Canada: Province Releases Public Consultation Document For OMB Review

On October 5, 2016, the Province released its Public Consultation Document setting out the key themes that will guide its review of the Ontario Municipal Board. The intent of the OMB Review is to consider the scope and effectiveness of the OMB within the land use planning system. The release of the Public Consultation Document responds to the Premier's direction to the Minister of Municipal Affairs in making the OMB Review a top priority, with the intent of introducing legislation to implement reform by spring 2017.1

The Province has identified five key themes to the OMB Review in the Public Consultation Document:

  1. OMB's jurisdiction and powers
  2. Citizen participation and local perspective
  3. Clear and predictable decision-making
  4. Modern procedures and faster decisions
  5. Alternative dispute resolution and fewer hearings

The purpose of this article is to highlight some of the proposed changes under each of these five themes. We will also examine how each of the themes may respond to certain comments received to date from public and stakeholder consultations.

In addition to the Public Consultation Document, the Province intends to host a series of town hall meetings across the Province. Comments on the OMB Review can be submitted to the Province for consideration until December 19, 2016.2

Theme 1: OMB's jurisdiction and powers

One of the most common concerns raised by the public in respect of the OMB relates to the scope of its jurisdiction and powers. The OMB's broad powers, while unusually extensive compared to other jurisdictions, are consistent with the wording of its enabling legislation.3 The concerns raised generally fall into two categories: the degree of deference to be granted to local-decision making and the scope of planning disputes to be brought before the OMB.

The Province has already limited the scope of appeals that the OMB may consider through changes to the Planning Act under Bill 73.4 However, the Public Consultation Document suggests that the Province will be considering additional measures to further limit the OMB's jurisdiction and powers:

  • Limiting appeals on matters which the Province has deemed are of public interest (e.g. prohibiting certain appeals to Provincial decisions on new official plans or proposed official plan amendments) and that support provincially funded transit infrastructure;
  • Limiting the type of appeals and nature of evidence that can be considered by the OMB (e.g. by imposing a two-year moratorium to appeals of new secondary plans, prohibiting appeals to interim control by-laws and directing the OMB to send significant new information back to municipal council for re-evaluation);
  • Giving more weight to municipal and provincial decisions by requiring the OMB to test such decisions on a standard of reasonableness, or by raising the "threshold test" that must be met before the OMB can overturn such decisions; and
  • Providing further direction as to when planning decisions should be based on provincial/municipal planning documents in effect at the time of the decision, as opposed to when the application was made (e.g. abolishing the Clergy principle).

The proposed changes appear to respond in part to comments raised by municipalities that have identified the dangers of allowing a single appellant to hold back a comprehensive municipally-initiated planning process. For example, the Final Report issued by the Regional Planning Commissioners of Ontario (RPCO) noted that "considerable weight" should be given to municipal decisions in determining any matters under appeal and that there should be circumstances where appeals to municipally-initiated official plans should not be permitted.5

Theme 2: Citizen participation and local perspective

OMB hearings are becoming more complex and costly for its participants. To encourage citizen engagement at the local level, the Province will be considering additional public resources to assist unrepresented parties in land use planning disputes.

Examples being canvassed by the Province include:

  • Expanding the Citizen Liaison Office (CLO) with additional staff to respond to public requests for information, or reconfiguring the CLO (i.e. moving it out of the Environmental and Land Tribunals Ontario) so that it may include in-house planning experts and lawyers; and
  • Exploring funding tools to help citizens retain planning experts and/or lawyers.

The cost of OMB proceedings, particularly the threat of cost orders, is obviously a concern that may cause a "chilling effect" to local participation. However, cost awards are rarely imposed by the OMB.6 In this author's view, it is the multi-layered and multi-faceted nature of planning law and the lack of readability of planning documents that act as the initial barrier against local participation. Complexity in process demands parties to retain planners, lawyers and other consultants to interpret Provincial policy. To this end, the Province's attempt at making Provincial plans more consistent and readable through the Co-ordinated Land Use Planning Review may arguably serve as a more effective solution in reducing such costs.

Theme 3: Clear and predictable decision-making

Another issue that the Province intends to address is the consistency and predictability of OMB decisions. The potential solutions identified require significantly greater public funding and resources than that currently allocated to the land use planning system. Such examples include:

  • Increasing the number of OMB adjudicators and expanding the training required for adjudicators; and
  • Requiring multi-member panels to conduct complex hearings, or possibly all hearings.

The need for more OMB adjudicators is echoed in earnest by the municipal law bar. This request is particularly timely given the number of seasoned adjudicators that will be forced to retire due to the ten-year appointment limitation this year.7 Increased compensation for highly qualified adjudicators is also required to attract top-tier private planning consultants, senior municipal planners and respected legal counsel to serve as future members of the OMB.8

Theme 4: Modern procedures and faster decisions

The Province has identified that it intends to shift the focus from adversarial OMB hearings towards adjudication that will be less complex, more accessible to the public and may result in faster decision-making.

