December 19, 2016…

December 19, 2016

Ken Petersen
Manager
Ministry of Municipal Affairs and Housing
Local Government and Planning Policy Division
Provincial Planning Policy Branch
777 Bay Street, Floor 13
Toronto, ON M5G 2E5

Re: 2016 Ontario Municipal Board Review, EBR file 012-7196

Dear Mr. Petersen,

Environmental Defence is pleased to make a policy submission regarding important changes needed to reform the Ontario Municipal Board. Fixing the OMB is needed to ensure the award winning Greenbelt and Growth Plan supporting smarter growth and a protected Greenbelt are correctly implemented and not overruled.

For many years Environmental Defence has called for substantial changes to the OMB to protect the environment and allow citizens to participate on a more level playing field. The changes the province is considering to provide intervenor funding is an important step to address the imbalance in power between citizens, municipalities and developers.

Protecting the environment is one of the goals of the Greenbelt, and a matter of provincial interest that’s why we support referring environmental matters to the Environmental Review Tribunal.

In 2015 the province passed important legislation under Bill 52 that protects expression of public interest from lawsuits but OMB cost awards were not covered by the legislation. OMB cost awards remain a threat to public participation and the penalties for participating are getting larger. Changes are needed to respect and welcome citizen input and support their participation in OMB hearings.

We urge the province to fix the OMB to support citizen participation, ensure the environment is given due process and uphold provincial plans.

Sincerely,

Tim Gray

Executive Director

Environmental Defence

1.0.Executive Summary

Environmental Defence is supportive of the changes the province is proposing to substantially reform the Ontario Municipal Board (“OMB”). The primary need for change rests with the extraordinary imbalance of resources between developers and environmentalists, cottagers, ratepayers, Aboriginal communities and anyone else seeking party status at the OMB. It is typical for developers to spend hundreds of thousands or even millions on a case, a business expense to them but a crushing burden to most Ontarians.

For 25 years, Environmental Defence has assisted citizens intervening in Ontario Municipal Board (“OMB”) hearings. Our experience during those years identified the need to address inaccessibility for citizens and the need to ensure environmental matters are given due process. It’s time for the province to make substantive changes that protect the environment, uphold provincial plans and allow citizens to participate on a level playing field.

Our proposed solutions are simple.

First, create an intervenor funding model similar to the former Intervenor Funding Project Act that was used so successfully to fund environmental assessment hearings in Ontario. Tens of billions of dollars that are collected each year in development fees in Ontario, sharing a fraction of 1% with directly affected citizens in principled, public interest cases is fair.

Second, it’s time to refer environmental matters to an expert environmental tribunal, and leave the planning matters to the OMB. The Environmental Review Tribunal (“ERT”) has rules and expertise tailor-made to hear cases involving the potential destruction of wetlands, woodlots, wildlife habitat, groundwater, endangered species, farmland, etc. A very minor change in where we send cases for a hearing could result in a very big win for residents and the environment.

Third, municipal Councils that vote democratically to protect greenspace should have their decisions respected, not over-turned on appeal to the OMB. In some cases, treating appeals of municipal decisions as good planning makes sense, and taxpayers shouldn’t have to foot the bill for developers having a second kick at the can by appealing to the OMB, or hearing de novo (i.e. starting fresh). On the other hand, it is our experience that the majority of municipal Councils in Ontario have not planned growth carefully and continue to push for more land to be paved. Appealing bad decisions should start de novo for citizens. Imposing a standard of “reasonableness” as the only test of municipal decisions will make citizen appeals and protecting the environment a virtually impossible task.

Fourth, the length and number of appeals must be reduced. Environmental Defence’s community partners have been involved in a number of far too lengthy and costly hearings, some lasting over a year.

Finally, entire Official Plans and provincial policies should not be appealable. The five or ten year public review period is the time for developers and citizens to have their say. It’s important to reserve the right to appeal proposals inconsistent with approved provincial policy or municipal plans as too often Councils don’t follow their own plans.

2.0.Issues

2.1.Refer Environmental planning matters to the Environmental Review Tribunal

Planning appeals relating to greenfield sites that involve environmental issues like groundwater, wetlands and environmental features are very complex. Consideration of new development applications that threaten to impact or destroy these resources require a different knowledge base than urban appeals e.g. density, massing, design, etc.

