The OMB and the Road to Reform

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The Province of Ontario is in the process of a review of the Ontario Municipal Board (OMB) and its role in Ontario’s land use planning system. A public consultation process was launched in the fall of 2016 by the Ministry of Municipal Affairs, and while the time for the submission of comments ended on December 19, 2016, recommendations for changes to the OMB are anticipated with interest for the spring of 2017.

The OMB is an independent administrative board that hears appeals on a number of planning-related matters that affect properties and communities, such as minor variances, consents to sever, official plans, and zoning by-laws, as well as expropriations and development charges. The Planning Act sets out Ontario’s land use planning regime and also allows for the implementation of the Provincial Policy Statement (PPS) which is the Province’s land use polices on matters such as housing, parkland, economic development, transportation, natural heritage, cultural heritage, natural hazards, agriculture, mineral aggregates and water resources. Each municipality must “have regard” to the PPS in interpreting and implementing its own official plans, zoning by-laws, site plans, subdivision plans, severances, heritage and land use by-laws. The OMB has planning expertise in these matters, which makes it a good alternative to the court process as judicial decision-makers might not have the same specialized land use knowledge.

The majority of OMB appeals that are filed arise from an objection to a decision of a municipal council or approval authority or the failure or refusal of a municipal council to make a decision on a planning application. The OMB reviews the appeal and makes a decision based on planning evidence usually provided by expert witnesses under oath, and the input from the parties to the appeal. The OMB has the power to overturn decisions of municipal councils and planning authorities, which has often raised the argument that there should be stricter rules on how and when the OMB can vary the decisions of democratically elected officials in favour of developers or property owners, and whether there should be a degree of deference given to decisions made by councils of municipalities on matters affecting their communities.

The types of changes being considered in the provincial review include:

1) The scope of issues which can be dealt with by the OMB. This may involve limiting the number of matters that can be appealed to the OMB, giving municipalities more deference and independence in local land use decisions. This gives rise to concerns for land owners and developers who want to ensure that the decision-making process regarding their properties remains fair, objective and based on prevailing land use planning principles.

2) Allowing for more meaningful and less costly public participation. The cost of participating in an appeal and the retainer of experts can discourage participation by both land owners and the public. In addition, OMB procedures can be complex and generally require the retaining legal counsel to assist in navigating the appeal process. Consideration is being given to revising the Citizen Liaison Office at the OMB to include more support and information through in-house planning and legal assistance that would be available to the public to provide better direction in an appeal.

3) Giving more weight to local decisions. The Province is considering having the OMB move away from so-called “de novo” hearings, to a review of the decisions of municipalities based on a “reasonableness standard”.

4) Considering alternative ways to settle disputes, such as mediation or alternative dispute resolution.

5) Supporting clearer and more predictable decision-making. The Province is considering implementing more training for board members and multi-member panels in complex cases with different backgrounds for more expert and predictable decision-making. Updating of the OMB’s rules of practice and procedure to make it more accessible to the public are also being considered.

When hearing an appeal, the OMB generally has the same authority to consider the same matters as the original decision-making body, and although it may be referred to as a “trial-de-novo” or a new hearing, the OMB is required by planning legislation to “have regard” to the decision of a municipal council or approval authority in making its decision. The Province is considering whether a standard of reasonableness should be applied when a decision of the approval authority is reviewed by the OMB. Council for the City of Ottawa voted against this “standard of reasonableness” in its November 23, 2016 Council meeting regarding the City’s response to the provincial consultation on OMB reform. There was concern that the implementation of a reasonable standard, which is a legal concept and standard, could result in further uncertainty and adversarial proceedings in determining whether a decision of an approval authority was in fact “reasonable”. City Council resolved to request that the Province provide clear direction or binding interpretations with respect to the phase “shall have regard to” as set out in the Planning Act in respect of consideration of decisions of approval authorities, in order that the appropriate direction can be given to the OMB, so that it can be applied consistently across all OMB decisions and incorporated into the OMB’s rules of practice and procedure.

The City also endorsed the Province’s proposal for the expansion of the Province’s Community Liaison Office and increased funding supports for citizens to retain their own planning experts and/or lawyers as part of the implementation of these new reforms. In addition, some form of mandatory mediation in certain cases, pre-hearings and scoping of issues were supported as part of any proposed reform.

The OMB reform process presents an important opportunity to develop a more effective system to resolve planning and land use disputes. It will be necessary to ensure that any proposed changes reflect an appropriate balance between principles of deference that should be given to municipal policy goals for matters of local interest, and the need for property owners and interested parties to have an independent and balanced review based on recognized planning based policies. Administrative tribunals, such as the OMB, should be designed and funded to have the appropriate expertise with clear rules and procedures and resources that encourage meaningful participation in alternative dispute resolution processes, and hearings as a last resort.

Barbara Sinclair is a Partner with Brazeau Seller Law. She practices in the areas of Real Estate and Municipal Law. To contact Barbara, please go to www.brazeauseller.com or email Barbara at bsinclair@brazeauseller.com.

Disclaimer and Cautionary Note

The foregoing provides only an overview and does not constitute legal advice or establish a lawyer-client relationship with the authors or Brazeau Seller LLP. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained from a qualified lawyer.

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