Ultra Vires


Better Know a Court: The Ontario Municipal Board

Justin Khorana-Medeiros (1L)

The Ontario Municipal Board (OMB) is an independent tribunal operating under provincial legislation. Its mandate covers the majority of appeals arising under the Planning Act, including appeals regarding official plans; zoning by-laws; subdivision plans; ward boundary disputes; development charges; consents; minor variances; and compensation claims under the Expropriations Act.

The OMB in Theory and Practice

The Board provides private actors with dispute resolution that is less formal, costly, and time-consuming than the courts. It bases its decisions on evidence adduced at hearings, the relevant law, provincial polices, and principles of good planning.

Before hearings, the OMB attempts to resolve issues through mediation. If this fails, it holds a public hearing at that is adversarial in nature, featuring examinations and cross-examinations, and an evidence-based outcome—much like civil trials.

Most decisions can be appealed to the Divisional Court within 15 days of delivery, solely on the basis of an error in law (not policy). Appellate courts rarely rule on OMB decisions, making them the de facto final say on the majority of provincial development matters.

Lawyers, mediators, planners, and individuals with experience in municipal and federal government currently comprise most of the board. Members are appointed by the province, which also designates one member as Chair and may designate one or more Vice-Chairs.

Cracks in the Architecture

For critics like Toronto city councillor Josh Matlow, the OMB is “an anti-democratic, unelected, unaccountable body that has the last say on…planning matters in…Ontario”— a sentiment echoed by countless municipal councillors, MPPs, and residents’ associations across the province over the past few decades. The Ontario NDP makes annual attempts to reform or abolish the OMB, and the City of Toronto officially asked to be removed from the OMB’s jurisdiction in 2012.

Other criticisms centre on issues of localism. The abolitionist movement decries unelected provincial bureaucrats overriding local consensus-driven plans in favour of commercial developers. Abolitionists cite with ire the principle that OMB only owes municipalities minimal deference,” a Divisional Court ruling routinely invoked to set aside locally-formulated plans. They would have municipalities establish their own appeals bodies.

Another problem is access to justice. Former Toronto-area MPP and provincial cabinet minister Rosario Marchese claims “The adversarial OMB process pits cash-strapped residents and overworked city planners against deep-pocketed developers.” Critics suggest the OMB creates perverse incentives: knowing they can outspend community groups and municipalities, developers will bypass negotiations with those groups and simply file an appeal once challenged on a proposed development (figuring they can get a more optimal outcome.) Before that point, developers have often already paid for planning and traffic studies, environmental reports, legal opinions, and so forth, while community groups scramble to fund a commensurate response.

Even non-abolitionists would like to see OMB power curtailed. Frequent requests include stripping the OMB of its power to override local zoning decisions; lengthening the time period respondents have to gather evidence and hire experts; and having planning experts appointed to community groups.

Unfairly Vilified?

Community groups are not always on side with municipalities or local councillors against developers. Councillors and municipal government officials are sometimes influenced by potential tax revenue from large-scale developments. Conversely, neighbourhood groups are sometimes motivated primarily by protecting their real estate values, leading to bias for the status quo. This can sit in conflict with a long term view that serves the needs of the municipality as a whole.

Vote-conscious councillors often attempt to block developments when even tiny resident associations in their wards start making noise, notwithstanding the appropriateness of the project or the benefits that might accrue to the neighbourhood or the municipality overall. So while OMB might be a judicial body, conflicts brought before it are often fraught with complex political issues, which inevitably produce winners and losers.

There are also empirical questions. While a study into1990s Board results revealed clear bias in favour of development, recent studies suggest developers do not win overwhelmingly. Scholarly analysis suggests that the OMB’s settlement and mediation function has been underemphasized and, statistically speaking, community groups and municipalities do as well as developers when they retain their own planning experts. Former Munk School visiting professor Dr. Aaron Moore argues that if the OMB has a bias, it overwhelmingly favours planning expertise. The Ontario Bar Association concludes that the Board is “the best means we have of balancing competing public interest while maintaining government efficiency and the rule of law.”

Recent High Profile Cases:

Antrim Truck Centre Ltd. v. Ontario (Transportation) [2013 SCR 594] demonstrated a less commonly-discussed prerogative of the OMB: its ability to compensate an aggrieved party rather than outright deny or grant a development application. In Antrim, it awarded damages of $393,000 to a small business whose profits were severely impacted by a provincial construction project. The Supreme Court upheld this, ruling that while everyone must put up with some “give and take” for the greater good, disproportionately-burdened individuals ought to be compensated. The SCC provided a “reasonableness” analysis for use in future OMB disputes of this nature to balance competing public and private interests.

One particularly controversial decision was Activa Holdings Inc. v. Waterloo (Regional Municipality) [2014, PL130026], wherein the OMB cited “minimal deference” to justify overruling the Waterloo Regional Growth Plan. The Waterloo Region’s official plan to curb urban sprawl in favour of downtown density arose from a decade of consultation with planners, communities, and developers. Per University of Waterloo planning professor Jeff Casello, the developers’ projection of housing demand was found to be more credible than the Region’s, and thus “the entire intention of the official plan was reversed by the OMB.” The ruling opened up almost ten times more land for development; some suggest it even contravenes the province’s own Places to Grow Act.

Recent Reforms

Premiere Kathleen Wynne promulgated a review of the Ontario Municipal Board in her mandate letter to the Honourable Ted McMeekin, Minister of Municipal Affairs and Housing. The letter emphasized “citizen input” during early stages of land-use planning as well as respect for local official plans and decision-making, but also emphasized “growth-related revenue.” The result was last year’s Smart Growth for Our Communities Act—limiting the power to appeal official plans and reducing the types of appeals that can be made to the OMB.

Where to Learn More

You can learn more about it the OMB by visiting its website, which has a considerable amount of information the Board’s mandate, practices, and decisions. You can also find reported decisions on CanLII, as well as on the Board’s website two business days after they are issued on the E-Decisions section of the site.

OMB hearings are open to the public. If you would like to attend, the best way to arrange it is to contact the Board by phone at (416) 212-6349 or email (ontario.municipal.board@ontario.ca) to explain your interest and request the times and locations of upcoming hearings.

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