportunity to reply in accordance with the OLT Rules.

What expenses can I include in my request for costs?

The OLT may order that you receive reimbursement for your expenses related to preparing for and attending a hearing event. These expenses may include lawyers’ fees for preparation and hearing time, travel and accommodation expenses, costs for materials used for presentations, as well as consultant and witness fees.

The OLT will generally require documentation to verify these expenses.

Decisions

For more information on Decisions, please see Rule 24 and 25 of the OLT’s Rules of Practice and Procedure.

How can I get a copy of a decision?

When a decision is issued, it is sent to parties, participants, and anyone who requested to be notified. You can also access issued decisions on the “Decisions” page of the OLT website.

When will I receive a decision?

The OLT is committed to the timely resolution of the matters before it and aims to issue its decisions as quickly as possible. While many decisions are issued within 90 days of the hearing, some matters may take longer, depending on the complexity of the issues.

How are decisions enforced?

When issuing decisions, the OLT expects that parties will respect and comply with its decision. If an individual or group feels a decision is not being adhered to, they can request a certified copy of the decision from the OLT and file it with the courts, after which it can be enforced as a certified court order.

I don’t agree with OLT’s decision – can I ask them to review it?

Yes, you may request the OLT to review its decision if you are a party (with some exceptions, including decisions made under the Mining Act and certain pre-Bill 108 sections of the Ontario Heritage Act). For the OLT to consider reviewing one of its decisions, you need to establish that the OLT:

You must file notice of a request for a review with the OLT within 30 days of the date of the OLT’s written decision. A request for review must include:

The fee to request a review is listed on the “Fee Chart” of the OLT’s website.

The OLT may not consider your request if:

If the OLT is satisfied that the request qualifies for review, the OLT may grant the request if it raises a convincing and compelling case. The OLT also may hear a motion or ask the parties to reconvene for a rehearing of the matter. If a motion is scheduled, the requestor will need to provide the notice of motion and supporting materials to the other parties who attended the hearing, at least 15 days before the date of the motion hearing or in accordance with the OLT’s directions. After hearing the review motion, the OLT may decide to schedule a re-hearing, or it may reject the request.

Can I appeal the OLT’s decision?

Yes, in many cases, a decision of the OLT may be appealed to the Divisional Court, but only on a question of law. Generally, a party to the OLT decision is first required to file a motion with the Divisional Court for leave (i.e., permission) to appeal. For more information, see section 24 of the Ontario Land Tribunal Act.

There are some exceptions as many environmental statutes allow an appeal of the OLT’s decision directly to the Divisional Court on a question of law without requiring a motion for leave. Some decisions (for instance, some Conservation Authorities Act matters) are final and cannot be appealed. It is important that you review the relevant legislation to determine your appeal rights.

In some cases, you may instead bring an application for judicial review of an OLT decision to the Divisional Court under the Judicial Review Procedure Act.

A motion, appeal or application to the Divisional Court must be filed in accordance with the Rules of Civil Procedure under the Courts of Justice Act.

Withdrawals

How do I withdraw before the case is closed?

If you no longer want to be a party to an OLT matter, you must send a written notice of withdrawal of your objection, application or appeal to the OLT and the governing authority or clerk of the municipality, if applicable. Once a withdrawal request is received, the OLT will send a letter of confirmation of the withdrawal to you and all other parties. You will no longer be involved in the matter. If you are the property owner and the proceeding is continued by other parties, you will be kept informed of the status of the proceeding.

If I withdraw, will the OLT matter continue?

Generally, your role in the proceeding ends once you withdraw from the matter. Whether a proceeding continues without you depends on the nature of the issue before the OLT. If there are other objecting parties or appellants, or if the OLT is required to provide recommendations to the municipality, the matter may continue.

Planning Matters

This section applies to common appeals brought under the Planning Act. You should review Rule 5 of the OLT Rules and the relevant section of the legislation that you are bringing an appeal under to be sure that you are filing correctly.

Who can file an appeal?

Generally, you may file an appeal of a municipal decision if you submitted oral or written comments to the municipality/approval authority prior to a decision of council or at the statutory public hearing. If you wish to appeal a non-decision on an application, there may be other restrictions on who can appeal and when that appeal can be filed.

Please refer to the specific section of the Planning Act you wish to file your appeal under to confirm you have a statutory right to file an appeal.

How can I file an appeal?

The Notice of Decision from the municipality or approval authority will notify you as to how you should file your appeal. Appeals are generally filed with the municipality or approval authority and then forwarded to the OLT.

