OMB QUAGMIRE: TAKING STOCK

NRU
April 12, 2017
Peter Pantalone

As the planning and development industry awaits the conclusion of the provincial review of the
Ontario Municipal Board, a new book by a former vicechair offers an assessment of the board’s past, present and future.

In The Ontario Municipal Board: From Impact to Subsistence 1971-2016, the Hon. Peter Howden presents his analysis of the board and its crucial role in Ontario’s land use planning regime over the last 45 years. He describes what he views as its declining quality and the increase in public hostility towards it. Comparing the OMB as it was in the 1970s—with a much larger complement of board members—to today—with a significantly reduced number of members—Howden argues the board has been forced to exist on a subsistence diet at a time of unprecedented development pressure and planning policy complexity in Ontario.

With the establishment of the Environment and Land Tribunals in 2006, which clustered five tribunals including the OMB in an effort to achieve intersectional efficiencies, Howden writes that the board was inadvertently starved of desperately needed human resources as several of its members were crossappointed to serve on multiple tribunals at the same time. As a result, the amount of time board members have for deliberation and decision writing was reduced, as members spend most of their time attending hearings and prehearings. A consequence, Howden explains, is a preponderance of sparsely written decisions that often have very little explanation of how the member decided on the planning merits of the appeal.

Howden has no qualms citing examples of what he deems to be poor OMB decisions, particularly recent ones, that he says have not met the standard of quality expected of the board. While he attributes this to extremely overtaxed board members, he recognizes that these relatively few examples of weak decision-making have severely undermined public confidence in the board’s process, and it will require a significant effort to regain that trust.

Using statistics on past board appeals, and peppering his dialogue with examples of notable board hearings over the years, Howden dispels the perception that the board retains an inherently prodeveloper bias. Rather, it is the strength of the expert evidence, demonstrating whether a proposal is in conformity with established planning policy and principles, which is the core determinant of an appeal’s success at the board.

Incidental to this, of course, is the unavoidable reality that sophisticated proponents can retain top-notch consultants to give evidence at the board, whereas individual residents and community groups often lack the resources to hire expert witnesses and must rely on their ability to give lay evidence to the board, which carries far less weight.

Arguing that the OMB has become an increasingly precarious institution, Howden details the various available options, ranging from total abolition to minor tweaks. In the end, he strongly defends the continuation of the board, but with fundamental reforms and an infusion of new resources.

Howden calls for mandatory mediation for board appeals, building on the success and momentum of current board-led mediation efforts. This will require a significant increase in the number of mediation-trained members, an urgent requirement given the three current board members trained in mediation will soon be reaching the end of their non-renewable 10-year tenures.

Another crucial issue is board members’ salaries. Howden describes them as insufficient to attract mid-level professionals with the requisite knowledge and experience to the board when there are other more-lucrative career options elsewhere.

Howden first served as a member and later as vice chair of the OMB (1982-1992), before being appointed to the Superior Court of Ontario where he served until his retirement in 2014. Prior to joining the board, Howden practiced as a planning and municipal lawyer in Ontario.