OMB Review: Rethinking Powers

NRU
Oct. 19, 2016
Andrew Cohrs

Potential changes to the powers of the Ontario Municipal Board are receiving close scrutiny from municipal lawyers and local councillors in the Greater Toronto Area. Further limits on OMB appeals and to the scope of OMB reviews are seen as particularly contentious.

Aurora town councillor Tom Mrakas, who organized an Ontario-wide workshop for elected officials about OMB reform, told NRU that he is encouraged that the review includes an examination of the jurisdiction and operations of the OMB.

“I do believe there is an opportunity for meaningful and bold reforms... It’s about the province making legalisation that allows councils to uphold their official plans,” Mrakas told NRU. Noting the challenges faced by municipalities in making locally-appropriate land use decisions Mrakas asks: “What’s the point of developing an official plan if we can’t make a decision to uphold it without the fear of being appealed?”

But some lawyers have expressed concern that potential new limits on the authority of the OMB to override a municipal planning decision may not be in the public interest.

Several GTA lawyers told NRU that the OMB is an essential part of Ontario’s land use framework.

Ira Kagan of Kagan Shastri LLP says sometimes the OMB is unfairly criticized by those who do not agree with its decisions. Patrick Devine of Devine Park LLP and David Bronskill of Goodmans LLP also see what they describe as disconnect between public perceptions of the OMB and what they see as the valuable work of the appeal body.

“So long as there is a perceived issue with the board and a resulting disconnect [with the public], its important role in reviewing land use planning matters is called into question,” Bronskill told NRU. “We need to work collectively to address those perceived problems and [the] disconnect.”

One controversial topic covered by the review is a possible move away from so-called “de novo” OMB appeal hearings, effectively giving more weight to municipal and provincial decisions.

With “de novo” hearings, the OMB examines a land-use proposal as if prior municipal decisions had not been made. By moving away from “de novo” hearings, the OMB would focus on whether or not a municipal decision is within a range of defensible outcomes and not if it is the “best” decision. Kagan, Devine and Bronskill argue it is essential that OMB hearings continue to be heard “de novo.”

Kagan says “it is not realistic to think that you could leave [a municipal hearing] with the understanding that your full case has been put in, that all your reasons have been heard and that you feel as though that was all that was necessary. That is one of the reasons hearings de novo at the OMB are so important.”

Adds Bronskill: “You compare the scrutiny that the board gives to planning matters, where extensive evidence is heard both from expert and lay witnesses, including residents and its done without time limits whereas most statutory public meetings where these issues are canvassed, people have five minutes so I think board hearings allow greater scrutiny then the local planning process and I wouldn’t want to see that opportunity go away.”

But Mrakas insists there should be respect for local decision-making and, as a result, greater protection from appeals to the OMB.

“The biggest problem that most elected officials have identified is the fact that we spend countless resources developing official plans that are developed in coordination and combination with provincial policies, including the growth plan...and the province approves those plans and yet when we have an application before us asking for amendment to those plans and we don’t feel it betters the community... it can be appealed to the OMB and so that decision that we’ve made, one that’s good for our community, is overturned,” Mrakas states.

Bronskill counters, “Local interest is not always the public interest...it is an important factor but it’s not always the only interest.”

Nevertheless Kagan, Bronskill and Devine are encouraged by proposed changes that will improve transparency, access, funding of the OMB, including a suggested increase to the number of board members and mediation opportunities.

“Overall, board reforms that enable greater mediation whether at the board or before council decisions are made will have a greater impact on the legitimacy of the planning process than figuring out the scope of review that the board should be doing of municipal planning decisions,” Bronskill says.

The ministry of municipal affairs is seeking public feedback on the OMB review until December 19.