If you wish to file an appeal, you must submit the completed appeal form within the legislated timelines, along with the required filing fee. Your appeal form should clearly state the grounds for appeal.

In describing your grounds for appeal, provide reasons for your objection to the Official Plan, by-laws or municipal decision. If you intend to make one of the following arguments, you must explain how the decision or by-law at issue:

Heritage Matters

This section applies to common appeals brought under the Ontario Heritage Act. You should review Rule 5 of the OLT Rules and the relevant section of the legislation that you are bringing an appeal under to be sure that you are filing correctly.


Effective July 1, 2021, the amendments to the Ontario Heritage Act as part of Bill 108, the More Homes, More Choice, Act 2019 came into force. The information in this section relates to the pre-Bill 108 appeal process.  For more information on the Bill 108 changes to the heritage appeal process, please visit the “Heritage Process” page.


Who can object or apply to the OLT?

Any member of the public, residing in Ontario, can object to a proposed property designation, or proposed repealing by-law within the 30-day objection period.

An owner of a designated property may object to a proposed amendment to a designating by-law within the 30-day objection period.

An owner of a designated property may apply for a hearing where council refuses an application to repeal the by-law or part thereof and where council refuses an application or a permit to alter the designated property or imposes terms and conditions upon a permit to alter the designated property within the 30-day application period.

Please refer to the specific section of the Ontario Heritage Act you wish to file your objection or application under to confirm you have a statutory right to file an appeal.

What happens if a settlement is reached at mediation?

If a full settlement is reached at mediation, each objector and the property owner (if applicable) must submit a letter of Withdrawal of Objection to the OLT, or the municipality must submit a letter of Withdrawal of the Notice of Intention to Designate. The case is then closed.

For more information on mediation before the OLT, please view the “Mediation” section of this guide.

What type of decision can the OLT make in Ontario Heritage Act objections/appeals?

Generally, the OLT issues a report with recommendations to the municipal council, making recommendations based on the evidence presented and arguments made at the hearing, within 30 days after the hearing, but a later release does not invalidate the hearing process. The OLT’s case file is then closed. The municipal council makes the final decision on the matter, taking the OLT’s report into account.

Recent amendments to the Ontario Heritage Act will change this process. The OLT will issue a final decision to decide the appeal following the hearing and will not issue a recommendation report. That amendment will come into effect upon the date of proclamation of Bill 108.

Environmental Matters

This section applies to common appeals brought under the following legislation:

You should review Rule 5 of the OLT Rules and the relevant section of the legislation that you are bringing an appeal under to be sure that you are filing correctly.

Appeals regarding the Niagara Escarpment Commission’s Decision on a Development Permit Application

What is a development permit appeal?

Most developments within the Niagara Escarpment Plan Area, including changes to land use, require a development permit from the Niagara Escarpment Commission (the “Commission”). Examples of applications for development permits include proposals for new single dwellings and other buildings, quarries, wineries, irrigation or recreational ponds, altering the grade of land, and changes in the use of any land, building or structure.

An application for a development permit is submitted to the Commission for review by one of its land use planners. The planner then prepares a staff report with a recommendation to the Commission. The Commission may issue, refuse or impose conditions on the development permit.

Who can appeal a development permit decision?

The following persons may appeal the Commission’s decision regarding a development permit application:

An appeal results in a public hearing conducted by a Hearing Officer appointed under the Niagara Escarpment Planning and Development Act. The person who has applied to the Commission for the development permit is referred to as the “Applicant”. The Applicant may appeal the approval, conditions or a refusal of a development permit, in which case the Applicant is also the “Appellant”. Any other person who appeals the Commission’s decision regarding a development permit application is also referred to as the “Appellant”.

What is the deadline for filing an Appeal?

Within 14 days from the date of the mailing of the Commission’s decision, the Appellant must file a Notice of Appeal by mail, fax or email with the Commission. The Notice of Appeal must set out the reasons for the appeal.

In determining whether a Notice of Appeal has been filed in time, “days” are calculated as calendar days. There are no provisions under the Niagara Escarpment Planning and Development Act for extending the time to file an appeal. If a Notice of Appeal is not filed on time, the OLT does not have the authority to hold a hearing.

What is the role of the Hearing Officer?

The Hearing Officer will conduct a public hearing about the Commission’s decision on the development permit application. The Hearing Officer will then report a summary of the representations made during the hearing, and their opinion on the merits of the Commission’s decision, to the Minister of Natural Resources and Forestry.