To address this theme, the Province has identified the following potential measures:

  • Promoting "active adjudication" to encourage adjudicators to scope issues, question witnesses and in cases address inequalities between parties;
  • Allowing hearings (and not just motions) to be conducted in writing;9 and
  • Setting clear rules for both the hearing process and the decision-making itself (e.g. limiting the maximum days for hearing, setting clear rules for issues lists and time limits for when decisions must be issued).

Both the public and private sectors have called for more effective case management tools and faster decision making. The OMB has responded in part by requiring appellants to scope appeals and requiring non-appellants to shelter under a valid appeal. However, such concepts are not based on legislative requirements but case law. Accordingly, they may be subject to challenge and interpretation on a case-by-case basis. To respond to the request for faster decisions, the OMB must also be provided with (or encouraged to include in its Rules of Practice and Procedure) robust procedural tools to achieve timely results.

Theme 5: Alternative dispute resolution and fewer hearings

Finally, the Province intends on avoiding a formal appeal process where possible. Bill 73 already permits municipalities to initiate a mediation process for certain appeals in advance of forwarding the record to the OMB; likewise, mediation is championed by the Province as an alternative approach to resolve land use planning disputes.

To this end, the Province will be considering the following changes:

  • Requiring mandatory mediation prior to scheduling a hearing;
  • Allowing government mediators to be available at all times during an application process (e.g. even before an application arrives at municipal council); and
  • Setting timelines and targets for case management including mediation.

Mandatory mediation is a concept that has been requested by both the public and private sectors, although the recommended implementation measures may differ.10 From this author's perspective, the promotion of mediation and alternative dispute resolution must not undermine (or replace) the OMB's ability to adjudicate effectively and arrive at timely decisions. As noted by Associate Chair Wilson Lee, "the mediation and adjudicative wings of the Board are the two wings of a healthy eagle. If the adjudicative wing is broken, such a bird will not be able to soar above the surly bonds of earth."11

From a practical perspective, and recognizing that OMB hearings are becoming more litigious, the requirement for mandatory mediation brings this practice in line with the Rules of Civil Procedure as they apply to most civil actions in Toronto, Ottawa and Windsor. However, the mandatory mediation process is highly structured under the Rules and is implemented through the local mediation coordinator and the Mandatory Mediation Program.12 It is important to note that such measures, if implemented at the OMB level, are not without cost (both in time and money) to the land use planning system and its participants.

Note: This article was originally published in the Ontario Bar Association's Municipal Law Section Newsletter on October 12, 2016.

Footnotes

1. Premier Kathleen Wynne, "September 2016 Mandate letter: Municipal Affairs" issued to Minister Bill Mauro on September 23, 2016.

2. For details see the Province's webpage on the OMB Review.

3. See Sections 34 to 38 of the Ontario Municipal Board Act. Also refer to the numerous appeal rights for various planning instruments under the provisions of the Planning Act.

4. See p. 16 of the Public Consultation Document for a brief summary of matters that cannot be appealed to the OMB, including those matters that can no longer be appealed following Bill 73.

5. The RPCO have requested that the Province remove the right to appeal all municipal-initiated official plans or official plan amendments in defined circumstances — for example, a land owner should not be permitted to appeal policies as they apply to the full geographical area of the municipality (or a substantial area of the municipality for a secondary plan). See the Final Report issued by the Regional Planning Commissioners of Ontario, "Reforming the Ontario Municipal Board: Five Actions for Change" dated August 31, 2016 ("RPCO Final Report") at p. 14 and 20.

6. See Kimvar Enterprises Inc. v. Innisfil (Town), [2009] O.M.B.D. No. 33, 55 M.P.L.R. (4th) 305 at para 43.

7. Section 3.2.2 of the Province's Agencies & Appointments Directive (effective September 1, 2006) limits the term of appointment for an adjudicative tribunal to a maximum of ten years in total. Re-appointment to a further additional term beyond the maximum of ten years in total may only be made in "exceptional circumstances in the public interest."

8. As noted in the RPCO Final Report, "the current remuneration offered to Board members does not reflect the impact that Board decisions have on the planning system in the Province." See the RPCO Final Report at p. 25.

9. Rule 36 of the OMB Rules of Practice and Procedure (last amended September 3, 2013) permit parties to bring a motion before a hearing in writing and the OMB to direct certain motions to be held in writing.

10. See the RPCO Final Report at p. 27 and the Ontario Home Builders' Association, "Land Use Planning and Appeals System: Response to the Consultation Document" dated January 2014 at p. 24.

11. Associate Chair S. Wilson Lee, "Mediation and the OMB", The Six Minute Municipal Lawyer 2016 as presented on May 4, 2016.

12. See Rule 24.1 of the Rules of Civil Procedure.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions