NIMBYists and development antagonists across Ontario are rejoicing with the Province’s unveiling of its latest proposal to reform the Ontario Municipal Board (O.M.B.).
The O.M.B. Review Public Consultation Document (Consultation Document) begins by explaining how land use planning decisions are made. It is directed at the general public, some of whom may feel underrepresented by the current development approval process. While these groups generally seem to support the proposed changes, they may find that implementation comes at a cost. Legislation regarding the scope and effectiveness of the O.M.B. is expected by the spring of 2017.
Changes that raise concern
The Consultation Document outlines numerous potential changes to the way in which the O.M.B. operates, most notably curtailing the range of matters that can be appealed, and changing the manner in which such appeals are heard. For example, the Province is considering prohibiting private appeals of a decision approving a new official plan or an official plan amendment which implements a Provincial Plan. The Province is also considering limiting appeals to matters that are part of a municipal Council’s decision during an official plan review, new secondary plan amendments and municipal interim control by-laws. Further, the O.M.B. is to focus on the validity of a municipal decision under appeal, by using a reasonableness standard of review. The O.M.B. would be specifically prohibited from its current practice of making the best decision by conducting a hearing de novo and using the correctness standard.
Changes that may be redundant
Several of the suggestions made in the Consultation Document are already in play. For example, the Consultation Document suggests that if significant new information becomes available during the appeal process, the Board should be required to remit the matter back to municipal Council for a new preliminary decision. However, the O.M.B. is already required, pursuant to section 2.1 of the Planning Act, to have regard to any decision that is made under the Act by a municipal Council that relates to the same planning matter, and to consider the information that was available to the municipal Council in the first instance. The Planning Act also requires the O.M.B., on its own initiative or where a motion is brought, to consider whether new information or material provided at a hearing that was not provided to the municipality when Council made its decision could have materially affected Council’s decision. If so, the O.M.B. is to provide an opportunity for Council to reconsider its decision in light of the information, and make a written recommendation to the O.M.B. (see section 17(44.3) regarding official plans, section 34(24.3) regarding zoning by-laws and section 51(52.3) regarding plans of subdivision). Under the Planning Act, the O.M.B. is also required to give written notice before making a decision regarding a variance application that has been amended (section 45(18.1)).
Another such change proposed by the Consultation Document is that all appeals be required to proceed through mandatory mediation before scheduling a hearing. The reality is that many matters proceed by way of mediation, where the parties agree to mediate. Mandatory mediation where there is no interest or potential for settlement would only draw out the process, resulting in more cost and frustration for all parties involved.
The Consultation Document also proposes that all appeals be heard by multi-member panels. Again, multi-member panel hearings already occur, for example, in situations where a matter is more complicated, for longer hearings and where O.M.B. members are training newly-appointed members. Multi-member panel hearings are not necessary for all matters and would result in considerable waste of resources for a tribunal that is already understaffed and underfunded. For example, there is no value added in having two members preside over a settlement hearing, shorter hearings, less complicated matters or an appeal of a Committee of Adjustment decision where the appellant neighbours sometimes simply just don’t show up for the hearing, without any prior notice to the O.M.B. and the other parties.
Finally, the Consultation Document proposes that adjudicators should be permitted to engage in active adjudication whereby they question witnesses, scope issues and evidence and address inequities between parties. Many (if not most) O.M.B. members already do this and the O.M.B. Rules already provide that they are to be interpreted liberally to secure the most just and expeditious determination of each proceeding.
On the bright side, the Consultation Document suggests several changes that are bound to improve litigation experiences at the O.M.B. The Province recommends that O.M.B. members receive extensive training which will specifically address clear and concise decision writing skills, and proposes a requirement that decisions be delivered within a specified time frame (although, again, training of O.M.B. members is already something that the tribunal does).
In addition, the Consultation Document proposes redesigning the O.M.B. website to improve navigation and make decisions easier to locate. Other changes that may be helpful in streamlining hearings include the proposal that the number of days for an oral appeal be limited and that some appeals may only proceed in writing.
Finally, and perhaps most importantly, public engagement and education is addressed with a proposal to expand the Citizen Liaison Office.
The bottom line: popular suggestions may lead to unpopular consequences
The misguided proposal from some municipal politicians and uninformed members of the public to abolish the O.M.B. is thankfully not being considered. The idea that municipalities could effectively deal with planning matters without the adjudicative role played by the O.M.B. ignores the reality of our current system. Municipalities aren’t impartial decision-makers, but stakeholders themselves comprised of politicians who need to satisfy constituents with targeted interests. If a sufficient number of residents were to successfully oppose development in their neighbourhoods, developers would be unable to provide the jobs, homes and infrastructure that the Province desperately needs and demands. Similarly, if a single landowner attempted to make changes to his or her property, they would be unable to participate in a fair and unbiased review of the competing priorities in their neighbourhood. These disparities would simply not be accepted, and instead stakeholders would have no choice but to pursue remedies through the court system. Such a process would undoubtedly result in long, costly and protracted trials, and lead to less public engagement.
Nevertheless, many of the changes proposed in the Consultation Document seek to limit the scope of matters that can be adjudicated by the O.M.B. and the manner in which disputes can be resolved. Some of the proposed revisions may also increase the costs of adjudication and the approval process in general.
The fact of the matter is that the O.M.B. makes tough decisions that politicians often prefer to avoid. By empowering the O.M.B. in its continued role as an impartial body adjudicating planning appeals, the Province is able to maintain development standards while ensuring that an industry which provides thousands of jobs and significant municipal revenue doesn’t stagnate. Particularly given the Province’s current development focus as outlined in the Growth Plan, which calls for greater intensification and density increases in urban and other areas, there has never been a more important time to protect a cost-effective and neutral process. Those calling for abolition should be careful what they wish for – the Province’s response to such requests could do more harm than good.