The conflict between the competing visions of development vs conservation was played out most dramatically in the Walker Aggregates Inc. Joint Board Hearing. Walker Aggregates Inc. proposed a 42-million tonne quarry on the Niagara Escarpment, near Duntroon, Ontario. Two OMB members and one ERT member were assigned to hear the case, which dragged on for over one year.

In their decision, the Board split 2-1, with the OMB members approving the development, and the ERT member wrote a 100-page long dissent that said:

With respect, my colleagues' decision incorrectly elevates the importance of aggregate extraction in the Escarpment Rural Area designation of the NEP Area from development that might be accommodated, where it is compatible with the natural environment of the Escarpment and land in its vicinity, to development that must be accommodated if it might be feasible, even at the cost of removing, or permanently altering, Escarpment natural features, functions, and systems. This is not in keeping with the NEP being an "environmentally focused" and "environmental conservation" plan. The majority decision in this matter sets a perilous course for increased development in the NEP Area that is not compatible with the natural environment of the Niagara Escarpment and land in its vicinity.

Of greatest alarm to citizens and environmentalists is the fact the lone ERT member on the Joint Board is also the Niagara Escarpment Hearing Officer on the file.

At Big Bay Point, the OMB heard compelling evidence from Dr. Peter Dillion and other scientists, an award winning field naturalist and a former MNR biologist that digging a 30-acre hole in the shoreline was too big, and that cutting down a significant part of one of the last remaining shoreline woodlots on Lake Simcoe was a mistake.

The list of decisions of the OMB contrary to environmental protection is too long to list. The problem of having a non-expert panel decide environmental planning matters is easily cured. Recommendation: All environmental issues involving the Greenbelt, greenfield (OPA and zoning bylaws), agricultural lands, wetlands, woodlands, groundwater should be referred to the Environmental Review Tribunal.

2.2Support Citizen Participation provide Intervenor Funding

Too often citizens are shut out of participating in an appeal due to the time and expense. The system is weighted in favour of those in the development industry, who have the resources, knowledge and experience (and access to a stable of planning, environmental and other professionals with specialized expertise) to skillfully argue their case before the Ontario Municipal Board (OMB).

In a 2009 report, Ontario’s Environmental Commissioner identifies the imbalance in the land use planning system.

Nowhere is the asymmetry of the system more evident than in the relative economic power of the two sides involved. When the stakes are in the many millions – sometimes billions – of dollars, the resources that developers are prepared to invest to overcome residents’ objections far surpass the capacity of most citizens groups, environmental organizations, and even conservation authorities and municipalities.” [Emphasis added]

If anything, the problem of OMB cost claims has gotten worse since the Report.

The cost of OMB hearings undermines municipal planning. Rather than pay the cost of participating in a hearing, municipalities and citizens often opt to settle with developers. This is problematic as often the settlement reached may be contrary to municipal plans developed over years of thoughtful research, studies, legal, planning expertise and public consultation.

The cost of hearings is increasing, making it even more difficult for citizens to participate. Developers in a recent three-week OMB hearing spent $1.5 million to oppose the farm family seeking a 30m buffer for their livestock operation in the Greenbelt (Vaughan). These are pre-tax dollars, written off as an expense. The farm family in this case spent after-tax dollars to defend their interests, with no prospect of profit at the end. Even spending 10% of the developers’ budgets is beyond the scope of most families in Ontario.

There is more than enough money in Ontario’s development economy to level the playing field. According to the Ontario Home Builders Association, in 2015, there were 68,091 home starts in Ontario. Estimates put development charges and other fees paid to government at one-quarter the home cost, or $125,000 as the Ontario average home price is over $500,000. In other words, approximately $8.5 billion dollars are going to the provincial and municipal governments to pay for new growth. Giving 1% of this over to citizens desperately in need of intervenor funding would produce a funding pool of tens of millions, 0.1% would produce millions of dollars in intervenor funding. In other words, there is enough money in the system to level the playing field.

And there are existing processes for funding intervenors that could be replicated by the Ontario Municipal Board, the former Intervenor Funding Project Act or the Ontario Energy Board Practice Direction on Cost Awards provide relevant examples for an intervenor funding program.

