MEMORANDUM OF UNDERSTANDING
THE ATTORNEY GENERAL OF ONTARIO
(hereinafter called the “Minister”)
THE EXECUTIVE CHAIR OF ENVIRONMENT AND LAND TRIBUNALS ONTARIO
(hereinafter called the “Executive Chair”)
1. PURPOSE OF MEMORANDUM OF UNDERSTANDING
1.1 The purpose of this Memorandum of Understanding (MOU) is to clarify the accountability relationships between the Minister and the Executive Chair on behalf of the Environment and Land Tribunals Ontario (ELTO). Further, it sets out the expectations for information exchange and working relationships that support the accountability and governance requirements within a framework that recognizes the independence of ELTO and its Constituent Tribunals.
1.2 Specifically, this MOU establishes:
a. the accountability and governance framework between the Ministry and ELTO;
b. the roles and responsibilities of the Minister; the Executive Chair, ELTO; the Deputy Minister; and the Executive Lead of ELTO;
c. the expectations for the operational, administrative, financial, auditing and reporting arrangements between ELTO and the Ministry.
1.3 ELTO is responsible for adjudicative decisions, resolution of disputes and case management within its statutory mandate, and for the statutory mandate of its Constituent Tribunals, and for the cluster’s ongoing administration. The Minister is accountable to the Legislature for its effective operation. This MOU sets out mechanisms to ensure that the Minister and ELTO each have the information they need to fulfill their responsibilities and that ELTO fulfills its assigned mandate in an efficient, effective and responsible manner.
1.4 A signed copy of the MOU is to be provided to Treasury Board Secretariat.
1.5 The MOU should be read together with the legislation governing ELTO and its Constituent Tribunals. The MOU does not supersede the provisions of any legislation governing ELTO, nor is it intended to interfere with the independence of ELTO or of its Members in rendering adjudicative decisions or in resolving disputes, consistent with the legislation, common law and principles of natural justice. The MOU does not affect, modify, limit or interfere with any of the responsibilities of the Minister or ELTO or its appointees established by law. In the event of a conflict between the MOU and any Act or Regulation, the Act or Regulation prevails.
In this MOU:
- “Accountability and Governance Documents” mean the documents, frameworks, and reports required under the Adjudicative Tribunals Accountability, Governance and Appointments Act (ATAGAA).
- “A&AD” means the Agencies & Appointments Directive
- “Alternate Executive Chair” means the Associate Chair appointed within ELTO as Alternate Executive Chair;
- “Annual Report” means a description of ELTO’s activities during the fiscal year relating to the objectives and planned results in its performance plan, including financial reports and statements;
- “AODA” means the Accessibility for Ontarians with Disabilities Act, 2005 S.O. 2005, c.11;
- “Appointee” means the Executive Chair, Alternate Executive Chair, Associate Chair, Vice-Chair, or Member appointed to one or more of ELTO Constituent Tribunals by the Lieutenant Governor in Council, but does not mean persons employed within ELTO pursuant to Part III of the Public Service of Ontario Act, 2006,35, Sch. A;
- “ARB Act” means the Assessment Review Board Act, RSO 1990, c. A 32, as amended;
- “Associate Chairs” means the Associate Chairs appointed within ELTO;
- “ATAGAA” means the Adjudicative Tribunals Accountability Governance and Appointments Act 2009, S.O. 2009, c. 13, sch. 5.
- “Auditor General” means the Auditor appointed under section 3 of the Auditor General ActS.O. 1990, c. A.35, as amended;
- “Business Plan” means an outline of the objectives and results which ELTO and its constituent tribunals expect to achieve in the coming three years in order to comply with their legislative mandates;
- “Deputy Minister” means the Deputy Attorney General or his or her designate;
- “Directives” means the Directive and operating policies/procedures issued by central agencies such as the Corporate Policy Branch of the Treasury Board Secretariat, the Office of the Provincial Controller of the Ministry of Finance, Treasury Board/Management Board of Cabinet and the Ministry of the Attorney General;
- “ELTO” means Environment and Land Tribunals Ontario, the cluster of tribunals designated under ATAGAA, now composed of the Assessment Review Board, the Board of Negotiation, the Conservation Review Board, the Environmental Review Tribunal and the Ontario Municipal Board, and when used in this MOU, includes each of the Constituent Tribunals;
- “ERT Act” means the Environmental Review Tribunal Act, 2000, S.O. 2000, c. 26, Schedule F, as amended;
- “Executive Chair” means Executive Chair of ELTO;
- “Executive Lead” means the Executive Lead of ELTO;
- “Management Principles” mean accepted business and financial standards and procedures, and accepted standards of ethical behaviour, accountability, excellence in management, and quality service, and includes an adherence to the policies, procedures, guidelines and directives of the Ministry and all relevant central agencies (TB, MBC, Ministry of Finance, Ministry of Government Services);
- “MBC” means Management Board of Cabinet;
- “Minister” means the Attorney General of Ontario;
- “Ministry” means the Ministry of the Attorney General;
- “MOF” means the Ministry of Finance
- “MOU” means this memorandum of understanding, including its Schedules and any written amendments;
- “OMB Act” means the Ontario Municipal Board Act, RSO 1990, c. 0.28, as amended;
- "Performance measures” means measures established by ELTO in order to ensure its accountability in accordance with the principles of modern controllership;
- “PRRT” means Program, Review, Renewal and Transformation. PRRT is a government wide exercise, led by Treasury Board, which examines the interrelationship of government activities on a functional basis, rather than by ministries. The Program Review, Renewal and Transformation planning process is designed around key principles, including looking at how every dollar across government is spent; using evidence to inform better choices and improve outcomes; working across government to best deliver services around the client; and taking a multi-year approach to identifying program transformation opportunities and achieving savings.
- “PSOA” means the Public Service of Ontario Act, 2006, S.O. 2006, c.35, Schedule A, as amended from time to time.
