EDITOR’S NOTE: This article originally appeared on The Trillium, a new Village Media website devoted exclusively to covering provincial politics at Queen’s Park.
You could be forgiven if you’ve never heard of the Ontario Land Tribunal.
You wouldn’t have much reason to, unless you’re a developer who wants to build a controversial condo tower, or you’re trying to stop them. In that case, and thousands of others, the OLT, an independent, quasi-judicial body of cabinet-appointed adjudicators, would look at the facts and objectively decide who’s right.
At least, that’s the idea.
In reality, the OLT has tended — rather overwhelmingly — to be quite friendly to developers. The Hamilton Spectator found in September 2022 that 97 per cent of decisions the OLT made that year were in the prospective builder’s favour.
Insiders say that’s not necessarily the OLT’s problem.
In conversations with The Trillium, four well-informed sources who’ve had involvement with the evolving land-use adjudication system detailed how the Ford government’s handpicked former chair created a “toxic” workplace where adjudicators were “punished” in upsetting ways — concerns that the Ministry of the Attorney General eventually investigated. At the same time, its mission warped from objective decision-making to rubber-stamping projects, the sources say.
Many dependable adjudicators have now gone — leaving a less-reliable OLT, now run by a different ally of Premier Doug Ford’s, to handle an increasing caseload, sources said.
Beset by falling housing starts, the Ford government is searching for ways to wring faster decisions from the OLT. Speaking in the legislature in November, Housing Minister Paul Calandra said consultations were set to begin on ways to “prioritize resolutions of certain cases, including cases that would create the most housing.”
The goal is to “speed up decisions” at the OLT, Calandra’s parliamentary assistant, Matthew Rae, said at the time.
Nothing has been publicly shared about this review’s progress.
The OLT itself is a Ford government creation. Its main predecessor, the Ontario Municipal Board (OMB) was plagued by years of sloppy operations, concerns about politically charged appointments and slow decision-making. The previous Liberal government replaced it with a new body, the Local Planning Appeal Tribunal (LPAT).
Just under a year after coming into government, Ford’s PCs passed tweaks to the LPAT, saying the changes would help it work “as efficiently and effectively as possible.”
In 2021, the Ford government, citing “ridiculous” delays, merged the LPAT, along with the province’s four other land-use tribunals, under one umbrella: the OLT. Then-housing minister Steve Clark said the move would “get housing built faster.”
“It depoliticizes the process,” Clark told the house less than a year later.
However, by then, under the leadership of a “friend” of the premier’s, the system had become dominated by interpersonal politics, according to sources’ accounts.
Marie Hubbard, former Newcastle mayor and a former longtime OMB member and interim chair, was appointed associate LPAT chair on an “urgent basis” on Aug. 21, 2019. A regulation change filed by Attorney General Doug Downey six days earlier allowed her to skip the usual “competitive, merit-based” appointment process, including a public job posting. Hubbard, who was 84 years old at the time, was appointed on the same day it took effect.
The regulation change was filed on the same day the former chair, longtime OMB member James McKenzie, resigned.
Three sources who spoke to The Trillium said the Ford government pushed McKenzie out of his role in favour of Hubbard. McKenzie declined to provide comment for this story.
Neither the premier’s office, Downey’s office, nor the OLT responded to questions The Trillium sent before this story was published.
Four sources said the culture shift felt within the system after the Ford government took office deepened under Hubbard. Building housing, rather than giving fair hearings, became the top priority, they said.
"The messaging from the chair was very much, 'Look, we've got all these housing applications here and this government wants housing,’” one source said.
In some ways, she got results. In Hubbard’s last full year atop the system, the LPAT was hitting its 60-day target for issuing decisions 85 per cent of the time. In the year before she was brought in, 2018-19, 72 per cent of decisions were being made within 60 days of a case’s final hearing.
Whereas McKenzie had been lenient towards adjudicators who delivered decisions more slowly than others, Hubbard was not — taking to punishing members who didn’t hit case decision-making target timelines, all four sources said.
One source said while “there was a serious problem with the speed of decisions,” and that they supported Hubbard’s push for quicker turnarounds, her punitive ways to try to solve the problem were counterproductive.