Hearings need to be more accessible to people, particularly for working people that can’t attend hearings during the day. The Supreme Court of Canada now allows cameras to record and broadcast proceedings as a general rule, the OMB needs to catch up. One of the primary benefits will be to stop the unfair advantage of requesting transcripts, which are prohibitively expensive for citizens. A typical reporting service rates are as follows:

$4.90/page + $1/page (if expedited)

5 hours of audio (typical hearing day) = approximately 250 pages

Total estimated cost = approx. $1,500/day

The Walker Aggregates Inc. Joint Board hearing covered 139 Hearing Days, so the total transcript cost would have been in the order of $208,500 ($1,500 X 139 days). Revising OMB Rule 91 to allow recording except in the most unusual of circumstances is long overdue.

Finally, section 69 of the Planning Act allows municipalities to establish “fees by-laws” that allows Council to charge developers for having municipal lawyers and experts show up at OMB hearings- the funds can only be collected if municipalities support the development. No wonder municipalities rarely show up to oppose development, but are frequent parties to the OMB supporting the developer.

Recommendation: Provide intervenor funding to support full citizen participation and remove section 69 of the Planning Act that enables developers to lawyers and experts appearing for municipalities in support of development.

2.3OMB Cost Claims

Awards of costs are getting larger, and even the threat of costs is becoming more worrisome. In North Dumfries, citizens of the Concerned Residents of North Dumfries (“CRAND”) were handed a $220,000 costs claim, with the OMB awarding $110,000. The decision took one year to render, far too long for citizens to wait.

That amount was reduced on appeal to $50,000 that still left people wondering, why this amount, why the round numbers? Shouldn’t the OMB and legal counsel charge specific amounts to cover only actual costs, not round numbers clearly meant as punitive. The OMB should manage hearings so that citizens unrepresented by legal counsel should not be subjected to days and days of hearings, or costs claims for poorly managed proceedings.

In the example cited above of the farm in Vaughan, developers sought $1.3 million in costs, but were awarded only $85,000 or 6% of the claim. Asking for such a large amount and recovering such a small amount has all the hallmarks of a Strategic Lawsuit Against Public Participation, or SLAPP suit meant to silence dissent and discourage future participation. The Vaughan cost award is under appeal as the developers did not produce real evidence what if any costs were actually incurred. Even the costs of defending such an outrageous claim is prohibitive (and cost almost as much as the hearing itself).

The Protection of Public Participation Act (“PPPA”) failed to meaningfully remove the threat of costs claims at the OMB. The PPPA only restricts most costs claims to written motions, hardly a bar to seeking such outrageous amounts. The Toronto Star and others have documented citizens that have gone on the record to say the mere threat of costs caused them to abandon their opposition at the OMB.

If an appellant does not wish to call expert witnesses, limit those hearings to one day, and limit costs to $1,000. All other hearings should have a strict limit of $5,000 in costs to be awarded, which places proper emphasis on narrowing issues and limiting evidence to hours not days and weeks.

Recommendation: Limit cost awards to $5,000 or $1,000 for one-day hearings. The OMB has the authority to scope and limit hearings that are without merit and developers are more than capable of taking action to dismiss unmeritorious appeals.

2.4.De Novo Hearings

Environmental Defence supports giving strong deference to municipal planning decisions that protect the environment and represent good planning. In our experience, the majority of municipal planning and development decisions in greenfield contexts approve new development, even in cases involving sensitive environmental features. Giving greater deference to bad planning decisions is not a solution.

Many of our members express concerns that moving away from de novo hearings may result in the statutory public meetings held by the municipality becoming a quasi-judicial review. This may require citizens to submit evidence and hire experts at the statutory public meeting and Council vote on the planning application, an expense that will have to be duplicated at the OMB hearing. In addition, over-turning a Council decision (even bad decisions) will require an appellant to show the Council decision was “unreasonable”, which is an extremely high threshold.

According to the Supreme Court of Canada, the standard of “reasonableness” is:

•The reasoning must exhibit “justification, transparency and intelligibility within the decision-making process”; and

•The substantive outcome and the reasons, considered together, must serve the purpose of showing whether the result falls within a range of possible outcomes.

See Canada (Attorney General) v. Igloo Viski Inc., 2016 SCC 38 at para. 18

Most bad municipal decisions fall within a range of possible outcome and are intelligible – this is a very low threshold. The questions posed in the Planning Act, and reiterated in the Provincial Policy Statement, is much clearer: is the development good planning and in the public interest. Eliminating de novo hearings and replacing them with de facto quasi-judicial review proceedings using the reasonableness standard will essentially eliminate public opposition to bad planning decisions.