- “Policy Ministry” means the ministry(ies) that sets the legislative and policy framework for the constituent tribunals;
- "Schedules” means the schedules attached to the MOU;
- “TB" means Treasury Board.
- "Tribunals" and “Constituent Tribunals” mean the adjudicative tribunals designated as a tribunal cluster under Ontario Regulation 126/10 (Adjudicative Tribunals and Clusters) made under ATAGAA, as amended from time to time, currently consisting of the Assessment Review Board, the Board of Negotiation, the Conservation Review Board, the Environmental Review Tribunal and the Ontario Municipal Board.
3. ELTO’s LEGISLATIVE AUTHORITY AND MANDATE
3.1 ELTO is a cluster of tribunals designated under O. Reg. 126/10 pursuant to section 15 of the ATAGAA. ELTO’s Constituent Tribunals hold hearings and other proceedings in order to resolve matters referred to them. While ELTO reports to the Attorney General for administrative purposes, ELTO and its Constituent Tribunals are independent in all matters affecting adjudication and the resolution of disputes that come before them, in the assessment and management of adjudicators, and in their relationships, dealings and communications with tribunal users and persons affected by their services.
3.2 Pursuant to its mandate:
ELTO is a cluster of five tribunals that effectively and efficiently resolve disputes related to land use planning, environmental and heritage protection, property assessment, land valuation and other matters.
Within that mandate, the specific mandates of ELTO’s Constituent Tribunals are as follows:
- The Assessment Review Board hears property assessment appeals to ensure that properties are assessed and classified in accordance with the provisions of the Assessment Act. The ARB also operates under a variety of other legislation and hears appeals on property tax matters;
- The Board of Negotiation conducts mediation in the event of a dispute over the value of land expropriated by a public authority;
- The Conservation Review Board conducts proceedings where there are disputes concerning properties that may demonstrate cultural heritage value or interest, or disputes surrounding archaeological licensing. For those cases requiring a formal public hearing, the CRB issues a recommendation report to the final government decision maker;
- The Environmental Review Tribunal hears applications and appeals under numerous environmental and planning statutes. The tribunal also functions as the Niagara Escarpment Hearing Office to hear development permit appeals and Niagara Escarpment Plan amendment applications for this protected World Biosphere Reserve, and serves as the Office of Consolidated Hearings to hear applications for joint hearings where separate hearings before more than one tribunal would otherwise be required; and
- The Ontario Municipal Board hears applications and appeals in relation to a range of municipal planning, financial and land matters including official plans, zoning by-laws, subdivision plans, consents, minor variances, land compensation, development charges, electoral ward boundaries, municipal finance, aggregate resources and other issues assigned to the OMB by numerous Ontario statutes.
3.3 The specific legislative authority for ELTO’s constituent tribunals are found as follows:
- Assessment Review Board: The legislative authority is found in the Assessment Review Board Act.
- Board of Negotiation: The legislative authority is found in the Expropriations Act, R.S.O. 1990, c. E. 26.
- Conservation Review Board: The legislative authority is found in the Ontario Heritage Act, R.S.O. 1990, c. O.18.
- Environmental Review Tribunal: The legislative authority is found in the Environmental Review Tribunals Act.
- Ontario Municipal Board: The legislative authority is found in the Ontario Municipal Board Act.
3.4 The Constituent Tribunals also exercise powers and authority granted under other statutes, including, but not limited to:
- Aggregate Resources Act, R.S.O. 1990, c. A.8,
- Assessment Act, R.S.O. 1990, c. A. 31,
- City of Toronto Act, 2006, S.O. 2006, c. 11, Schedule A
- Clean Water Act, 2006, S.O. 2006, c. 22,
- Consolidated Hearings Act, R.S.O. 1990, c. C.29,
- Development Charges Act, S.O. 1997, c.27,
- Education Act, R.S.O. 1990, c. E.2, and
- Environmental Assessment Act, R.S.O. 1990, c. E.18,
- Environmental Bill of Rights, 1993, S.O. 1993, c. 28
- Environmental Protection Act, R.S.O. 1990, c. E.19
- Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31,
- Municipal Act, 2001, S.O. 2001, c. 25,
- Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2
- Nutrient Management Act, 2002, S.O. 2002, c. 4,
- Ontario Water Resources Act, R.S.O. 1990, c. O.40,
- Pesticides Act, R.S.O. 1990, c. P.11,
- Planning Act, R.S.O. 1990, c. P.13,
- Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Schedule A,
- Safe Drinking Water Act, 2002, S.O. 2002, c. 32,
3.5 O.Reg. 146/10 under the PSOA identifies each of the Assessment Review Board, the Board of Negotiation, the Conservation Review Board, the Environmental Review Tribunal, and the Ontario Municipal Board as a “public body” and a “commission public body”.
4. STATUS AND CLASSIFICATION
4.1 ELTO is not a Crown Agency within the meaning of the Crown Agency Act.
4.2 Each of ELTO’s Constituent Tribunals is designated as an adjudicative tribunal pursuant to O. Reg. 126/10 under ATAGAA.
5. GUIDING PRINCIPLES
The parties agree that they will adhere to the following principles in their relationship:
- The Minister recognises that ELTO exercises powers and performs duties in accordance with its legal mandates. ELTO and its Constituent Tribunals are independent of the Minister and of government in all matters affecting adjudication and the resolution of disputes that come before them, in the assessment and management of adjudicators, and in their relationships, dealings and communications with tribunal users and persons affected by their services.
- The Minister acknowledges that ELTO plays an important and meaningful role in the delivery, interpretation and application of government programs and policies, and should be consulted, as appropriate on the development or proposed amendments to those policies and programs where they may affect the mandate of ELTO.
- The Executive Chair, Alternate Executive Chair, Associate Chairs, Vice-Chairs, Members and the Executive Lead acknowledge that accountability is a fundamental principle to be observed in the management, administration and operation of ELTO.
