Ontario Municipal Board

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The Ontario Municipal Board (OMB) is an independent administrative board, operated as an adjudicative tribunal,[1] in the province of Ontario, Canada. It hears applications and appeals on municipal and planning disputes, including appeals under the Planning Act (related to matters such as zoning, subdivision plans, official plans, consents and variances), land compensation matters under the Expropriations Act, specific heritage appeals under the Ontario Heritage Act, municipal financing proposals under the Municipal Act, and various other matters under other legislation. The tribunal is governed by the Ontario Municipal Board Act and reports to the Ministry of the Attorney General.[2]

One of the oldest tribunals in the province, the OMB was established in 1897 as the Ontario Railway and Municipal Board[3] to "oversee municipalities’ accounts and to supervise the then rapidly growing rail transportation system between and within municipalities".[3] It assumed its current name in 1932.[3]

Ontario Municipal Board Act[edit]

The OMB receives its authority from the Ontario Municipal Board Act, which also establishes the board's jurisdictional powers.[4] Through the legislation, the board receives its power to act as an adjudicative tribunal, "The Board [...] has all the powers of a court of record and shall have an official seal which shall be judicially noticed",[5] is granted exclusive jurisdiction over the domain in which it operates,[5] and "has authority to hear and determine all questions of law or of fact"[5] in matters within its jurisdiction.

The Act also grants to the OMB general municipal jurisdiction and railway and utilities jurisdiction.[5]

Board structure[edit]

The provincial Cabinet determines the number of members of the board, appoints members to it, and designates one member as executive chair, one as alternate executive chair, one as associate chair and one or more vice-chairs. These selections must be approved by the Lieutenant Governor of Ontario; once approval is given, the selections are deemed to have been made by the Lieutenant Governor-in-Council.[6] If the chair is absent or unable to act, a vice-chair is designated by the chair to perform those duties. If the office of chair is vacant, a vice-chair designated by the Attorney General exercises the jurisdiction and powers of the chair. The current Executive Chair is Lynda Catherine Tanaka.[7]

Board members are responsible for the adjudication of disputes between parties appearing before the Board pursuant to the governing Act. In carrying out this responsibility, members prepare for hearings, conduct hearings and make rulings and/or write decisions. Members conduct hearings as assigned by the Chair, in accordance with the Act and other applicable laws and with the policies, procedures and rules of the Board. Members make rulings and decisions on the basis of evidence and submissions and issue decisions in a timely manner. In preparing for the hearing, members review materials submitted by parties, conduct necessary research, identify opportunities for alternative ways of resolving the dispute and bring this to the attention of the Chair or the Chair's designate and make such preliminary rulings as may be necessary. Members also participate in Board member meetings, and when requested to do so by the Chair or the Chair's designate, in training and mentoring sessions and in committees established for the administration of the Board's adjudicative role. Appointees are expected to have the following abilities, skills and knowledge in order to carry out their responsibilities effectively: Demonstrated analytical, conceptual, problem-solving and writing skills; ability to listen and communicate clearly and effectively; computer literacy; good organization skills; well-developed dispute resolution skills; ability to objectively and fairly assess cases involving difficult issues regarding conflicting verbal/written evidence and the assessment of credibility; willingness to travel throughout the province for the purpose of conducting hearings; self-confidence; understanding of the justice system and the role of administrative tribunals in that system; expert knowledge of the Board's governing Act and related law or the ability to acquire such expert knowledge; understanding of the professional, institutional and community context within which the Board operates.

As of May, 2013 there were 23 members of the Board, including Executive Chair Linda Catherine Tanaka, Alternate Executive Chair Jerry Demarco and Associate Chair Shing Kan Wilson Lee.[8] Members may be reappointed over an extended period of time and are paid between $CDN 102,264.60 and 178,412.26 per annum.[9]

Hearings Organization[edit]

The Board attempts to hold full and fair hearings that are timely and efficient and to that end controls its own process through pre-hearings resulting in Procedural Orders that organize matters up to a hearing of the merits. Finalizing an Issue List is an important step. The Board expects[10] Parties who place an issue on the Issue List to call a case in support of that issue. The Board expects Parties to disclose to the Board, the likely number of witnesses to be called, the distribution between lay and expert witnesses, and the subject area the evidence of each will address. The Board uses this information to make a judgement on the length of hearing time required. It also uses the information to direct steps the Parties must take and deadlines they must meet to ensure there is both proper disclosure to Parties opposite of the case they must meet as well as providing appropriate opportunities for Parties to scope issues even further and identify areas where settlement may be possible.

