In late September 2014, Premier Kathleen Wynne provided each Minister with a mandate letter outlining the key priorities for their ministry. Premier Wynne’s letter to the Minister of Municipal Affairs and Housing, Minister McMeekin, set one of the priorities as:
Leading a review of the scope and effectiveness of the Ontario Municipal Board (OMB). Working with the Attorney General and key stakeholders, you will recommend possible reforms that would improve the OMB’s role within the broader land use planning system.
The inclusion of OMB reform in the mandate letters has reignited discussion about the role of the OMB and whether or not it helps or hinders planning and development in Ontario.
This discussion is not new. Prior to the provincial election earlier this year, there was consultation being done by the minority liberal government regarding land use planning and appeal and development charge systems. There were also two bills making their way through the legislature concerning reforms to the OMB. Bill 20 set out to essentially disallow City of Toronto planning decisions from being appealed to the OMB. The intention of the bill was to give the City of Toronto more authority over its own planning decisions. Bill 41 similarly sought to have certain municipal decisions refusing an official plan amendment request to be final and not subject to an appeal to the OMB.
The two main criticisms of the OMB are 1) the members of the OMB are appointed and not accountable to the electorate, and 2) the cost of the appeal to the OMB can be very expensive, especially for the average citizen.
Critics, however, usually overlook the OMB’s significant role in the province in terms of holding elected officials to account and protecting private property rights. The OMB presents the citizenry with an impartial forum to appeal planning decisions made by municipalities. The OMB is staffed with appointed members from across the province and is present to ensure that municipal planning decisions are made in accordance with provincial policy as well as local planning policy.
Given the importance of the OMB, any reforms that are proposed need to be well thought out. Unfortunately, if reforms to the OMB at the legislature reflect the proposals in Bill 20 and Bill 41, they will likely manufacture more concerns and questions about the planning and development appeal process.
In the event that the OMB is replaced with an appeal body that is staffed with elected members, issues about the soundness and motivation of the decision makers are inevitable. Bill 20 allowed for the creation of a local appeal body to act in place of the OMB. If the members of the appeal body are elected, this could lead to decisions of the appeal body being based on what will get the members re-elected rather than what makes the most planning sense. This could also jeopardize the appellant’s right to have a fair hearing.
Bill 41 noted that in order to avoid having a decision appealed to the OMB, the municipal council could simply pass a resolution stating that an official plan amendment would not be in the best interests of the municipality. This would give municipalities unfettered discretion that could also be used by politicians to placate a vocal group of their constituents instead of promoting sound planning practices.
In the case that a local appeal body does replace the OMB, it will undoubtedly cost money to appear in front of it. In July 2014, the City of Toronto exercised its right under the City of Toronto Act, 2006 and decided to adopt a Local Appeal Board (LAB) to hear appeals of minor variances and consent applications from the Committee of Adjustment starting in September 2015. A city staff report which examined, among other things, issues surrounding costs of the LAB, estimated that in order to recover direct operating costs, an application fee of $6,700 per application would be required. This is clearly exorbitant in comparison to the OMB application fee.
Oh, and did I mention that as per the City of Toronto Act, 2006, the people on the appeal body will be appointed and cannot include city employees or members of city council? Sound familiar? What initially started off as an attempt to replace the OMB with something less expensive and more accountable is starting to look a lot like the OMB that it was meant to replace, only more expensive.
The above should act as a warning to those who are seeking to reform the OMB. The proposed reforms to the OMB made in the previous sitting in the legislature (Bill 20 and Bill 41),and City of Toronto’s adoption of a LAB raise additional questions and concerns about the appeal process. This underlines the reality that while the OMB may not be perfect, it does play a valuable role in our province and as a result any attempts to reform the appeal process currently in place should be considered carefully and with great attention to detail.
At Devry Smith Frank LLP, our Planning and Development group has years of experience in front of the OMB. For more information about the OMB, or if you are considering appealing to the OMB, please feel free to contact one of our Planning and Development Lawyers directly.