- ELTO will conduct itself according to Management Principles of the Government of Ontario and the Accountability and Governance Documents developed under ATAGAA. These principles include a commitment to ethical behaviour, and embracing diversity and inclusion.
- ELTO and the Ministry agree to avoid duplication of services wherever possible, subject to ensuring ELTO’s independence.
- ELTO and the Ministry agree to a mutual commitment to shared public service goals and agree to co-operation and co-ordination in achieving those goals, provided that ELTO’s mandate and adjudicative independence are fully respected.
- The Ministry agrees to support ELTO in achieving its goals of a diverse and inclusive organization and service provider.
6. ACCOUNTABILITY RELATIONSHIPS
6.1 The Minister
- The Minister is accountable to the Legislative Assembly for ELTO’s fulfilment of its mandate, its compliance with the AODA, ATAGAA and government administrative policies and, for these purposes, reports and responds to the Legislative Assembly on the affairs of ELTO.
- The Minister is accountable to the Cabinet for the performance of ELTO and its compliance with the AODA, ATAGAA and the government’s operational policies and broad policy directions.
- The Minister is responsible for representing ELTO in the Cabinet and its committees and the Legislative Assembly.
6.2 The Executive Chair
- Under section 17(1) of ATAGAA, the Executive Chair is granted all of the powers, duties and functions assigned to the chair of each adjudicative tribunal within ELTO under ATAGAA, and any other Act or by any regulation, order-in-council or ministerial or MBC directive. As such, the Executive Chair is accountable to the Minister for the performance of ELTO in fulfilling its mandate and for carrying out the roles and responsibilities assigned to the Executive Chair under the constituting statutes, the PSOA, the ATAGAA, this MOU, and applicable TB/MBC and MOF directives and delegation documents.
6.3 Deputy Minister
- The Deputy Minister is accountable to the Minister for the performance of the Ministry, in providing administrative support to ELTO and for carrying out the roles and responsibilities assigned to him or her by the Minister, the ADOA, the PSOA, applicable TB/MBC and MOF directives, and this MOU.
- The Deputy Minister will consult, annually, with the Executive Chair and the Executive Lead in the development of the Executive Lead’s performance management plan and will seek the Executive Chair’s advice on the annual performance evaluation of the Executive Lead.
6.4 Executive Lead
- The Executive Lead is accountable to the Executive Chair to implement policies and operational decisions and reports regularly on ELTO’s performance to the Executive Chair.
- The Executive Lead is accountable to the Deputy Minister for the management of ELTO’s operations and the management and supervision of ELTO’s staff, as delegated to him/her by the Deputy Minister under the Delegation of Authority for Human Resources, pursuant to sections 44(2) and (6) of the PSOA and the relevant collective agreements.
- ELTO’s staff report to, and are accountable to, the Executive Lead for their performance.
7. CONFLICT OF INTEREST
- The Executive Chair is the Ethics Executive for the Associate Chairs, Vice-Chairs and Members for the purposes of PSOA and is responsible for ensuring that they are informed of the conflict of interest rules, including the rules on political activities that govern specially restricted public servants.
- The Executive Lead is designated as the Ethics Executive for the purposes of the PSOA for all public servants of ELTO who are not Appointees. The Executive Lead is responsible for ensuring that ELTO’s staff are informed of the conflict of interest rules, including the rules on political activities that govern public servants and for carrying out the responsibilities of Ethics Executive in accordance with the requirements of the PSOA.
- The Executive Lead is the designated senior position for ELTO in accordance with section 14 of O.Reg. 381/07 under the PSOA.
- Post service obligations of staff, including the Executive Lead, and adjudicators are set out in the ELTO Conflict of Interest Rules.
8. ROLES AND RESPONSIBILITIES
8.1 Role of the Minister
The Minister is responsible for:
- Recommending appointments and reappointments pursuant to the process for Tribunal appointments established by ATAGAA, after consultation with, and after receiving the recommendation of, the Executive Chair.
- Monitoring the activities of ELTO to ensure that its mandate is being fulfilled and that it is in compliance with the accountability and governance documents, and management principles.
- Recommending to TB/MBC any provincial funding to be given to ELTO.
- Reviewing and approving in-year submissions to TB in relation to expenditure increases, re-allocation of funding, report backs, and other issues, as required.
- Directing that a periodic review of ELTO be conducted as necessary and making subsequent recommendations to TB/MBC.
- Reviewing and approving ELTO’s Governance and Accountability Documents, other than its Ethics Plan, and establishing periodic reviews of its functioning.
- Receiving ELTO’s Annual Report and tabling it in the Legislative Assembly.
- Reporting and responding to the Legislative Assembly on the affairs of ELTO.
- Reporting and responding to the Cabinet on ELTO’s performance and compliance with the Governance and Accountability Documents, government’s operational policies and broad policy directions.
- Consulting, as appropriate, with the Executive Chair on significant new directions or when the government is considering regulatory or legislative changes for ELTO, or that may significantly impact ELTO.
- Keeping the Executive Chair informed of the government’s priorities and broad policy directions that may relate to ELTO.
- Ensuring that the Executive Chair is consulted on proposed substantive changes to the governing legislation and regulations and particularly any that affect ELTO’s mandate or the mandates of its Constituent Tribunals, and the services that they provide.
- Determining the need for any review and recommending to TB/MBC on the operation of ELTO and any changes to its structure or role.
- Recommending to TB/MBC the powers to be given to ELTO when a change in the mandate of a constituent Tribunal is being proposed.
- Evaluating the Executive Chair’s performance in light of the Governance and Accountability Documents, including the approved Business Plan.
- Developing ELTO’s MOU with the Executive Chair and signing it into effect.
8.2 Role of the Executive Chair
The Executive Chair is responsible for:
- Keeping the Minister informed of issues or events that may concern him or her in the exercise of the Minister's responsibilities, and ensuring that matters relating to ELTO which, in the opinion of the Executive Chair or of the Minister, are of importance to the Ministry are brought to the attention of the Minister and/or the Deputy Minister in a timely fashion.