“Marie used a sledgehammer when she should have used diplomacy,” they said.
Hubbard kept a list on display in her office of who she deemed to be underperforming adjudicators, according to three sources. For those whose case decision-making speeds she deemed unsatisfactory, Hubbard was inclined to “bench” — not assigning members to cases for up to months-long stretches, according to three sources, who said she’d also bench adjudicators over personal disputes.
Part-time adjudicators wouldn’t make money from being on the tribunal if they weren’t assigned cases since they’re paid a per diem rate. Full-time tribunal members, meanwhile, make salaries of $110,000 or more.
Two sources said Hubbard would also punish adjudicators by sending them to undesirable locations, often far from where they lived.
From 2019 throughout the LPAT’s transition into the OLT, which was completed in 2021, Hubbard remained in charge of it, getting multiple re-appointments via cabinet signoff.
“Under the leadership of Marie Hubbard — she is a force of nature, Mr. Speaker; I can’t even begin to describe it,” Downey said in March 2021 while debating legislation that would form the OLT.
“She’s very efficient. She’s a real taskmaster with the adjudicators, making sure that hearings happen, that decisions get written, that people get their day in court and they get their decision so they can move on. She’s just doing a wonderful job.”
All four sources, however, said morale plummeted at the tribunal under Hubbard’s leadership. Even some adjudicators who were highly experienced or who worked high caseloads weren’t spared from benchings.
It was “toxic,” according to one former adjudicator, who, along with another source, said staff and adjudicators were told not to speak to one another.
The situation became so dire that the Ministry of the Attorney General stepped in to conduct a workplace review of the OLT, interviewing staff about their experiences, according to two sources. No details have been made public about this workplace review.
Three sources said that some of the system’s best adjudicators left as a result of Hubbard’s leadership.
There were other things under Hubbard’s leadership that staff or members questioned as well, four sources explained.
Two sources recalled two separate times that Ford visited Hubbard at the OLT’s office not far from Queen’s Park, which they found an odd practice for the premier and head of a tribunal.
Hubbard would also take a close interest in particular cases, including — as all four sources pointed out — LPAT’s handling of Toronto’s Rail Deck. She was “obsessed” with it, as one source described.
The Rail Deck refers to the rail corridor just west of Union Station, the CN Tower and Rogers Centre. The land-use tribunal system has served as the stage of consequence in the last few years for the battle that’s played out over what should be constructed overtop the currently exposed stretch of tracks. If covered, the area above the tracks would represent around 15 to 20 acres of prime real estate.
Toronto’s council worked for years on planning to create a new park over the rail lines, estimated to cost taxpayers from $1 to $2 billion.
Meanwhile, in 2013, Carmine Nigro’s Craft Developments bought the “air rights” above the rail corridor, effectively giving the company authority to build above it. Nigro is a close personal friend of Ford’s.
Craft and its partners have wanted to build a mixed-use space that’s condo-heavy with thousands of new housing units.
In December 2017, before Ford became PC Party leader and premier, Toronto’s council — with John Tory as mayor — amended its official plan to designate the area above the tracks for parks and open space, blocking Nigro’s plans. Craft and others looked to appeal the city’s official plan amendment to the tribunal system, putting the developers’ hopes in the hands of the LPAT, not long after its transformation from the OMB.
The initial case was taken off course when the courts ruled that cross-examining witnesses would no longer be permitted under the LPAT, given how the new law shaping its work was written. A new case in early 2019 saw the LPAT rule in favour of the council and its plans to build its Rail Deck Park.
The developers’ hopes were stymied — for the time being.
The Ford government replaced McKenzie with Hubbard via her fast-tracked appointment just over a month later.
Another Rail Deck appeal of Craft’s and others reached the LPAT the next year, with hearings in the case stretching from November 2020 to March 2021.
New partners joined Craft’s Rail Deck development plans in early 2021. Fengate Asset Management, a firm that specializes in real estate investment, announced on April 6 of that year that it, on behalf of the LiUNA Pension Fund of Central and Eastern Canada, had joined a “co-development partnership.”