The Hearing Officer is required to take into account the objectives of the Niagara Escarpment Planning and Development Act and the requirements of the Niagara Escarpment Plan.

Development permit appeals are also governed by the OLT Act, the Statutory Powers Procedure Act and the OLT’s Rules of Practice and Procedure.

Under the Niagara Escarpment Planning and Development Act, the appeal may result in one of the following ways:

  1. If the person who appealed the Commission’s decision withdraws their appeal or fails to appear at the hearing, the Commission’s decision is deemed to be confirmed.
  2. The Hearing Officer may decide that the Commission’s decision was correct and should not be changed. In this case, the Commission’s decision will be deemed to be confirmed. The Hearing Officer’s decision is final. (This option is not available if the Commission’s decision was appealed by a municipality.)
  3. The Hearing Officer may amend the terms and conditions of the development permit, and the Commission’s decision will be deemed to be confirmed if:
    • the Commission’s decision was to issue a development permit;
    • the parties who appeared at the hearing have agreed on all of the terms and conditions that should be included in the development permit, and all of these terms and conditions are set out in the Hearing Officer’s report; and,
    • the Hearing Officer expresses the opinion in their report that, if the Commission’s decision included the terms and conditions as agreed to, the decision would be correct and should not be changed.
  4. In this case, the Commission’s decision will be deemed to be a decision to issue the development permit with the terms and conditions as agreed to. The Hearing Officer’s decision is final.

  5. In all other cases, the Minister, after considering the Hearing Officer’s report, may confirm or vary the Commission’s decision, or make any other decision that in their opinion ought to have been made. The Minister’s decision is final.

When will the Hearing Officer’s report be released?

The Hearing Officer will make a report to the Minister of Natural Resources and Forestry within 30 days after the conclusion of the hearing, or within a longer period if the Minister allows it.

If the Hearing Officer makes a final decision on the merits of the Commission’s decision, then a copy of the Hearing Officer’s report is sent to all parties when it is sent to the Minister.

If, however, the Hearing Officer makes a recommendation to the Minister, the Minister will release a final report to the parties advising them of the Minister’s decision and the Hearing Officer’s recommendation. The Minister is not bound by the Hearing Officer’s recommendation. The Minister’s decision is final.

Applications to Amend the Niagara Escarpment Plan

What is a Plan Amendment?

Any person, ministry or municipality (referred to as an “Applicant”) may propose an amendment to the Niagara Escarpment Plan. As way of example, this could include a proposed development that is not a permitted use under the Plan. To authorize the development, the Applicant must bring an application for an amendment to the Plan either to change the Plan’s permitted uses or development criteria, to change the land use designation of the subject property, or to remove the subject property from the Plan Area entirely.

How is an application for a Plan Amendment processed?

Once an application for a Plan Amendment is submitted to the Commission, it seeks comments by publishing a notice in the local newspapers notifying the public of the proposed Plan Amendment and by circulating a copy of the application to the local municipalities, ministries, agencies and advisory committees. The comment period usually lasts between three to four months.

After the comment period has passed, the Commission will appoint one or more Hearing Officers from the OLT to hold a public hearing if there are written objections to the proposed amendment. The purpose of the hearing is to receive representations from the public about the proposed Plan Amendment.

Within 60 days or longer if the Commission allows, the Hearing Officer will provide the Commission and the Minister of Natural Resources and Forestry with a report summarizing the representations made during the hearing, and their recommendation on whether the Plan Amendment should be accepted, rejected or modified.

After considering the report, the Commission submits its recommendation to the Minister of Natural Resources and Forestry. In some cases, as set out in the Niagara Escarpment Planning and Development Act, the Minister of Natural Resources and Forestry may approve, modify or refuse the amendment, or may be required to submit the Plan Amendment with their recommendations to the Lieutenant Governor in Council. The Lieutenant Governor in Council may approve, modify or refuse the Plan Amendment.

How is the hearing conducted?

Section 33 of the Public Inquiries Act, 2009 applies to Plan Amendment hearings. The OLT’s Rules of Practice and Procedure are employed with necessary modifications.

Seeking Leave to Appeal: Applications under the Environmental Bill of Rights, 1993

What is Leave to Appeal?

The Environmental Bill of Rights, 1993 (“EBR”) provides the public with a number of rights that permit the public to play a full and meaningful role in protecting the environment. Such rights include advance notice of government proposals (e.g. laws, regulations, policies, programs and approvals) which can have a significant impact on the environment, and the opportunity to comment on those proposals.

