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Page 6 May 7, 2018 • Law TiMes www.lawtimesnews.com OMB demise could have consequences BY IAN HARVEY T hey never got Al Capone for racketeering; they got him on income tax evasion. Similarly, municipalities have often used innovative applications of existing legislation to effect what they can't do with their standard tool set to control planning and zoning. The only body keeping its politi- cal meddling in check was the Ontario Municipal Board, but that's all changed with last month's enactment of Bill 139, Building Better Communities and Conserving Watersheds Act. It replaces the OMB with the Local Planning Appeal Tribunal Act. Some would say giving local authori- ties a bigger say in local decisions is a good thing, but a recent case of a mu- nicipality behaving badly suggests per- haps having the OMB as sheriff wasn't necessarily a bad thing. The issue is the battle over Glen Ab- bey, the iconic home to the Canadian Open golf tournament, in Oakville, Ont. Owner ClubLink says the site is no longer suitable for such an event be- cause it's too small, it has an outdated course design and there's not enough parking. Three years ago, ClubLink pro- posed to preserve the heri- tage structures that date back to the 1930s and build 3,300 residential units while giving the Town of Oakville 124 acres for parkland. Stung at losing the pres- tigious Open, the town de- layed processing the appli- cation and then denied it a demolition permit, prompt- ing ClubLink to threaten to "plough the course under." Oakville then declared it a heritage landscape under the Ontario Heritage Act, blocking any changes to the tees or greens and denying a demolition permit. Oakville stalled at every tee until the Ontario Municipal Board directed the town to quit dragging its clubs and play on last year. Then the town slapped on the heri- tage designation and the standoff is, not surprisingly, heading to court under two different files, to be heard in July and September, with ClubLink claim- ing the town acted ultra vires. It's no secret municipali- ties hate the OMB, which was seen to favour develop- ers and, thus, they have wel- comed Bill 139. The development indus- try, however, is upset. Devel- opers foresee more political interference, more rejected development proposals and more costs, all of which mean higher housing prices and more red tape. Stephany Mandin, a part- ner at Goldman Hine LLP, who prac- tises civil, constitutional and admin- istrative law, is more optimistic as the transition begins. "Certainly, it's in the interests of all parties to have sustainable development with a viable approvals process, which addresses local needs," she says, noting that, at some point, there's always going to be tension over change. "It's going to be very interesting to see what happens when the LPATs are [fully] in play." She's hopeful there will be a better balance with the new regime with more deference to municipal councils yet also demanding the municipalities be con- sistent, accountable and follow sound planning principles, she says. "The legal test will be does the pro- posal follow the official planning rules," she says. "And though it's premature, one hopes making the lens that legal thresh- old will better frame the question as to whether a municipality has overstepped itself." Still, the predictions are that we'll see more lawyers and fewer planners argu- ing more often in court because Bill 139 is a game changer. The new format substantially limits appeals and scraps de novo reviews. No longer will the concepts of good plan- ning be part of the argument; the only measure is whether the proposal com- plies with the official plan and, since municipalities control that aspect, it can be almost anything they say it is. And that's the scary part. LT uIan Harvey has been a journalist for more than 41 years, writing about a di- verse range of issues including legal and political affairs. His email address is ianharvey@rogers.com. COMMENT u EDITORIAL OBITER By Gabrielle Giroday ©2018 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. 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Karen Lorimer Managing Editor . . . . . . . . . . . . . . Jennifer Brown Editor . . . . . . . . . . . . . . . . . . . . . . Gabrielle Giroday Staff Writer . . . . . . . . . . . . . . . . . . . . .Alex Robinson Copy Editor . . . . . . . . . . . . . . . . . . Patricia Cancilla CaseLaw Editor . . . . . . . . . . . . . . . . . . Leah Craven Art Director . . . . . . . . . . . . . . . . . . . Phyllis Barone Production Co-ordinator . . . . . Jacqueline D'Souza Electronic Production Specialist . . . Derek Welford Modern life C ritics are always quick to point out that the law does not al- ways evolve at the lightning-quick pace of science and tech- nology. Take the term "fake news," which is now embedded in our culture. In this issue of Law Times, there is a variety of stories that look at legal responses to technology. One reports on a Toronto Small Claims Court ruling that led to $25,000 in damages being awarded to an Iranian LGBTQ activist based in Germany over defamatory posts online. Shadi Amin successfully brought the claim against Arsham Parsi over anonymous posts on multiple websites and letters sent to Am- nesty International and the BBC. A judge agreed, finding Parsi was responsible for the anonymous posts on a balance of probabilities. "An analysis of the damages occasioned by the extensive Internet defamation campaign must be evaluated in the context of the unique and somewhat insidious nature of Internet defamation and in light of the fact that the defamatory statements were instantly available to an unknown number of recipients," said the ruling. "The defamatory statements accuse her of rape, money laundering and other serious charges. The defamatory statements were broadcast on the Internet and there has been a complete absence of any retrac- tion or apology. The defendant appears to have been motivated by his anger at the plaintiff. For these reasons I believe the maximum amount is appropriate," it added. Another column by an Ottawa lawyer, Erin Lepine, looks at is- sues around the commercialization of surrogacy. Lepine has bravely voiced her opposition to a proposal to decriminal- ize payment for surrogacy, egg donation and sperm donation arrangements in Canada. Other features examine the provincial Long-Term Energy Plan and amendments proposed to British Columbia's Environmental Management Act, stemming from a dispute over the proposed $7.4-billion Trans Mountain pipeline extension. Modern life, in all its expressions, means com- plex decision-making. Wise lawyers are needed now more than ever to guide their clients. LT Queen's Park Ian Harvey

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