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OMB changes mean restrictions on appeals

Focus on: Unknown if shifts will improve planning process
|Written By Shannon Kari

The proposed changes to the Ontario Municipal Board, including renaming the planning agency, are part of legislation with a predictably upbeat title. The Building Better Communities and Preserving Watersheds Act will give communities a “stronger voice” in land use planning, the provincial government stated when it was introduced at the end of last month.

Bill Mauro, the provincial Municipal Affairs minister, issued a statement saying the changes will “empower” municipalities to decide how their neighbourhoods should develop.

The changes, in response to criticism over the years from some municipalities and residents’ groups that hearings before the board were too time-consuming and costly, include renaming the agency as the Local Planning Appeal Tribunal. One of the more significant changes announced as well is that de novo hearings before the tribunal will be effectively eliminated.

The planned reforms may be good for the Liberal government with a provincial election scheduled to take place next spring, but many lawyers who practise in this area are not convinced the changes will result in an overall improvement in the municipal planning process.

“You hear a lot about the OMB in the press. I don’t think the allegations are fair,” says Michael Bowman, a partner at Osler Hoskin & Harcourt LLP in Toronto. He doesn’t agree that the tribunal has tended to tilt in favour of developers.

“I don’t believe they favour one side or the other,” says Bowman, who is a senior lawyer in the firm’s Municipal, Land Use Planning and Development group.

The view is echoed by Alan Cohen, a partner at Soloway Wright LLP in Ottawa.

“The OMB is a political football the legislature can kick around,” says Cohen, who also teaches municipal and planning law at the University of Ottawa. He wonders, though, whether the proposed changes will actually streamline the process.

“I think there will be less of an ability to have full and proper hearings. I wonder if the end result will be that we all end up in the courts,” says Cohen.

There has only been a first reading of the bill so far in the Ontario legislature and it may not be until later this year that it becomes law. Along with the changes to de novo hearings, there will also be some restrictions on what can be appealed, cases where only written evidence will be accepted, as well as the creation of the Local Planning Appeal Support Centre.

The existing Ontario Municipal Board consists of members appointed by the province. Tribunal members can substitute a municipal decision if it is not found to be the best planning decision. Under the proposed legislation, if the tribunal determines that a decision is inconsistent with or does not conform to provincial policies or local plans, it can send the decision back to the municipality. It would then have 90 days to amend its original planning decision to conform to the tribunal’s findings. Only if it is still found to be inadequate a second time could the tribunal substitute its own decision.

The provincial government’s reforms are “voter friendly,” says Sarah Hahn, an associate in the municipal law group at Barriston LLP in Barrie, Ont. Whether the changes will make the planning process fairer and less expensive for everyone involved remains to be seen, she says.

“Getting rid of de novo might be good. Then you are not starting from scratch arguing a case all over again,” says Hahn. However, the proposed legislation also takes away the right of appeal of certain municipal planning processes, which is a concern to all sides, she notes.

“A lot of the details will be in the regulations. It is still unclear,” says Hahn.

In some cases, this could impact the rights of residents’ associations opposed to a local planning decision, suggests Cohen.

“Ratepayer groups may be denied the right to appeal. They may be disenfranchised,” he says.

Other measures, such as requiring cases conferences, may not reduce expenses in more minor matters that are less then a full-day hearing at the tribunal, says Hahn.

“We already have a process where both sides can go ahead with mediation, if they can benefit,” she points out. The board in its current format “is very proactive” in terms of encouraging resolutions without a hearing, says Bowman.

He agrees that there are legitimate concerns about the expense involved in appeals of planning decisions and residents’ groups may feel under-resourced. He is concerned, though, about possible restrictions on evidence that can be presented at hearings.

“I think it comes down to a balance. People do not want long, expensive hearings. I get that. But you will still want to allow parties to put forward the best evidence they have. The board wants to make decisions based on what is good planning,” Bowman says.

The support centre that is being created as part of the reforms is modelled after a similar provincial agency for individuals who believe they may have a human rights claim. People will be able to seek guidance on the hearing and appeal process and may be able to receive some legal advice. Its effectiveness, though, is hard to predict, suggests Hahn.

“We don’t know right now what the support centre will be like in practice,” she says.

“On paper, the support centre is a good idea,” says Cohen.

“But who is going to pay to fund it?” he asks.

The existing planning appeal framework is likely to continue in place for several months until the bill goes through the legislative process and becomes law. Some regulations will also need to be enacted during a transition period for appeals that are already in the system, notes Bowman.

As well, even if all of the proposed changes are enacted, there will be a lot that remains in place from the current system, he suggests.

“You can eliminate the OMB and replace it with the Local Planning Appeal Tribunal. But that tribunal will still have a number of the same powers; there will still be hearings,” says Bowman.

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