- Providing leadership to ELTO and improving the effectiveness and efficiency with which its tribunals deal with the matters before them.
- Directing and monitoring the affairs of the Constituent Tribunals within their mandates as defined by the ARB Act, the ERT Act, the Expropriations Act, the Ontario Heritage Act, the OMB Act and the Governance and Accountability Documents, including the adjudicative and case management functions of the tribunals, and the development of policies for the management of the constituent tribunals.
- Setting the goals, objectives, processes, and strategic directions for ELTO in light of its mandate, the Governance and Accountability Documents, the ATAGAA, the PSOA and this MOU;
- Keeping the Minister informed of issues or events that may concern him/ her in the exercise of his/her responsibilities.
- Ensuring the development of the required Accountability and Governance Documents, including an effective performance measurement and management system for assessing the Tribunals’ performance and for evaluating the performance of Associate Chairs, Vice-Chairs and Members and conducting such evaluations.
- Ensuring that public funds are used with integrity and honesty and that ELTO complies with Management Principles and operates within its approved funding allocation in the fulfillment of their mandates.
- Identifying the required skills, experience and capacity required for ELTO and its constituent tribunals to meet their mandates by notifying the Minister of the need for appointments, reappointments and/or cross appointments of tribunal members.
- Reviewing and approving ELTO’s Business Plan, budget, Annual Report and financial reports, and submitting them to the Minister in accordance with the timelines specified in the applicable TB/MBC and MOF directives and this MOU.
- Reviewing and approving, on an annual basis, ELTO’s diversity and inclusion strategy, including reporting obligations.
- Providing both the Minister and the Minister of Finance with a copy of every audit report, a copy of ELTO’s response to each report, and any recommendations in the report.
- Advising the Minister annually on any outstanding audit recommendations.
- Ensuring that Appointees are informed of their responsibilities under the PSOA with regard to the rules of ethical conduct (Part III of the PSOA), and the political activity rules (Part IV of the PSOA).
- Recording any declared or apparent conflicts of interest for Appointees and advising the Conflict of Interest Commissioner as appropriate.
- Ensuring the Appointees are aware of and comply with the accountability and governance framework established by the ATAGAA, all approved accountability and governance documents, and applicable TB/MBC and MOF directives.
- Ensuring appropriate management systems are in place (financial, information technology, human resources, records management) for the effective administration of ELTO.
- Ensuring that an appropriate framework is in place for the membership and staff of ELTO to receive adequate orientation and training, including training on diversity, inclusion and current environmental influences, to better serve the people of Ontario.
- Ensuring that a process for responding to and resolving complaints from the public is in place.
- Carrying out effective public communications and stakeholder relations for ELTO as its chief spokesperson.
- Cooperating with any periodic review of ELTO directed by the Minister, TB/MBC or the Auditor General.
- Attending and/or making presentations before Cabinet or committees of Cabinet or the legislature on matters concerning the affairs of ELTO when requested to do so.
- Consulting with the Deputy Minister on the annual performance evaluation of the Executive Lead.
- Ensuring that Appointees are trained with respect to requirements for the protection of personal information under the Freedom of Information and Protection of Privacy Act.
- Working with other clusters, where appropriate, on projects that would benefit the ministry’s adjudicative sector as a whole.
8.3 Role of the Deputy Minister
The Deputy Minister is responsible for:
- Advising and assisting the Minister in meeting the Minister's responsibility with respect to ELTO, and ensuring that the Minister is advised of the requirements of the AAD and other directives that apply to ELTO.
- Advising the Minister on the operation of the Tribunals or any changes to ELTO’s structure or role,
- Undertaking, on behalf of the Minister, while respecting ELTO’s authority and independence, assessments or reviews of whether or not ELTO or its Constituent Tribunals are fulfilling their legislative mandates in accordance with approved government policies, including identifying the need for corrective action and recommending ways to resolve any issues that are identified.
- Providing a framework for reviewing and assessing ELTO’s Business Plan and other reports provided to the Ministry.
- Ensuring that the Ministry provides ELTO with the administrative support, financial and other services as set out in this MOU and its attached Schedules.
- Meeting with the Executive Chair as necessary to discuss matters of mutual importance to ELTO and the Ministry, such as the services provided by the Ministry to ELTO and the implementation of central agency and/or Ministry administrative policies.
- Informing ELTO of the financial and administrative, human resources, corporate and other policies of the Ministry and government that apply to ELTO, including those in respect of the Accessibility for Ontarians with Disabilities Act, 2005, French language services, freedom of information, privacy, quality service, workplace harassment and equal opportunities.
- Ensuring that ELTO incorporates diversity and inclusion into its business plan to promote an open and accessible adjudicative justice system.
- The Deputy Minister will ensure, annually, that the Executive Lead’s performance management plan reflects his or her reporting obligations to the Executive Chair and to the Deputy Minister, and the standards to be met in carrying out those responsibilities and obligations. The Executive Lead’s performance management plan will stipulate that the Executive Lead has an obligation to support the Executive Chair effectively and that this forms a part of the Executive Lead’s performance evaluation.
- The annual performance evaluation of the Executive Lead in consultation with the Executive Chair.
8.4 Role of the Executive Lead
The Executive Lead is responsible for:
- Supporting the Executive Chair in meeting his/her responsibilities.
- Providing leadership and managing the day-to-day operational and administrative direction to staff of ELTO to ensure it meets its legislated mandate.
- Working with the Executive Chair, providing executive direction and leadership for the strategic planning, Business Planning and priority setting, performance management systems, the diversity and inclusion strategy and overall operational direction of ELTO.
- Managing the financial affairs of ELTO in accordance with Management Principles and this MOU.
- Establishing and applying financial management frameworks for ELTO.
- Establishing systems to ensure that ELTO operates within its approved Business Plan.