The chair of that pension fund is Joseph Mancinelli, another political ally of Ford’s, who has since March 2021 been a colleague of Nigro’s on the board of Invest Ontario, a provincial agency tasked with attracting business investments that cabinet appoints members to.
Neither Craft, nor Fengate, nor Mancinelli answered questions The Trillium sent them before this story's publication.
Two months later, another panel of adjudicators issued a ruling in favour of the developers, this time clearing a significant hurdle to their plans to build condos and more at the Rail Deck. The developers’ latest plans include building nine condo towers containing more than 6,000 housing units, while leaving the door open to including park space as well. The City of Toronto is awaiting their official development application.
The bill Downey introduced to combine the LPAT and four other tribunals was also passed in the spring of 2021, leading the OLT to officially be established on June 1 of that year.
Cabinet approved Hubbard’s last re-appointment as OLT chair, a position that came with a $200,000 salary, on Nov. 18, 2021, a few weeks before she turned 87 years old. Sometime around late 2021, Hubbard experienced a significant decline in her health, according to four sources. Gregory Bishop, the OLT’s alternate chair, then took over her responsibilities.
Hubbard died in August 2022.
On Oct. 26, 2022, Downey eulogized Hubbard in the legislature as “a force” and “a visionary.”
“I remember meeting her for the first time. I went into her office and she had a great command of how many files were lined up, what kinds of files, the kind of work that needed to be done, what the time frames looked like …. It was phenomenal,” Downey said. After the meeting, “I actually said to my assistant, ‘I want to be Marie Hubbard when I grow up.’”
Hubbard’s death left an opening at the top of the OLT that was almost immediately filled by Michael Kraljevic, another appointee cabinet fast-tracked “on an urgent basis.” Kraljevic, a real estate professional of three decades, was reappointed to a five-year term six months later, making him set to chair the OLT until 2028.
Kraljevic and the premier also have a history — they reportedly played on the same football team in high school. Decades later, as a city councillor, Ford and his late brother, then-mayor Rob, led two doomed pushes: for Kraljevic to become CEO of Build Toronto (which resulted in multiple board member resignations), and to push forward the preferred waterfront plan of the municipally-owned corporation that Kraljevic led, which included a shoreline monorail and "megamall."
Ford denied at the time that he had tried to unduly influence the appointment in Kraljevic's favour.
In 2019, with Ford now in the premier’s chair, his cabinet appointed Kraljevic to Metrolinx's board of directors.
Less than a year after he took over at the OLT, Ford’s cabinet increased Kraljevic’s pay by six figures over his five-year term.
While the OLT’s budget has more than doubled, and its staffing and members contingent have increased in recent years, sources say the body has increasingly moved to settlement hearings, in which the parties involved came to their own conclusion that the OLT effectively rubber-stamps.
The parties have taken on the work themselves rather than testing a "roulette wheel” of adjudicators, said one source, referencing the variance in their experience and competency.
A funding boost in 2022 had the goal of increasing the number of mediators “to help settle disputes earlier and narrow issues for faster adjudication,” according to the body’s business plan. The OLT plans to “continue to expand and refine its mediation processes.”
The tribunal’s long-standing backlog has continued to grow.
Now, the government’s plan to further accelerate OLT decisions has opposition parties worried about an erosion of local democracy, and the potential for the move to backfire.
“We're hearing from municipalities and even developers who tell us that the uncertain playing field has caused chaos in local planning departments, and has led to developers saying, ‘We don't know if we want to invest in Ontario anymore, because the rules keep changing,’” NDP housing critic Jessica Bell said.
“Any review of the Ontario Land Tribunal must evaluate the nomination process for adjudicators, ensuring that it is done in a fair, transparent, and impartial manner and that selections are made based on merit,” Liberal MPP Lucille Collard, her party’s critic for the attorney general, said in a statement.
The OLT should also be able to adjudicate development disputes “efficiently and effectively” while ensuring “the needs of vulnerable and marginalized populations” and “Ontario’s francophone population” are met, added Collard.
Reform is welcome if it’s done right, to encourage keeping laws in line and approving affordable housing, Bell said.
The OLT should be “a tribunal of last resort,” Bell said, “not a tribunal of first resort for a developer that doesn't like the latest municipal law that impacts their development.”
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