OMB jurisdiction questioned - Municipal discontent

NRU
Jan. 20, 2016
By Geordie Gordon

Not content to wait for a provincial review of the Ontario Municipal Board later this year, an Aurora councillor wants the town to request the provincial government to limit the jurisdiction of the OMB to questions of law and process. Aurora councillor Tom Mrakas told NRU that his motion is necessary because as the process is currently structured, planning decisions made by council can be overridden by the OMB.

“The perception, whether it’s real or imagined, by everyone is that regardless of what decision a municipal council makes, we have no real power to enforce our official plans ... the OMB could overturn [council’s] decision at any time,” he said. Mrakas said that the intent of the motion is to bring the way that planning decisions are appealed into line with other council decisions.

“There does need to be a way to appeal decisions at the end of the day ... The appeal should be brought forward if the decision is inconsistent or fails to conform, if there is an error in the process, or error in the law, just as any other decision that municipal council makes. The only one that doesn’t fall within that criteria for an appeal is any [planning] decision. My question is ‘Why is it different for planning decisions?’” he said.

Aird & Berlis partner John Mascarin said that the reason that planning decisions are considered in a different manner than other council decisions is due to the historical basis of the OMB, which makes decisions not only based on law, but also the public interest.

“Historically [planning decisions] have always been treated differently ... [The OMB] always seemed to have a policy-making role, which is very different from a lot of other tribunals that only look at law and process,” he told NRU.

Mascarin said that he was not concerned with the attempt by Mrakas to give more power to municipalities in the decision making process, but that there is a need to have a system of checks and balances.

“The political winds will move depending on how many people are in the room, and so if you have 300 irate residents or taxpayers, which way is the council going to side? You would hope they would decide with the decision that is proper and correct, and good planning, but maybe they would just side with the NIMBY crowd. And that’s always been my worry,” he said.

Mascarin stressed that he did not think that the OMB was a perfectly functioning body and some things could be done to improve the way it operates. However, he said Mrakas’s motion would make the scope of the OMB too narrow if it were to focus only on law and process.

Mrakas acknowledges that there is a need for an appeal body to have a system of checks and balances, but reiterated his concern that planning decisions made by council are too easily overruled.

“If all we are doing as municipalities is enforcing our official plan, which is approved by the province, and we follow the province’s guidelines and adhere to the Provincial Policy Statement ... why can someone turn around and appeal a decision of council upholding their official plan?” he asked.

While Mrakas was reluctant to mention any specific names, he said that he has been in discussion with other councillors and mayors in the GTA, and that there is agreement that there needs to be changes to the OMB.

Oakville Ward 4 councillor Allan Elgar is one supporter of Mrakas’s motion, and is trying to get a similar motion on Oakville council’s agenda. Elgar told NRU that it’s become a normal occurrence for developers to appeal to the OMB if they don’t get what they want from the municipality.

“The elected body in the area should have, I feel, the final say, unless there is a question of law or something is done incorrectly,” he said.

Elgar said the option of waiting for the province to initiate reform is too slow, but there could be some benefit in coming together around what he says is a common sentiment across GTA municipalities in advance of the provincial review of the OMB.

“If we can get every municipality behind it, I think people would start to listen,” he said.

Mrakas said the provincial OMB review, set to be conducted this year, is no guarantee of change. His hope is that municipalities across Ontario will endorse similar motions so the province will have “no choice but to listen” to the request. Mrakas expects to have further discussions with other GTA municipalities if his motion is successful next week at Aurora council.

Mrakas’s motion is on the agenda for the January 26 Aurora council meeting. Elgar is attempting to get a similar motion on the February 1 Oakville council agenda.