- Keeping the Executive Chair and Deputy Minister informed and up-to-date on all relevant operational matters.
- Maintaining effective communications with the Deputy Minister and the senior management of the Ministry and seeking, as appropriate, advice and support on administrative or management matters of mutual importance from the Ministry.
- Ensuring that formal documents are prepared for, and approved by, the Executive Chair for submission to the Ministry in fulfillment of ELTO’s mandate, including the Business Plan, budget, Annual Report and other documentation as required.
- Recruiting, training and supervising administrative staff in support of ELTO’s functions.
- Ensuring that an appropriate framework is in place for ELTO staff to receive adequate orientation and training.
- In conjunction with the Executive Chair, consulting with the Deputy Minister on any affairs of ELTO that may affect the Ministry’s provision of services under this MOU.
- Establishing a system for the retention and/or archiving of formal ELTO documents and records.
- Ensuring that ELTO staff are informed of their responsibilities under the PSOA with regard to conflict of interest, rules of ethical conduct (Part III of the PSOA), and political activity rules (Part IV of the PSOA).
- Recording any declared or apparent conflicts of interest and advising the Conflict of Interest Commissioner as appropriate.
- Carrying out such responsibilities as may be delegated to him or her by the Deputy or assigned by the Executive Chair under the terms of the Executive Lead’s performance management plan; carrying out the responsibilities as assigned to him or her under all applicable legislation.
- In conjunction with the Executive Chair, directing and monitoring the administrative affairs of the constituent tribunals within their mandates as defined by the constituting statutes, and the Accountability and Governance Documents, including the adjudicative and case management functions of the Tribunals and the development of policies for the management of the Tribunals.
- Ensuring appropriate management systems are in place (financial, information technology, human resources and records management) for the effective administration of ELTO.
- Ensuring that public funds are used with integrity and honesty and that ELTO complies with Management Principles and operates within its approved funding allocation in the fulfillment of its mandates.
- Cooperating with any periodic review of ELTO directed by the Minister or TB/MBC.
- Developing an effective performance measurement and management system for assessing staff of the constituent tribunals and for conducting such evaluations.
- Reviewing and approving on an annual basis ELTO’s diversity and inclusion strategy including reporting obligations.
- Ensuring that a process for responding to and resolving complaints from the public is in place.
- Identifying the staff skills, experience and capacity required for ELTO and its constituent tribunals to meet their mandates and notifying the Executive Chair and the Deputy Minister of such requirements.
- Ensuring ELTO staff are aware of and comply with the accountability and governance framework established by the ATAGAA, all approved Accountability and Governance Documents, and applicable TB/MBC and MOF directives.
- Assisting and/or attending and/or making presentations, as required by the Executive Chair, before Cabinet or committees of Cabinet or the legislature on matters concerning the affairs of ELTO when requested to do so.
- Ensuring that ELTO staff are trained with respect to requirements for the protection of personal information under the Freedom of Information and Protection of Privacy Act.
- Working with other clusters, where appropriate, on projects that would benefit the ministry’s adjudicative sector as a whole.
9. REPORTING REQUIREMENTS
9.1 Business Plan
- The Executive Chair will ensure that the Minister is provided with ELTO’s annual Business Plan for review and approval in a timely fashion that permits review and comment. The Executive Lead will ensure that the Deputy Minister is similarly provided with copies.
- The Executive Chair is responsible for ensuring that ELTO’s annual Business Plan fulfills the requirements of the Agencies & Appointments Directive and related legislation.
- The Executive Chair will ensure that ELTO’s Business Plan includes a system of Performance Measures and reporting on the achievement of the objectives set out in the Business Plan. The system must include performance goals, how they will be achieved and specific timeframes.
- The Deputy Minister will assist ELTO in the development and implementation of its system of performance measurement as needed including performance indicators and performance measures related to the diversity and inclusion strategy.
- Results from the performance measurement plan will be reported and reviewed by all parties annually.
- The Minister will review ELTO’s Business Plan and will promptly advise ELTO whether or not he/she concurs in the directions proposed by ELTO. The Minister will advise the Executive Chair where and in what manner ELTO’s plan varies from government or Ministry administrative policy or priorities, and ELTO will revise their plan accordingly unless issues of adjudicative independence are involved.
- The Executive Chair will ensure that the reports and documents set out in Schedule 2 of this MOU are submitted to the Minister in a timely manner for review and approval.
- The Deputy Minister will ensure that ELTO is furnished with the Ministry’s annual report, business and strategic plans and all relevant promotional and information materials in a timely manner.
9.2 Annual Report
The Executive Chair is responsible for ensuring that ELTO’s Annual Report is submitted to the Minister for tabling in the Legislative Assembly. The Executive Chair will submit the Annual Report within the timeframe set out in Schedule 2 to this MOU.
9.3 Other Reports
The Executive Chair is responsible for:
- Ensuring that the reports and documents set out in Schedule 2 to this MOU are submitted for review and approval to the Minister, Deputy Minister or Ministry according to prescribed time lines.
- At the request of the Minister or Deputy Minister, supplying specific data and other information that may be required from time to time for the purpose of Ministry administration, subject to any restrictions which may interfere or conflict with the integrity of the adjudicative, dispute resolution or decision-making process, or natural justice rights of the parties
“Communications” shall not include discussion or exchanging of non-public information between ELTO personnel and the Minister, Deputy Minister or Ministry staff about specific current, past or future cases to be heard by the tribunals.
Inquiries received by the Minister’s office regarding an active matter or proceeding at a Tribunal will be re-directed to ELTO without comment. Any response made by the Minister’s office to the inquiring party will indicate that the inquiry has been forwarded to ELTO and that the Minister cannot interfere with an adjudicative proceeding, decision or resolution.