While a trier of fact at the hearing of the merits makes the final determination of relevance, at the pre-hearing stage the Board must be satisfied that evidence to be called in support of each issue has at least a semblance of relevance.

Costs[edit]

Parties who appeal to the Board incur substantial cost for the lawyers and expert witnesses who attempt to persuade the Board that what they want represents good community planning and is in the overall public interest. Late in 2008 a successful appellant sought to have the Board require those who opposed it in a major hearing pay its costs of approximately $3.2 million. The Board found it has the legal authority to make such an order and in its decision summarized the rules it has established that apply when it is called upon to do so.[11] It felt its decision to deny the appellant’s request may be of interest to the public as it addresses the Board's practice dealing with motions or requests for costs and published a link to the decision on its web page.

Criticism[edit]

On October 7, 2008, City of Toronto councillors representing the former city of North York had voted to name a lane "OMB Folly" in the area where the OMB, against the City's wishes, approved development of a condominium/townhouse complex near a low-density residential area immediately west of North York Centre.[12][13] However, Council reversed this decision on August 26, 2010.

After a controversial 2009 decision approved a community of up to 1400 homes in Manotick, Ontario, Minister of Municipal Affairs Jim Watson was quoted in the local press as stating: "Has the OMB been perfect? No. Can it improve? Yes, I think it can and I am quite prepared to work with the attorney general to try and ensure that the OMB is more reflective of community values [...] I've had a couple of discussions with the attorney general going back a month and we both agree we are going to take a thorough look at the OMB and see how we can further improve it based on changes we made a couple of years ago. We want to see if they've done what we hoped they'd do to bring greater balance to OMB decision-making."[14]

On February 6, 2012 Toronto City Council asked the province to free the city from the Ontario Municipal Board’s jurisdiction. Council endorsed the proposal in a 34-5 vote. Spearheaded by Cllr. Josh Matlow, along with Cllr. Kristyn Wong-Tam. Matlow is quoted in the Toronto Star newspaper: “We’ve heard time and time again from our residents that there’s an inequitable playing field...Developers simply have a better chance at the OMB because they have the financial resources, the ability to get planners and lawyers, anything they need to be able to argue their case,” This proposal should open the door for discussion of the efficiency and justice of the unelected board that controls the majority of Ontario developments.[15]

References[edit]

  1. ^ Meyfarth O’Hara, Elke. "The Application of Natural Heritage Policies and Legislation by the Ontario Municipal Board January 2004-January 2008". University of Waterloo, School of Planning. Retrieved 22 April 2009. 
  2. ^ "Citizens' Guide 6 - Ontario Municipal Board". Citizens' Guides to Land-use Planning. Ontario Ministry of Municipal Affairs and Housing. Retrieved 22 April 2009. 
  3. ^ a b c "History of the OMB". Ontario Municipal Board. Retrieved 22 April 2009. 
  4. ^ "Legislation and Regulations". Ontario Municipal Board. Retrieved 22 April 2009. 
  5. ^ a b c d "Ontario Municipal Board Act". Canadian Legal Information Institute. Retrieved 22 April 2009. 
  6. ^ "FREQUENT QUESTIONS". The Office of the Lieutenant Governor of Ontario. Retrieved 22 April 2009.  "When the Ontario Premier and the provincial Cabinet make a decision and it has been approved by the Lieutenant Governor, it is said to have been made by the Lieutenant Governor-in-Council."
  7. ^ "OMB Information". Ontario Municipal Board. Retrieved Monday, March 11, 2013 4:08:37 PM. 
  8. ^ "Agency Details". Public Appointments Secretariat. Retrieved Wednesday, May 08, 2013 4:39:51 PM. 
  9. ^ "Public Sector Salary Disclosure for 2012: Crown Agencies". Ministry of Finance. Retrieved Wednesday, May 08, 2013 4:48:37 PM. 
  10. ^ OMB Decision PL080463, Jul 13 2009
  11. ^ OMB Decision PL050290 Jan 30 2009
  12. ^ Moloney, Paul (8 October 2008). "It's street revenge on developer". Toronto Star. Retrieved 22 April 2009. 
  13. ^ "Councillors Try To Name Street OMB Folly As Form Of Protest". CityNews.ca. 8 October 2008. Retrieved 22 April 2009. 
  14. ^ Adam, Mohammed (15 April 2009). "Watson calls for further changes at OMB". Ottawa Citizen. Canwest. Retrieved 2009-04-21. 
  15. ^ "Toronto asks to opt out of Ontario Municipal Board". Toronto Star. 7 February 2012. Retrieved 2012-07-06. 

External links[edit]