Planning power and politics: as the Ontario Municipal Board faces reform, the Star investigates who’s calling the shots, how they got there, and developers’ influence over the province

thestar.com
By Jennifer Pagliaro
Feb. 17, 2017

“Quietly stylish.”

“Elegant and well-chiselled.”

“Highly evocative.”

That is how the longest-serving member of the all-powerful provincial appeals body that rules on planning and land use disputes described just a few of the buildings he’s approved in his nearly 30 years on the Ontario Municipal Board.

Before his retirement last year, Wilson Lee was one of more than 30 appointed members of the board that ultimately decides how communities in Toronto and across the province are built.

Based on a Star review of his available case files, Lee rarely sided with the city in approving developments, often overruling council decisions and the views of staff.

With evidence the board is frequently siding with developers, council and community critics have long viewed the board as undemocratic and unaccountable to the residents whose communities it plans. As the most powerful board of its kind in North America, they say it is in need of overhaul - some say abolishment - to return actual planning to elected councils and local municipal staff.

As the province looks to reform the OMB, with new legislation expected to be introduced this spring, the Star examined how the board is structured. Among the Star’s findings are: a provincial loophole that sees potential appointments dodge oversight, a lack of transparency over decision-making, and the significant financial influence of the development industry on the province which oversees that development.

The OMB deals with land issues both big and small - from disputes over a neighbour’s tree house to 80-storey condo towers.

Anecdotally, the OMB has long been accused of siding with developers over any other party involved in an appeal.

Though research of OMB decisions is limited, a comprehensive study of more than 300 Toronto decisions involving significant development between 2000 and 2006 by Aaron Moore, an assistant professor at the University of Winnipeg and a fellow at the University of Toronto’s Institute on Municipal Finance & Governance, found developers are clearly on the winning side more often than any other party, including the city.

Moore found many of the appeals that resulted from a city rejection of a proposal or in cases where the city had yet to make a decision ended in settlements. Yet when a decision was made - meaning an OMB member had to make a judgment call - developers were successful more than 50 per cent and up to 75 per cent of the time.

“Whether or not this apparent bias in OMB decision-making is reflective of a bias in the institutional processes or in the board’s decision-making, the board undoubtedly influences the politics of urban development in Toronto,” Moore wrote.

So, who’s making these decisions?

All members are appointed by the province through the public secretariat, which receives applications for some 3,700 public appointments. Those appointed to full-time positions earn a minimum of $93,000 annually. Nearly half of all members earned more than $100,000 in 2015, according to the province’s public salary disclosure list. Members are typically appointed for terms of two to five years with a maximum of 10 years in a position, said a spokesperson for the Minister of Municipal Affairs.

Qualifications, according to the secretariat’s website, are simply: “Experience, knowledge or training in the subject matter and legal issues dealt with by the tribunal; aptitude for impartial adjudication; aptitude for applying alternative adjudicative practices and procedures that may be set out in the tribunal’s rules.”

Of the current board members, just nine identify themselves as professional planners. Just over half are lawyers, of which just nine appear to have practiced planning, municipal or environmental law relevant to their OMB role. Another three were consultants in land economics or other related fields. Two are former mayors. One, as part of his bio, listed having spent “considerable time in Europe” learning about environmental conservation and land use management as qualifications.

In 1990, the standing committee on government agencies began vetting public appointments amid concerns of political meddling - that prime appointments were being handed to those loyal to the ruling party.

But today, there remains a major provincial loophole in that process.

Only appointments of one year or more fall under the committee’s jurisdiction. The committee does not get to screen re-appointments. That means a board member could be appointed for one year less a day and then be reappointed indefinitely without ever facing the committee, which does not have veto powers.

During a 2004 meeting of the committee, then Conservative MPP Joe Tascona stumbled upon the loophole when he learned the committee would not be able to review the appointment of the new chair of the OMB and another new appointment.

“I want to say, on behalf of the Opposition, that is not acceptable, and I want to relay that message to the premier, that that should not be the way this committee functions,” he told the committee, according to an official transcript of the meeting.

“If we’re going to have a democratic deficit in this Legislature, we just started with two major appointments that will not go through this committee because of using the standing rules. That is something that I would like to have changed to make sure that any appointment goes through this committee and not through the back door.”

But that loophole has never been closed.

 

The Star reviewed all of the available committee meeting transcripts from 1990 until now. It appears only eight out of 32 current members - or just 25 per cent - ever appeared before the committee. Almost all of the current members, some of whose tenures date back more than 15 years to 2000, were appointed under a Liberal government.

Those who were interviewed were questioned about their qualifications, views of the OMB’s role and political ties. When interviewed, several former members explained efforts by their local MPP to facilitate their appointment, according to transcripts reviewed by the Star.

Questions of political meddling have persisted for decades.

“You know, some people on the OMB, and I am not being specific, are just like the Senate, or just like fish after three days - they stink,” then Liberal MPP Bernard Grandmaître told the standing committee in 1991.