The parties to this MOU recognize that the timely exchange of information on the administration of ELTO is essential for the Minister to meet his/her responsibilities for reporting and responding to the Legislative Assembly on the affairs of ELTO. The parties also recognize that it is essential for the Executive Chair to be kept informed of government initiatives and broad policy directions that may affect ELTO’s mandate and functions. The parties, therefore, agree as follows:
- The Executive Chair will keep the Minister advised, in a timely manner, of all planned events and issues that concern or can be reasonably expected to concern the Minister in the exercise of his/her responsibilities. The Executive Lead will similarly keep the Deputy Minister advised.
- The Minister will consult with the Executive Chair, as appropriate, on broad government policy initiatives or legislation being considered by the government that may affect ELTO’s mandate or functions.
- The Minister and the Executive Chair will consult with each other on public communications strategies and publications. They will, as appropriate, keep each other informed of the results of formal stakeholder and other public consultations. The Executive Chair will advise the Ministry of all public communications, advertising and media activities and provide copies of same in advance. Despite the foregoing, ELTO has the right to issue materials such as rules, procedural directions, responses to routine media inquiries and other public information without the prior approval of the Ministry.
- The Minister and the Executive Chair will meet at least annually, or as requested by either party, to discuss issues relating to the fulfillment of ELTO’s mandate.
- The Deputy Minister and the Executive Lead will meet as necessary to discuss issues relating to the efficient and effective operation of ELTO and the provision of services by the Ministry to ELTO.
- The parties agree to adhere to the Communications Protocol set out in Schedule 1 to this MOU.
11. ADMINISTRATIVE ARRANGEMENTS
11.1 Applicable Treasury Board/ Management Board of Cabinet and Ministry of Finance Directives
ELTO is responsible for operating in accordance with all applicable TB/ MBC and MOF Directives, and Public Service Commission directives under the PSOA, applicable Collective and Memorandum Agreements pertaining to staffing, as well as applicable Ministry financial and administrative policies and procedures. Schedule 3 to this MOU provides a list of applicable directives and policies.
11.2 Administrative and Organizational Support Services
- The Deputy Minister is responsible for providing ELTO with the administrative support services listed in Schedule 4 of this MOU, and for negotiating with Ontario Shared Services concerning these services.
- Schedule 4 may be reviewed at any time at the request of either party.
- The Deputy Minister will ensure that the support or services provided to ELTO are of the same quality as those provided to the Ministry’s own divisions and branches.
11.3 Legal Services
- Legal services are provided to ELTO by lawyers employed in the Ministry of the Attorney General. ELTO lawyers provide independent advice and legal services to ELTO, to the Executive Lead and to the Executive Chair as required. It is recognized that a solicitor-client relationship exists between ELTO counsel and ELTO which includes Appointees and staff.
- ELTO may also request legal services where appropriate from the Ministry’s Civil Law Division, and will pay for the cost of these services.
- ELTO may retain outside legal services when it requires expertise unavailable within the Ministry or when the use of a law officer of the Crown would result in a conflict of interest or possible compromise to the independence of ELTO. When ELTO wishes to retain outside legal counsel it shall do so in accordance with the Ministry’s Corporate Operating Policy on the “Use and Retention of Outside Legal Services”. Outside legal counsel that is retained by ELTO reports directly to the Executive Chair.
11.4 Freedom of Information and Protection of Privacy
- The Executive Chair will be considered the “institution head” of ELTO for the purposes of the Freedom of Information and Protection of Privacy Act (FIPPA).
- The Executive Chair is responsible for ensuring that the Ministry is notified of any significant or contentious information requests under FIPPA.
11.5 Records Management
- The Executive Lead is responsible for ensuring that ELTO complies with the TB/MBC Management of Recorded Information Directive and the Archives and Recordkeeping Act, 2006, S.O. 2006, c. 34, Schedule A.
- The Executive Lead is responsible for ensuring that a system is in place for the creation, collection, maintenance, and disposal of records.
11.6 Client/Customer Service
- ELTO shall have a formal process for responding to complaints about the quality of services received by the public and clients of ELTO, as provided in ELTO’s Service Standards Policy required under ATAGAA.
- ELTO’s processes for responding to complaints about the quality of services are separate from and will not interfere with the constituent tribunals’ case-related processes.
12. FINANCIAL ARRANGEMENTS
- ELTO and its Constituent Tribunals are funded out of the Consolidated Revenue Fund pursuant to an appropriation authorized by the Legislative Assembly. In turn, ELTO receives an estimated allocation from the Ministry of the Attorney General annually.
- The Executive Lead will work in consultation with the Executive Chair to prepare a forecast of ELTO’s expenditures based on the proposed allocation for inclusion in the Ministry’s Program Review, Renewal & Transformation (PRRT). The Executive Lead will share this forecast with the Agency and Tribunal Relations Division of MAG. The Executive Chair may discuss this forecast and the financial needs of ELTO with the Minister in sufficient time to be considered by the Minister.
- The forecast provided by the Executive Chair may, after appropriate consultation with the Minister, be altered as required.
- Financial procedures of ELTO must be in accordance with TB/MBC and MOF directives and guidelines, and other applicable Ministry or government direction.
- The financial and administrative framework, including human resources administration, for ELTO is set out in the Ministry’s Financial Delegation Framework documents.
- Recovered costs and other revenues, if any, are paid as received to the Consolidated Revenue Fund, and may not be applied to administrative expenditures of ELTO, unless otherwise provided by law.
- Pursuant to section 28 of the Financial Administration Act, ELTO shall not enter into any financial arrangement or commitment, guarantee, indemnity or similar transaction that may increase, directly or indirectly, the indebtedness or contingent liability of the Government of Ontario without the written approval of the Minister of Finance. The Minister’s approval is required before seeking statutory approval from the Minister of Finance.
12.2 Financial Reports
- ELTO shall keep its accounts and shall provide financial reports or statements on instruction from the Ministry, in accordance with Schedule 2, for consolidation into the public accounts.
- Responsibility for the maintenance of documentation and information to support expenditures is assigned to the Executive Lead as outlined in the policies of central agencies and the Ministry.