Recommendation: Find a way to support good municipal decision-making without empowering bad planning by forcing citizens to challenge the “reasonableness” of Council decisions. Hearings should stay de novo but should be shorter and less complicated.

2.5.Qualifications of Board Members

It’s time to upgrade the qualification standard for new OMB members and review current OMB members qualifications and performance. Decisions often take months or even a year to produce, even in limited matters (e.g. Motions). All members should be required to have professional education or qualifications in land use planning policy and urban design. In addition, a series of recent troubling decisions by the OMB has illustrated the need for a formal complaints process to stop members from going after citizens’ groups for perceived slights or justifiable criticism.

Recommendation: It’s time to upgrade the qualifications for new OMB members and review current OMB members qualifications and performance. All members should be required to have professional education or qualifications in land use planning policy and urban design. There is a need for a formal complaints process to stop members from going after citizens’ groups for perceived slights or justifiable criticism.

2.6.Mediation

The province is considering requiring mediation for all OMB cases. We do not agree with mandatory mediation. Mediation and ADR is costly and not always helpful as developers have a limited interest in considering public interests such as the preservation of farmland, biodiversity or wetland habitat. Mediation may result in resolution of a dispute but it may also interfere with good decision making. Whether a Council decision conforms to policy requires a decision, not mediation.

It is rare a case goes to the OMB without the parties having considered settlement. Mediation is a favoured tactic of developers seeking to “bleed” poorly funded opponents, who often exhaust the entire hearing budget on costly and fruitless mediation. Further, members of the public have no leverage in a negotiation and may be excluded from participating in mediation and settlement discussions. We recommend that participants and parties be given the option of participating in a mediation process. Intervenor funding should be extended to ratepayer groups that are parties and participants in a mediation.

Recommendation: Mediation should not be mandatory, and funding should be made available to citizen’s groups for mediation.

2.7.New Evidence and Complete Applications

Our members support allowing new evidence to be sent back to Council for consideration but there should be a limitation on the number of times an application can be revised. While the “complete application” requirement sounds good on paper, it is rarely enforced properly. For example in Oro-Medonte, Council allowed a developer to conduct Stage II archaeological investigations weeks after the OMB hearing had started.

We want to ensure that if new evidence is sent back to Council, a new planning report will be required including a pre-consultation, notification, new hearing and that the public planning process is followed for any revisions. Our preference is to extend the length of time allowed to prepare the complete planning report from 180 days to 365 days and require the municipality to follow a strict process and adhere to the requirements of a complete application. The developer should not be allowed to keep changing a planning application without having to it back Council with a full public discussion of the merits. Having a completed application that has been given a thorough review by planning staff and reviewed by Council will allow the development process to proceed more quickly than having a rushed report that isn’t completed and referred to the OMB. OMB Hearings should only occur after all evidence has been submitted for consideration.

Recommendation: Increase time limits for municipal planning reports to one year from 180 and 120 days, to reduce the number of non-decisions of Council and to ensure applications are complete. Any new technical studies or changes to planning applications should be sent back to Council, and hearings adjourned for a minimum of 120 days.

2.8.Ensure Aboriginal Communities have been Notified and Consulted

Ontario’s Planning Act notification regulations are inconsistent with legal requirements for aboriginal consultation. For example, O. Reg. 543/06 (Official Plans and Plan Amendments) gives notice of planning decisions to municipalities, school boards, Hydro, natural gas utilities, etc. etc., but only give notice to First Nations if the project is within 1 km of a Reserve – even if the development affects First Nations’ rights. Even profound changes to Official Plans are occurring without explicit recognition of whether Aboriginal communities were consulted. OMB members need to be trained to better understand what constitutes “consultation” to identify cases where Aboriginal communities were not included in the planning process but should have been given a seat at the table.

Recommendation: Change Ontario’s Planning Act and regulations to explicitly require full rights of notice and consultation for Aboriginal communities as a mandatory part of OMB appeals.

3.0.Summary of Recommendations

1)All environmental issues involving the Greenbelt, greenfield, agricultural lands, wetlands, woodlands, wildlife habitat, groundwater should be heard by the Environmental Review Tribunal not the OMB.

2)Provide intervenor funding to support full citizen participation.

3)Reform the OMB to reduce the imbalance favouring developers. Remove section 69 of the Planning Act, which allows developer to pay for municipal hearing costs if the municipality supports the developer.