In addition, the EBR also provides the public with the right to request permission to appeal the issuance or approval of a Class I or II instrument to the OLT. This is called seeking “leave to appeal”.

What is a Class I or II instrument?

Ontario Regulation 681/94 lists the types of decisions made by the Ontario government that are categorized as Class I or II instruments. Some examples include an environmental compliance approval for the release of contaminants into the air (issued under section 9 of the Environmental Protection Act), a permit for the taking of water (issued under section 34 of the Ontario Water Resources Act), and an order to remove waste from a site (issued under section 43 of the Environmental Protection Act). Please refer to Ontario Regulation 681/94 for a complete list of Class I and Class II instruments.

Can I file an Application for Leave to Appeal?

If you wish to file an application for leave to appeal, you must:

Any person who has exercised their right under the EBR to comment on the instrument when it was proposed on the Environmental Registry of Ontario has demonstrated an “interest” in the decision. Furthermore, any person who could be affected by the decision can also be said to have an “interest” in the decision.

A person who files an application for leave to appeal is referred to as the “Applicant”.

What is the Environmental Registry of Ontario?

The Environmental Registry of Ontario is a website used by ministries of the Ontario government to give public notice of proposals and decisions that impact the environment and provide a platform for the public to comment on those proposals. It also provides information on which decisions can be appealed by the public through the application for leave to appeal process.

The OLT does not operate or maintain the Environmental Registry of Ontario. The Ministry of the Environment, Conservation and Parks is responsible for overseeing the government’s obligations under the EBR, including the Environmental Registry of Ontario

What is the deadline for filing an Application for Leave to Appeal?

An application for leave to appeal must be filed with the OLT within 15 calendar days after the decision for the instrument is posted on the Environmental Registry. If an application is submitted late, the OLT does not have the legal authority to consider the application.

What is the format for evidence on an application for leave to appeal?

Unless the OLT otherwise orders, opinion evidence is required in the form of a sworn affidavit. Evidence may also be entered under oath and the witness will be subject to cross-examination before the Member conducting the hearing.

How do you file an Application for Leave to Appeal?

To file your application for leave to appeal, please complete and file the Appeal Form (A1), including section 4B “Application for Leave to Appeal under the Environmental Bill of Rights”, and attach all relevant materials.

A copy of the form and all relevant materials must be served on the Minister of the Environment, Conservation and Parks, the person who issued the instrument that is the subject of the leave application and the Instrument-holder, on or before the day on which the application is filed with the OLT.

The Minister of the Environment, Conservation and Parks is to be served at:

The Minister of the Environment, Conservation and Parks
777 Bay Street, 5th Floor
Toronto, Ontario M7A 2J3
Fax: 416-314-6713
Email: minister.mecp@ontario.ca

An affidavit of service must also be filed with the OLT when the application is filed.

What happens if the Applicant is unable to submit all the required information at the time of filing?

If the Applicant is unable to submit all the required information at the time of filing, the Applicant should state this in the form. If there is any information outstanding, the OLT will send a letter explaining the deficiencies. The application may be dismissed if the deficiencies are not corrected within the time frame provided by the OLT.

Can the Director and Instrument-holder respond to an application for leave to appeal?

The Director or Instrument-holder may serve and file a response within 15 days after the leave proceeding is initiated, unless directed otherwise by the OLT. The Director shall include in their response a copy of any government policy developed to guide decisions regarding the type of instrument that is the subject of the application.

Can the Applicant reply to the responses filed by the Director and Instrument-holder?

Unless directed otherwise by the OLT, an Applicant may serve and file a reply to the response of the Director or Instrument-holder no later than three days from the date the response is filed.

How is an application for leave to appeal heard?

An application for leave to appeal is to be made and disposed of wholly in writing, except to the extent that the OLT directs otherwise.

What type of decision can the OLT make?

The OLT may grant permission to appeal all or part of the decision that is the subject of the application, or it may dismiss the application and refuse to grant permission.

It is important to note that the OLT is not deciding the merits of the decision to issue the instrument but is only making a preliminary decision as to whether to grant the applicant permission to appeal the instrument.

In making its decision, the OLT must apply the two-part test set out in section 41 of the EBR:

Part 1 – Does it appear that there is a good reason to believe that no reasonable person, having regard to the relevant law and any relevant government policies, could have made the decision?

Part 2 – Does it appear that the decision sought to be appealed could result in significant harm to the environment?

If the applicant can provide submissions and evidence to show that their application meets both parts of the test, the OLT will grant leave (i.e., permission) to appeal. The OLT may grant leave to appeal the decision regarding an instrument in whole or in part.

How long will the OLT take to decide on my application for leave to appeal?

The OLT is required to make its decision within 30 days after the application is filed, unless it determines that, because of unusual circumstances, a longer period is required. If a longer period is needed, the OLT will issue a letter to inform the parties of the new date by which the decision will be issued.

What is the significance of obtaining leave to appeal?

If the OLT grants leave to appeal, the Applicant has the right to file a Notice of Appeal with the OLT within 15 days from the date the Applicant receives the OLT’s decision. To file your Notice of Appeal, please complete and file the Appeal Form (A1).

Where leave has been granted and a Notice of Appeal is filed, the OLT will conduct a hearing to receive submissions and evidence, and decide whether the decision under appeal should be overturned or upheld or, if warranted, whether any additional conditions should be attached to the decision under appeal.

Is the instrument suspended if leave to appeal is granted?

Yes, a decision by the OLT to grant leave to appeal under the EBR automatically suspends the operation of the Class I or II instrument under appeal until the disposition of the appeal (unless the OLT orders otherwise).

How does the OLT hear an Application for Leave to Appeal?

The OLT will assign a panel of member(s) to decide an application for leave to appeal. These applications are dealt with wholly in writing.

Can the OLT’s decision be appealed or reviewed?

No, the EBR does not provide a right of appeal of the OLT’s decision on an application for leave to appeal. However, an application for judicial review of the OLT’s decision can be filed with the Divisional Court. A judicial review application to the Divisional Court must be filed in accordance with the Rules of Civil Procedure under the Courts of Justice Act

A review (i.e. reconsideration) of the OLT’s decision by the Tribunal itself may also be requested under the limited circumstances set out in Rule 25 of the OLT’s Rules of Practice and Procedure

Stays of Environmental Matters

Does filing an appeal result in the Director’s decision not taking effect?

In most cases, filing an appeal does not stop the order from being in force and effect. Decisions of a Director, Risk Management Official, Inspector, Registrar or Deputy Registrar generally take effect as soon as they are issued. Even though a decision is being appealed, it must be complied with immediately, unless the OLT issues a stay order. A stay order postpones the requirements of all or part of a decision.

Some orders, such as orders to pay the costs of work, costs and expenses, environmental penalties or administrative penalties, are automatically stayed on appeal.

The right to apply for a stay is not available for all types of decisions. For example, if a Director has refused to issue an Environmental Compliance Approval, the OLT cannot stay the Director’s decision (i.e. the OLT cannot order the Director to issue the Environmental Compliance Approval before holding the hearing), nor can the OLT stay an order to monitor, record and report.

Additionally, the OLT cannot stay an order if doing so would cause:

How is a stay requested?

A person who intends to apply for a stay of a decision of the Director, Risk Management Official, Inspector, Registrar or Deputy Registrar should indicate their intention to do so in the Notice of Appeal Form. A stay is requested by making a motion to the OLT. After the OLT hears the motion, it will determine whether to issue a stay or not.

A person seeking a stay shall arrange a teleconference call, through the assigned case coordinator, with the OLT, the Director, Risk Management Official, Inspector, Registrar or Deputy Registrar, and any other Parties to seek:

What information is required on a stay motion?

After the date, time and place for the stay hearing are established, the person requesting the stay must serve the Director, Risk Management Official, Inspector, Registrar or Deputy Registrar, and any other parties with a formal Notice of Motion at least 15 days before the hearing of the stay motion and file two copies with the OLT. The OLT may shorten this period if requested. The Notice of Motion must set out the reasons for requesting a stay, and the date, time and place of the motion hearing. The Notice of Motion must also include evidence and submissions regarding:

For full details on what is required in the Notice of Motion, please see Rule 10.4 of the OLT Rules.

Mining Matters

This section applies to common appeals brought under the Mining Act. You should review Rule 5 of the OLT Rules and the relevant section of the legislation that you are bringing an appeal under to be sure that you are filing correctly.

How can I file an appeal?

To file an appeal, you must notify the OLT in writing and outline your case under the relevant legislation. You are expected to use the appeal form available on the OLT’s webpage.

For Vesting Order applications under section 74 of the Mining Act, you will also need to provide:

For applications or appeals under sections 68, 69, 79, 105, 112, 152 and 175 of the Mining Act, you will also need to provide:

For Vesting Order applications under section 181 or 196 of the Mining Act, you will also need to provide:

What is the deadline for filing an appeal?

