By Pepper Parr
June 20th, 2024
BURLINGTON, ON
Few people understand just what the Ontario Land Tribunal (OLT) is in place to do.
It gets described as an unelected body that consistently fails to respond to what some people in a community want.
Understanding the rules will help in understanding the decisions the OLT makes.
The Millcroft decision disappointed just about everyone in that community. There were two community groups who were involved as participants. Unfortunately the two groups could not work as one which resulted in the Member admonishing one of the groups for using data that was shaped to create an impression that was not correct.
Three lawyers representing the parties; two community groups that couldn’t agree on what the issue was – all focused on a community built around a golf course. The developers won – but there is a heavy price in what they are required to do when they start construction of what is now 90 homes – not the original 98.
In making a decision with respect to an OPA, ZBA, and PoS appeals, the Tribunal must have regard to matters of provincial interest as set out in the Act.
The Act requires the Tribunal’s decision be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform to the applicable Growth Plan which, in this instance, is a Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019
When hearing Appeals related to Burlington the Tribunal has to first briefly summarize the policy scheme in regard to the previous OPA 117 and the new OP 2020 and the in-force-and-effect OP 1997.
Burlington’s most recent Official Plan is itself stuck at an OLT hearing that was brought about when more than a dozen developers appealed the Official Plan that was put in place by the current city council
At a recent hearing the Member said the following: (In the OLT world the person making the decision is referred to as a Member of a Tribunal)
“For the benefit of the members of the public that are here today, I would like to make a couple of general statements about the way the Board reaches its decisions. We can’t make decisions with our hearts, because once you do that, you make bad decisions. We do not make decisions arbitrarily because to do that, you need the wisdom of Solomon and very few people have that. What we do is get the facts which are obtained from the evidence or any reasonable inference that can be drawn from that evidence and then apply the law of the land, including approved government policy. Whatever decision we arrive at doing that is the one we are obliged to give.”
What this comes down to is the quality of the evidence that is given and how it stands up to both examination and cross-examination.
Each side then looks for the best witness they can find or afford. Good lawyers know how to ask the questions that will get the answers they need to make their case. At times not asking a question is the path taken.
All a Member can do is make a decision based on what they hear.
Unfortunately the rules the OLT have in place make it very difficult for media to report in depth. We are not allowed to record what is said, we are not allowed to use any of the visual material unless we obtain permission to do so – and we are required to get that permission BEFORE the hearing starts.
Given that we don’t know what is coming it is hard to be specific when asking for visual material.
In a future article we will give you examples of how strong legal talent can impact a decision made by a Member.
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Stephen White
I agree with you but the OLT and OMB have been out of control for decades. McGuinty and Wynne didn’t modify them to remove the developers’ imbalance. Ford’s directions only make it harder for any municipality to prevail.
Pepper,
Your question is very valid. Doubt the residents will ever find out what instructions were given to outside counsel by the city’s legal department.
The instructions given seem to be the same for all appeals – the results are always the same the City is the loser.
Marshall,
I have been told that any outside lawyers, consultants etc. that are hired follow the lead set out for them by the Municipal legal department.
Editor’s note: A corporation or an individual never hires a lawyer without giving them instructions. The question for the people of Burlington should be – what were the instructions given.
A forum which is heavily weighted in favour of the provincial government’s policy mandate, that is structured so that it is so complicated only lawyers can discern its convoluted operations and machinations, which favours the side (usually developers) who have the money and resources to pay for expensive legal counsel, which pays only lip service to the needs of local residents, and which doesn’t permit full reporting by the press, can hardly be described as fair, equitable, transparent let alone, just.
I guess in Doug Ford’s macabre universe though it’s all about giving the illusion of fairness rather than actually mandating it.
Absolutely agree Stephen – but this is different from COB’s engagement process how?? Smoke, mirrors, psychopomp (that’s for Sharman) and outright deceit.
Perhaps my perception is faulty but if it was as fair and orderly as stated then there would not be preponderance of decisions in favour of developers. I find it hard to believe considering the number of appeals that the City of Burlington has lost that our council has employed incompetent or inexperienced lawyers and consultants or that the developers are blessed with the opposite.
Am I nuts or do others share my perception?
There was also the city saying no to very reasonable requests to be an exception to Interim Control Bylaws. Then at OLT rescinded objections. What a fiasco with city getting an OLT tongue lashing and taxpayers on the hook for poor legal decisions yet again.