Although Bill 23, misleadingly named the “More Homes Built Faster Act,” was passed in November, we are just starting to see some of the important regulatory changes the sweeping bill allows. Most recently, communities discovered that one provision of the act may make it prohibitively expensive to appeal critically important government decisions, including those relating to land use, community growth, and environmental protection. The Ontario Land Tribunal, where these decisions can be appealed, can now order a losing party to pay the winner’s legal costs – no guidelines need to be used and no justification is required. This change is already having a chilling effect on the willingness and ability of communities to appeal decisions that negatively affect them.
The right to appeal at the Ontario Land Tribunal (OLT)
The OLT is a judicial body that hears and adjudicates appeals of decisions made by local or provincial government related land use planning, environmental and natural features, heritage protection, municipal finance, etc. Communities, municipalities, or corporations can appeal to the OLT to resolve disputes related to decisions on everything from gravel mining to zoning bylaws.
Entering an OLT appeal process is often the last resort for community groups trying to have a say in decisions that affect them. It is an expensive, lengthy, and arduous process that involves hiring lawyers, gathering expert witnesses, compiling documents, attending hearings, and navigating convoluted legal procedures. It is a tremendous burden on community groups with limited resources. Making an appeal to the OLT was already onerous, but Bill 23 makes it financially risky as well.
Corporations, however, are well equipped for these judicial proceedings. For them, the legal fees pale in comparison to the potential profit if they win and, if they lose an appeal, the legal costs are a tax write off anyway. Deep pocketed corporations are quick to appeal municipal decisions at the OLT. And now, municipalities will be even more hesitant to make decisions that corporations don’t like for fear that losing a subsequent appeal might prove too costly.
An OLT appeal is often a David vs Goliath contest for smaller municipalities or community groups. It is very rare that an appeal actually stops an unwanted development, but they often result in extra conditions attached to the approval that is being appealed. Knowing that a community might go to the OLT can encourage proponents to accommodate community concerns in the early stages of the approvals process. However, the latest change put forward by the Ford government tips the scale much more in favour of corporate interest.
Are you unreasonable, frivolous, or vexatious?
Before Bill 23, the OLT relied on Rule 23.9 of the Ontario Land Tribunal Rules of Practice and Procedure, which specifies that costs should only be awarded when a party’s conduct has been “unreasonable, frivolous or vexatious” or that “the party has acted in bad faith.”
The OLT has rarely awarded legal costs against any party to an appeal, mostly because there is very little vexatious behavior, but also because Rule 23.9 sets the bar for bad behavior quite high out of recognition that awarding costs too frequently would limit access to justice.
Now that the Ford government has expressly given the OLT “the power to order an unsuccessful party to pay a successful party’s costs,” a municipality or community group that challenges an unsustainable or harmful development project could be forced to pay simply for losing the appeal – not because they did anything wrong.
The chilling effect on municipalities
Municipalities play a unique role in influencing the outcome of the OLT appeal process. Having the support of the local government in an appeal process significantly strengthens community groups’ cases. But cash-strapped municipalities are risk-averse and are less likely to join an appeal if losing means paying a hefty legal bill.
The change made by Bill 23 has not been incorporated into the OLT rules yet, but this chilling effect is already occurring. Citizens for Safe Groundwater has been working tirelessly to oppose the proposed Hallman Pit in Wilmot Township in Waterloo Region. The proposed gravel pit is right up against residents’ properties and the community is concerned about impacts on ground water, noise, air quality, road safety, and agricultural lands. Following an impressive showing of opposition, with 400 letters sent and 66 delegates at their council meeting, Wilmot township Council rejected the application. Less than a year after that decision, however, a new council was elected, the proponent brought the case to the OLT, and Bill 23 became law. In March 2023, the new township council and their legal counsel did a 180 and decided behind closed doors to settle with the proponent and rescind their rejection of the application.
The decision completely blindsided the local group, which was also frustrated by the lack of transparency around the decision. The mayor of Wilmot shared that the main reason for their decision was the risk of losing at the OLT and not having a say over the project. A neighbouring township, Woolwich, made a similar decision, citing the same fear – that they will be forced to pay the winning side’s cost should they lose the appeal.
The chilling effect of this change in legislation should not be understated. Paired with the other changes put in place by Bill 23 to promote development at any cost, it is now even more difficult to stand up to developers and corporations and their proposals.
We can still fight back
The changes put forward by Bill 23 have yet to become an official OLT rule. The Tribunal, therefore, can’t yet award cost against the losing side without just cause. We must take action, and quickly, to demand that the OLT sticks to the current rule, before the chilling effect prevents more municipalities from entering the appeal process.
Even though most OLT decisions favour the big developers, the corporate polluters, and the gravel companies- it is still critically important that communities have the option to appeal decisions that will affect them, without worrying that they will be ordered to pay for the other side’s high price lawyers in addition to their own. Like the rest of Bill 23, this rule change is another case of corporate interest rewriting the rules and undermining the democratic process. We must defend the integrity of the appeal process and reject this undemocratic rule change.
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