The deadline for filing an appeal is generally 30 days after the decision of the Provincial Mining Recorder has been recorded, if applicable. You should review the relevant section(s) of the legislation and/or the Notice of Decision you are appealing to confirm the statutory deadline.

Glossary

Please refer to the OLT’s Rules of Practice and Procedure for additional defined terms.

Adjournment – means a postponement of a hearing event.

Affidavit – means a written statement made under oath or affirmation that is confined to facts or other evidence the deponent could give if testifying as a witness before the Tribunal that is substantially in the form set out in Rule 4D of the Rules of Civil Procedure.

Appellant – means a person who initiates and brings an appeal to the Tribunal;

Appeal record – means a collection of documents provided to the OLT as part of the appeal and compiled either by the appellant or the municipality/approval authority (see Rule 5.4 of the OLT Rules).

Applicant – means a person who makes an application to the Tribunal and includes a person requesting a matter be referred to the Tribunal. The term “applicant appellant” may also be used to describe an applicant when that person brings an appeal to the Tribunal.

Case Management Conference (CMC) – means a hearing event convened prior to the hearing on the merits of the appeal.

Cross-examination – means the questioning of a witness called by the opposing party.

Decision – means a record issued by the Member(s) which may contain order(s) or directions. A decision is final only when the OLT issues an order (the OLT usually issues the decision and the order in one document).

Electronic Hearing – means a hearing event held by teleconference, videoconference or some other form of electronic technology allowing the parties, participants, and the Tribunal to hear or hear and see one another or their representatives, or any witnesses throughout the hearing event.

Hearing Event – means a procedure held by the Tribunal at any stage of a proceeding and includes a motion, case management conference and hearing, whether these are held in the form of an in person hearing, electronic hearing or written hearing, and does not include a cross-examination on an affidavit not held before the Tribunal.

Mediation – means the intervention into a disputed matter or matters before the Tribunal by a Tribunal Member, or alternatively, a Mediator approved by both the Chair and the Ministry of the Attorney General, to facilitate discussion and negotiations among the parties and assist them in developing a mutually acceptable settlement of the dispute, all of which is conducted on a confidential basis.

Motion – means the formal method for a party to request that the Tribunal make a decision or issue an order at any stage in a proceeding or an intended proceeding.

Notice of Hearing – means a document which provides notice of the date, time and location of a hearing, as well as the subject of the matter and the parties to the matter.

Objector – means a person or corporation who has served a notice of objection to the clerk of the municipality.

Oral Hearing – means a hearing event which allows for oral submissions by the parties or their representatives. It may refer to an in-person hearing event, or an event held by video or teleconference.

Order – means a direction from the OLT to a party or parties, included in the final or interim decision of an appeal.

Owner – means a person or corporation who is registered on title in the proper land registry office as the owner of the subject property.

Participant – means a person who is not a party to a proceeding and is only permitted to make or file a written statement to the Tribunal upon such terms as the Tribunal may determine in respect of the proceeding.

Party – includes a person entitled by the statute under which the proceeding arises to be a party to the proceeding and includes those persons whom the Tribunal accepts or adds as parties on such terms as the Tribunal may determine.

Representative – means a person authorized under the Law Society Act, R.S.O. 1990, c. L.8, as amended, or its By-Laws to represent a person in a proceeding before the Tribunal, and this includes legal counsel or the individuals that are authorized to provide legal services.

Settlement Conference – means a discussion held in a proceeding amongst the parties or their representatives and the Tribunal to attempt to resolve all or part of a matter by discussion or mediation and includes a mediation session.

Summons – means a written order of the OLT ordering a person to appear before it as a witness, subject to a penalty for failing to comply.

Teleconference Call – means a hearing event that is held over the telephone.

Video Hearing – means a hearing event that is held using videoconferencing software.

Visual Evidence – means images or images with sound intended to be introduced into evidence at a hearing event and includes computer-generated images, photographs, maps, videos, plans, drawings, surveys, models and overlays;

Witness – means a person providing factual or opinion evidence relevant to the issues at the hearing. Only a person qualified as an expert witness may give opinion evidence.

Written Evidence/Materials – means material introduced into evidence at a hearing event and includes reports, letters, correspondence, notices, memoranda, forms, agreements, emails, charts, graphs, books of account, and any other written communication recorded or stored by means of any device.

Written Hearing – means a hearing event held by means of the exchange of documents whether in hardcopy form or by electronic means.