Law Times

Law Times • November 21, 2016 Page 11 www.lawtimesnews.com Decisions could be judged with new standard Review of OMB means mandate tweak BY MICHAEL MCKIERNAN For Law Times C ity councils need to improve their decision- making processes if they expect the Ontario Municipal Board to show them more deference, according to a Toronto planning lawyer. As part of an ongoing review of the OMB, the provincial gov- ernment has said it will consider a tweak to the board's mandate that would force it to review mu- nicipal authority decisions on a standard of reasonableness, a move that would significantly curtail its ability to overturn council rulings. Although OMB members must currently "have regard" to the municipal decision under review, board hearings effective- ly result in a "trial de novo" in which the OMB delivers its own verdict on the same facts already heard by local councils. But Jane Pepino, the founder of the municipal and land use planning group at Aird & Berlis LLP, says she has doubts about giving extra force to the deci- sions made by politicians at city halls across the province. "A standard of reasonable- ness would make sense only if councils adopted processes and protocols that provided the nec- essary level of justice in the fo- rum below," she says. "If you've ever been to a To- ronto community council meet- ing, you know that deputations are limited to five minutes, with no documents other than the staff report in front of council, and who knows if anyone has even read it. There are no rights of cross-examination or any- thing that resembles natural justice. When you appeal from that, I don't see how a determi- nation of reasonableness can be reached." Neil Smiley, a former urban planner turned municipal law- yer, says switching the focus of the OMB's decision-makers will mean bad news for the quality of planning decisions in Ontario. "Reasonableness is, with all respect, a low standard. A deci- sion could be a reasonable one, but not the best option from a planning perspective," says Smiley, a partner in the Toronto office of Fasken Martineau Du- Moulin LLP. "The OMB is the only lens through which we can be as- sured an unbiased view of what constitutes good planning is tested, without being hamstrung by political inf luence." Steven O'Melia, the leader of the municipal, planning and land development practice group at Miller Thomson LLP, is less skeptical about a reason- ableness standard, as long as it is f lexibly applied. "You want to be careful with it, because I don't think one size necessarily fits all," says O'Melia, who practises out of the firm's Waterloo, Ont. office. "You might look at varying levels of deference, depending on the decision being made. Given the process that goes into creat- ing a comprehensive official plan, that should get more deference than a minor variance out of the committee of adjustments." In any case, O'Melia says OMB members already afford council decisions a significant degree of deference. Some elect- ed representatives in the Greater Toronto Area may disagree with that sentiment though. In Toronto, the board has been a frequent target for Councillor Josh Matlow, who rails against its alleged friendliness toward developers. The city councils of Toronto and Mississauga have also each passed motions in the past requesting exemption from OMB review, while several mu- nicipalities have called for curbs on the board's power in the last year, including Aurora, Cam- bridge and Guelph, Ont. In September, the Divisional Court delivered a fresh batch of ammunition to critics who ac- cuse the board of overreach, set- ting aside an OMB decision on the official plan of Richmond Hill, Ont. The OMB had ap- proved the town's policy to re- quire the conveyance of parkland as a condition of development, but it imposed an overall cap on parkland at 25 per cent of the land proposed for development. In Richmond Hill (Town) v. Elginbay Corporation, On- tario Superior Court Justice Ian Nordheimer concluded that the OMB used an "unreasonable" interpretation of Planning Act provisions, "adopted without any visible foundation or analysis," to back up its conclusion that it had the power to set a limit. "It effectively abrogates the role that the Legislature clearly intended municipalities would perform and instead bestows that role onto itself," Nordheimer wrote on behalf of a three-judge panel in the Sept. 6 decision. No matter what the validity of the OMB's concerns is about the effect of a higher overall rate of parkland, "it does not oper- ate to alter the plain wording of the statute, nor does it serve to provide authority to the OMB to impose conditions where that authority cannot otherwise be found in the plain wording of the statute," Nordheimer continued. Paula Boutis, an environ- mental lawyer with Siskinds LLP in Toronto, says it's rare to see successful appeals from the OMB, because decisions tend to deal with questions of policy rather than law. "Here, it completely over- stepped its jurisdiction," she says. "This is a good reminder to the OMB about its mandate and the importance of recogniz- ing the role of municipalities in planning decisions." Boutis says previous altera- tions to the OMB's purview have had little impact, and she hopes the review will address some of the deeper concerns of critics, particularly from community groups, which she says feel mar- ginalized by the cost and com- plexity of the board's process. According to Boutis, a plan to consider tools that could pro- vide funding for citizen groups to obtain expert reports or legal representation, unveiled in the government's review document, could improve lay people's expe- rience at the board. "It isn't really striking the balance between what the com- munity wants and what the ex- perts want," Boutis says. "When cases wind up at the OMB, it almost always decides in a way that shuts out communities. It becomes a battle of the experts, who are almost always chosen by the developer." O'Melia says any reforms ultimately enacted at the OMB should aim at a "fine-tune" of the board's process, rather than a "major overhaul." "One of the things that mu- nicipal and private-sector par- ticipants are concerned about are the increasing delays in terms of getting a hearing," he says. "That's really more of a re- source issue." Smiley says investing in the board's roster of adjudicators, which currently stands at 20 full-time members and four part-time members, should be a priority for the review as their workload increases. "What I have not seen is a move to better compensate such members to not only ensure that they are appropriately compen- sated for the difficult jobs they have but also to attract to the board the most capable and expe- rienced individuals," he says. LT FOCUS Paula Boutis says it's rare to see successful appeals from the OMB, because decisions tend to deal with questions of policy rather than law. We are a law fi rm that combines experience, leadership and teamwork. We align best practices with fl exibility and pragmatism. We have an innate appreciation for each client's unique challenges. If this sounds like the right fi t for you, you've discovered Right-sized Thinking®. Find out how this approach can assist you. Not too big. Not too small. Right-sized Thinking® • 1-800-323-3781 • pallettvalo.com Your Authority For: Business Law • Commercial Litigation • Commercial Real Estate Construction • Insolvency & Corporate Restructuring Employment & Labour • Wills, Estates & Trusts Untitled-6 1 2016-11-14 3:35 PM One of the things that municipal and private- sector participants are concerned about are the increasing delays in terms of getting a hearing. Steven O'Melia

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