12.3 HST Liability
With the harmonization of the Goods and Services Tax and the Provincial Sales Tax, some agencies receive a CVAT rebate under the Comprehensive Integrated Tax Coordination Agreement. This is not applicable to ELTO.
13. AGREEMENTS WITH THIRD PARTIES
If ELTO does have any contractual arrangements with third parties, it will ensure that contract terms are in compliance with applicable government directives.
14. AUDIT AND REVIEW ARRANGEMENTS
- The Minister may direct that ELTO be audited.
- The Ontario Internal Audit Division may also carry out an internal audit, if approved to do so by the Ministry’s Audit Committee or by the Corporate Audit Committee. Also, the Auditor General of Ontario may, at any time, audit any aspect of the operations of ELTO under the Auditor General Act.
- ELTO will promptly provide a copy of every report from an audit to the Minister and the Minister of Finance. ELTO will also provide a copy of its response to the audit report and any recommendations therein. ELTO will advise the Minister annually on any outstanding audit requirements.
- The Executive Chair may request an external audit of the financial transactions or management controls of ELTO at ELTO’s expense.
15. PROCUREMENT ARRANGEMENTS
Procurement required to support the programs and services of ELTO will be done in a transparent manner, consistent with applicable policies and directives, including, but not limited to the Procurement Directive (MBC) and AODA.
16. STAFFING & APPOINTMENTS
- ELTO is staffed by persons employed under Part III of the PSOA. Such persons are eligible for all the rights and benefits accorded under the PSOA and relevant collective agreements.
- ELTO, in its dealings with staff employed under the PSOA, is subject to TB/MBC human resources directives, and Public Service Commission directives under the PSOA.
- The Executive Chair is appointed as a Member of each constituent tribunal by the Lieutenant Governor in Council, and pursuant to sub-section 17(1) of the ATAGAA, has all of the powers, duties and responsibilities of Chair of each of ELTO Constituent Tribunals. Pursuant to sub-section 17(2) of the ATAGAA, the Executive Chair may delegate such functions or responsibilities to Associate Chairs or Vice-Chairs of the Tribunals as he or she considers appropriate, except his/her responsibility as Ethics Executive.
- The Executive Chair is the Chair of ARB, CRB, ERT, OMB and BON. The Chair of the Assessment Review Board is appointed by the Lieutenant Governor in Council pursuant to section 3 of the ARB Act. The Chair of the Conservation Review Board is appointed by the Lieutenant Governor in Council pursuant to section 24(3) of the Ontario Heritage Act. The Chair of the Environmental Review Tribunal is appointed the Lieutenant Governor in Council pursuant to 1(4) of the ERT Act. The Chair of the Ontario Municipal Board is appointed by the Lieutenant Governor in Council pursuant to section 5(2) of the OMB Act. The Chair of the Board of Negotiation is appointed by the Lieutenant Governor in Council pursuant to section 27(1) of the Expropriations Act.
- The members of ELTO’s Constituent Tribunals are appointed by the Lieutenant Governor in Council on the recommendation of the Executive Chair and have the powers and duties assigned to them by legislation and pursuant to their position description.
- ELTO’s full-time and part-time appointees will be remunerated pursuant to the rates identified in Schedule B of the A & AD.
- ELTO’s staff will be remunerated as employees form the Public Service Commission under the PSOA.
17. INTELLECTUAL PROPERTY
If ELTO enters into contracts that involve the creation of intellectual property for the government, it will be ensured that contract terms protect the legal, financial and other interests of the government. ELTO will be guided by the definition of intellectual property as set out in the Managing, Distributing and Pricing Government Information (Intellectual Property) Directive.
18. LIABILITY PROTECTION AND INSURANCE
The operations of ELTO are covered for commercial general liability risks under the Government of Ontario’s Protection Program.
19. EFFECTIVE DATE AND DURATION AND PERIODIC REVIEW OF THE MOU
19.1 Effective Date of MOU
- This MOU takes effect on the date it is signed by the parties. It expires on the earlier of:
- a date five years from the day it is entered into, unless renewed before that day for another five years; and
- the date a new MOU takes effect replacing it, but may continue in effect temporarily pending approval and signature of a new MOU.
b. Without affecting the expiry date of this MOU,
- the Minister and Executive Chair may amend this MOU, or any part of it, by written agreement; and
- either the Minister or the Executive Chair may initiate a review of this MOU by notifying the other by letter.
c. If a new Minister or Executive Chair takes office during the term of this MOU, the Minister and Executive Chair shall either:
- each affirm that this MOU shall continue in force, with or without amendment, for the duration of its term; or
- agree to review and revise the MOU.
d. This MOU shall undergo a full review:
- immediately upon any significant change to the tribunals’ mandates, powers or governance structure as a result of amendments to the ARB Act, the ERT Act, the Expropriations Act, the Ontario Heritage Act or the OMB Act, or any other Act, and
- at least once before it expires.
e. This MOU replaces all existing MOUs involving the Constituent Tribunals in ELTO
19.2 Periodic Reviews
- ELTO may be subject to periodic review at the discretion and direction of TB/MBC or the Minister. The review may cover such matters relating to ELTO as are determined by TB/MBC or the Minister, and may include the mandates, powers, governance structure and/ or operations of ELTO, subject to the ATAGAA.
- The Minister will consult the Executive Chair as appropriate during any such review.
- The Executive Chair and Executive Lead will cooperate in any review.
- Subject to any further written agreements or updates, the parties agree that this MOU entered into between them will satisfy the requirements of s. 11 of the ATAGAA.
Executed this 6 day of February 2017.
The Honourable Yasir Naqvi, Attorney General of Ontario
Bruce Krushelnicki, Executive Chair, Environment and Land Tribunals Ontario
- To establish clear lines of communication between the Ministry (i.e. the Minister’s Office, the Deputy Minister’s Office, and Ministry staff) and ELTO.
- To establish a process for dealing with requests from Ministry staff for briefing material/issue notes.
This supplements the MOU, which defines the specific roles, responsibilities and relationship between the Ministry and ELTO.
ELTO and its Constituent Tribunals exercise their adjudicative and related functions independent of the Government, the Ministry and the Minister, subject only to the provisions, limitations and conditions set out in the ARB Act, the ERT Act, the Expropriations Act, the Ontario Heritage Act, the OMB Act, the ATAGAA, and any other legislation governing ELTO and this MOU.
ELTO’s Constituent Tribunals are Adjudicative Tribunals as designated by the Management Board of Cabinet and ATAGAA. The commitment of the Government to independent tribunals capable of efficiently and effectively fulfilling their mandates requires that the Minister, the Ministry and ELTO establish communication relationships, which are respectful of:
- ELTO’s independent legislated mandates; and
- the Minister’s accountability to the Legislature for the fulfilment of ELTO’s mandates.
III LINES OF COMMUNICATION/PROTOCOLS
- Communication between the Ministry and ELTO
The Minister’s office shall coordinate communication with ELTO through the office of the Executive Chair. The Deputy Minister shall communicate with the Executive Chair or Executive Lead.
- Questions or Complaints about Individual Cases
The parties recognize and accept that it is inappropriate for ELTO to discuss or communicate with the Minister or Ministry about specific cases that are under active consideration by the tribunals.
- Complaints about Tribunal Members or ELTO staff
Telephone or written inquiries from members of the public to the Minister’s Office, or Ministry staff about ELTO's policies and procedures are to be directed to ELTO, either through ELTO public information lines or in writing to ELTO offices. Complaints about the conduct of tribunal Members or employees of ELTO will be directed to the Executive Chair, or the Executive Lead, respectively, in accordance with ELTO’s Complaints Policy.
- Briefing Material/Issue Notes
ELTO will prepare briefing or issue notes for the Minister upon the request of the Minister’s office or the Ministry, so long as such requests do not deal with cases under active consideration by the tribunals, or matters which are expected to come before the tribunals.
ELTO will prepare and deliver to the Ministry background information on specific issues, within the timeframe suggested, in accordance with ELTO’s independent function.
- Ministry's and ELTO's Communication Materials
Whenever practical, the Ministry will give advance notice to the Executive Chair of the general content of documents or messages regarding ELTO's operations and mandates and permit the Executive Chair a reasonable period to provide comments and suggestions.
Whenever practical, the Executive Chair will give the Minister advance notice of the general content of documents or messages of a public nature that might reasonably be expected to be of interest to the Minister. The Executive Lead will similarly advise the Deputy Minister.
ELTO’s public materials will comply with the government’s visual identity guidelines and legal requirements for accessibility.
ELTO will provide copies of their rules, practice directions, and public information materials to the Ministry upon request.
The Executive Chair will ensure that the following reports, statements and documents are submitted to the minister for review and approval:
1. ANNUAL PROGRAM REVIEW, RENEWAL AND TRANSFORMATION
As determined by the Ministry.
2. PERFORMANCE MEASURES PLANS
As determined by the Ministry.
3. ANNUAL REPORTS and PERFORMANCE MEASURES REPORTS
As determined by the Ministry.
4. FINANCIAL REPORTS as required by Ministry’s internal financial reporting requirements or the Tribunals’ governing legislation
As determined by the Ministry.
5. ANNUAL REPORTS for tabling in the Legislature.
As determined by the Ministry.
6. Such other reports as may be requested by the Lieutenant Governor in Council.
As determined by the Ministry.
7. Other reports as required for the Business Planning process i.e. Consultant, Trade Agreements, Ontarians with Disabilities Act, 2001, Accessibility for Ontarians with Disabilities Act, 2005, Risk Reports, etc.
As determined by the Ministry.
APPLICABLE TB/ MBC AND MINISTRY OF FINANCE DIRECTIVES
- The following TB/ MBC and MOF directives, guidelines and/or policies apply to these boards (but not limited to):
- The Ministry is responsible for informing ELTO of amendments or additions to directives, policies, guidelines, and provisions under applicable collective agreements that apply to the Tribunals.
SCHEDULE 4 - ADMINISTRATIVE SUPPORT
The Deputy Minister will ensure that the Ministry, authorized outside contractors, Justice Technology Services, or the Ontario Shared Services provides the following Operations support services to the ELTO; and will enter into a Services Agreement to cover the following areas, subject to the authority of TB, Cabinet and the Legislative Assembly of Ontario to determine the financial resources that will be made available to the ELTO:
Financial Administration: accounts payable, revenues, purchasing, accounts receivable, including usage of IFIS facilities for process these services where available, technical advice, purchasing, accounts receivable central mail and printing services, records and form advisory services.
Human Resources Services: pay and benefits administration; classification; advice and consultation regarding recruitment procedures and staff relations; job description writing; counselling regarding career planning and staff development; and advice and consultation regarding corporate initiatives such as Occupational Health and Safety and Equal Opportunity, and other standard human resources services. The Ministry will assist the Executive Lead in ensuring that corporate educational opportunities and career planning services are available to the ELTO staff, and that these are communicated effectively to staff.
Diversity and Inclusion Services: strategic advice, guidance and expertise on diversity and inclusion challenges; support in the development of a diversity and inclusion strategy and performance measures.
Information Technology and Telecommunications Services: services, advice and consultation including independent and external website.
Internal Audit: financial compliance, management, human resources and information systems audits; operational reviews and special investigations as required; consultations and training as required.
Accommodation Planning: facilities planning and relocation services, including lease renewals.
Freedom of Information and Protection of Privacy Program Services (as required).
French Language Services: advice in meeting obligations under the applicable legislation, translation and interpretation services
Communications Assistance: Communications assistance will be provided in accordance with the protocol established in Schedule 1 of this MOU.
Legal Services: (as required and subject to specific objectives).