OMB no more: proposed changes to tribunal

NRU
By Dominik Matusik
May 17, 2017

Yesterday, the provincial government released long-awaited reforms to the Ontario Municipal Board. While details are yet to be released, the announced changes will limit the types of cases that can be  heard by the board, simplify the appeals process and improve transparency. Also, the OMB is getting a new name - the Local Planning Appeal Tribunal.

The most significant change is to the scope of the new tribunal. Appeals of council decisions will only be allowed in cases where the decision does not conform to provincial or municipal policies.

Also, the reforms will allow municipalities to limit appeals of developments within 500 m of transit stations, as well as to enact a two-year waiting period before secondary plans can be appealed.

The reforms also seek to make the appeals process shorter, less costly and more transparent. This is to be accomplished by eliminating cross-examination during hearings and setting deadlines throughout the process.

Making the announcement with municipal affairs minister Bill Mauro, Attorney General Yasir Naqvi pledged to simplify proceedings and publish decisions in an accessible, user-friendly format.

Regional Planning Commissioners of Ontario chair and Halton Region chief planning official Ron Glenn told NRU that the reforms were a step in the right direction.

“I think it’s an improvement to the planning system as a whole in the province [and it will create] some certainty for municipalities,” Glenn says. “When you’re dealing with provincial plans and implementation of provincial plans, there aren’t any appeals. This is a game changer in advancing official plan approval and updates.”

Currently, the OMB functions on a de novo system meaning that all cases and evidence is heard anew without regard to any previous decisions. The proposed legislation will end this practice.

“The second part of it is really getting to the point of no de novo hearings and that is making municipalities accountable for their decisions...they would get to be returned to municipalities if there’s a different outcome as a result of a hearing.”

Glenn is also happy to see a shift away from a litigious tribunal and towards a process that emphasizes written evidence and mediation.

According to a municipal affairs spokesperson, the new tribunal would be required to hold a mandatory case management conference for major cases with the aim of quicker dispute resolution. This is intended to make the process more expeditious, cost-effective and fair.

The reforms come as less welcome news to the development industry.

“There are concerns that [the new tribunal] will ultimately serve to rubber stamp local political decisions when it comes to planning,” Ontario Home Builders’ Association CEO Joe Vaccaro told NRU.

“The province has a smart growth agenda. We have watched a wave of councillors be elected on anti-growth, antidevelopment sentiment. They have brought those concerns to council and they’ve  represented their constituencies accordingly. They’re elected to fight against development and that’s what they’re doing. The OMB has always served to be a place where evidence and data become the cornerstones for planning decisions.”

While the new tribunal is not intended to hear appeals inconsistent with provincial policy, Vacarro is concerned that the reforms will hinder provincial intensification and growth targets.

“Official plans are visionary documents. When you get down to site-specific applications, it’s about zoning and the right density for that site based on what it can support. So there are lots of official plans that are great visionary exercises and the province approves [them], but the zoning never follows.”

In announcing the reforms, Mauro acknowledged that the development industry may have preferred the status quo, but the provincial government decided that change was needed to bring some decision-making back to local councils. He emphasized that there still is a place to appeal land use decisions, but those appeals must now be based on conformity to provincial plans.

Aird & Berlis partner Jane Pepino questioned how meaningful the proposed changes are.

“I’m not sure that they have restricted the board that much, to be truthful,” Pepino told NRU.

“If what they do is, as they have said, shelter major planning decisions from appeal, all they’ve removed are ministerial zoning orders as an appeal because provincial approvals, including approvals of conformity exercises, those happen once every seven to 10 years...and I’m thinking that’s maybe 12 hearings every five years.”

Pepino is also concerned that these changes will put further strain on municipalities, particularly if tighter timelines are being enforced. However, she is supportive of the move towards mediation as well as the promise of professional legal and planning support for residents appearing before the tribunal. But she warned that these programs need to be adequately staffed and funded.

“I think this has been cleverly positioned to allow those who have said the OMB has too much power and should be abolished to claim a victory, while at the same time providing the ongoing required and necessary ability to have an appeal tribunal to test what’s in the public interest and the most appropriate implementation of provincial policy.”

Full details of the OMB reform package are yet to be published but will be tabled in the legislature in the coming weeks, according to Mauro.