4)Restrict appeals of municipal Official Plans and provincial plans. There should be a review mechanism and a restrictive appeal test for certain orders and decisions. As not every decision provides good protection of the public interest.

5)Limit cost awards to $5,000, $1,000 for one-day hearings. The OMB has the authority to scope and limit hearings that are without merit and developers are more than capable of taking action to dismiss unmeritorious appeals.

6)Increase time limits for municipal planning reports to one year from 180 and 120 days, to reduce the number of non-decisions of Council and ensure applications are complete. Having a completed application that has been given a thorough review by planning staff and reviewed by Council will allow the development process to proceed more quickly than having a rushed report that isn’t completed and referred to the OMB. OMB Hearings should only occur after all evidence has been submitted for consideration. Any new technical studies or changes to planning applications should be sent back to Council, and hearings adjourned for a minimum of 120 days.

7)Improve accountability and transparency by holding open public OMB hearings. Require all OMB hearings to be video recorded and video’s accessible on the OMB website. Hold hearings in venues with access to high speed internet.

8)Support shorter hearings by encouraging written submissions for minor variances and severance appeals. Require written submissions for cost awards and motions but don’t allow natural justice to be impeded.

9)Review the qualifications of Board members and develop a public complaints process. Require diversity of planning expertise on the Board. Members must have education and experience in land use planning policy, and/or urban design. Move away from reappointing members with only development approvals experience and legal knowledge.

10)Change Ontario’s Planning Act and regulations to explicitly require full rights of notice and consultation to Aboriginal communities as a mandatory part of OMB appeals.

11)Mediation should not be mandatory, and funding should be made available to citizen’s groups for mediation.

12)Find a way to support good municipal decision-making without empowering bad planning by forcing citizens to challenge the “reasonableness” of Council decisions.

Endnotes

1. Re: Walker Aggregates Inc., [2012] O.E.R.T.D. No. 29

2. Environmental Commissioner of Ontario, Building Resilience, ECO Annual Report, 2008-09, (Toronto: 2009) at 23-25.

3. “John Crispo, a Clearview Township Councillor in Simcoe County, insists the threat of costs played a role in the ratepayers’ group “caving” into a plan to double the size of Creemore, a rural community of 500 homes.” http://environmentaldefence.ca/2008/02/10/developers-cost-claims-raise-fears-of-legal-chill/

4. Campione v. Vaughan (City), 2016 CarswellOnt 19377

5. http://ohba.ca/system/documents/documents/387/original/December_Final_Starts_2015.pdf?1461266358 6. https://www.thestar.com/life/homes/2015/03/13/development-fees-charges-add-100000-to-price-of-a-new -gta-home.html

7. “Courtroom proceedings will be webcast live unless a case is deemed to be unsuitable for webcasting due to a publication ban or privacy concerns.” http://www.scc-csc.ca/case-dossier/info/hear-aud-eng.aspx

8. OMB Rules of Practice and Procedure, Rule 91 states: Media Coverage - Photographic, Audio or Video Recording

No person shall take or attempt to take a photograph, motion picture, video recording, or other recording capable of producing visual or aural representations by electronic means, or otherwise, at any proceedings of the Board otherwise open to the public, unless the presiding Board Member authorizes the recording and the following conditions have to be satisfied by the person making the request:

(a) authorization for the request was submitted to the presiding Board Member or the Chair;

(b) the Board Member determines that the proceedings will not be disrupted or delayed if approval is given;

(c) the Board Member determines that the approval will not result in any prejudice to any party to the proceedings;

(d) the equipment must be of a type approved by the Board and be placed in locations approved by the presiding Board Member; and

(e) photographing and/or visual recording may take place only within the times designated by the Board Member prior to the commencement of the Board’s proceedings and no approval of the Board shall apply to any time during which the proceedings actually occur or in which the proceedings are in session.

9. March 9, 2016 Decision of Bruce Krushelnicki (Chair, OMB), regarding section 43 Request for Review of costs awarded in Brown v. North Dumfries (Township), 88 O.M.B.R. 25

10. https://www.thestar.com/opinion/2008/10/14/troubling_case_at_omb.html

11. Burl’s Creek Events Grounds Inc. v. Oro-Medonte (Township), 2016 CarswellOnt 17587

[Original Comment ID: 207239]