Mark Cripps, spokesperson for Minister of Municipal Affairs Bill Mauro, told the Star that legislation dictates members of the OMB are appointed through a “competitive merit-based selection process.”

Though research like Moore’s does not draw conclusions as to a reason for a bias toward developers, those concerns have troubled both council and communities.

While many decisions of the OMB are posted in online databases, not all are readily available. And while the OMB keeps records at its Bay St. office, unlike the court system, hearings are not recorded by default (a participant can pay to have their own transcription done, but those records are not available to the public). Often written decisions of the board can be quite detailed, totalling more than 20 pages. But many of the decisions are significantly shorter and often only provide a summary of evidence heard by members, making it difficult to assess what evidence was relied upon or ignored for a decision. Case files, including exhibits presented, are kept by the office and can be requested.

In trying to shed light on the process, the Star reviewed all the available decisions that Lee contributed to. Lee, who was appointed in 1988 and earned $163,261.92 in 2015 according to the public salary disclosure list, retired last year.

Because the OMB does not keep a comprehensive list of decisions, nor does the city, and a limited search function on the OMB website makes creating a comprehensive list impossible - something Moore also found in completing his research - the Star was limited in its analysis.

The legal database LexisNexis does store some OMB decisions, but it is impossible to know what percentage of total decisions are represented.

The Star reviewed all of the available decisions, 1,101 in total, involving Lee. Of those, nearly half were for cases outside of Toronto (some of the decisions relate to the same case). The Star then identified those cases involving significant development - excluding disputes over minor adjustments - where the city was opposed and a settlement was not reached, meaning Lee had to actually make the call.

Of those 33 cases identified, the developer was successful 75 per cent of the time.

A closer look at the decisions, which provide a limited window into the process, show Lee at times lambasted city staff while applauding the design of the buildings, including a development for two 34-storey slab towers with a seven-storey podium that, as this series earlier reported, set an unwelcome precedent in a Yonge-Eglinton neighbourhood.

“Her evidence is punctilious to a fault and like Churchill’s pudding, it lacks a theme,” he wrote of the city’s urban designer in that case.

The OMB refused to connect the Star with Lee for comment, but when reached by letter to his home, Lee responded in writing.

He noted many unreported decisions are equally important to those posted on LexisNexis and that those decisions examined by the Star don’t reflect a good portion of his work on Toronto files. He would not comment on specific cases outlined in the Star’s letter, saying as a rule, his decision should be considered the final comment. He did urge this reporter not to be “blinded by truism” and said many “nuances” are lost in examining who won or lost a particular appeal.

“Like all OMB members, my starting point is the legal framework that binds us all,” he wrote. He highlighted what he felt is “the inadequacy and difficulty of the adversary process underlying OMB hearings.”

He also wrote in support of a shift toward mediation, acknowledging the flaws of a court-like process.

“I have recognized the inadequacy and difficult of the adversary process underlying OMB hearings,” he wrote. “It has become apparent to many professionals and community associations that our mediation approach more often than not has altered such a toxic environ.”

Responding to criticism the OMB lacks regard for local decision-making, a spokesperson for the OMB wrote in an email that the board “conducts its work according to the legislated mandate from the Province of Ontario.”

As the province considers reforms to the OMB process, critics have noted that there has previously been a lack of meaningful change amid questions of the role the development industry plays in financing provincial political coffers.

York University associate professor Robert MacDermid researched donations to provincial political parties by industry between 2004 and 2011 and found the development industry was by far the largest contributor - donating a total $17.5 million in that period to the Ontario Liberal and Conservative parties.

“It’s very significant,” MacDermid said of the amount of development industry cash flowing to the province. “They have a real investment in the Planning Act and planning.”

The Star analyzed political contributions for the three major parties between 2014 and 2016 and compared donors to listed members of the Building Industry and Land Development Association (BILD), the largest group representing the development industry in the GTA, as well as the Ontario Home Builders’ Association itself.

That analysis found the GTA development industry alone contributed more than $1.7 million in that period. Those contributions do not include individuals linked to development companies who donated under their own names or numbered companies, of which there were more than 1,400 in the same period - meaning the total contributions is likely much higher.

A sample search of corporate documents for numbered companies suggests many of those unidentified companies could be also be development related. The Star found three of the top 10 numbered company contributors were linked to GTA development and donated more than $136,000 between 2014 and 2016.

Those contributions include likely attendees to controversial and pricey cash-for-access events with Premier Kathleen Wynne and top Liberal ministers, exposed by a Star investigation.

A Globe and Mail report identified cash-for-access events - including a $10,000 evening with Wynne - that appear to have been geared toward several top GTA development donors.

When asked about the influence of developer money, Municipal Affairs Minister Mauro simply noted to the Star in an interview: “Those rules will be changed.”

As of Jan. 1, corporations and unions are barred from donating to political parties.