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to development. Developers took issue with the formula the region used to arrive at that figure and challenged it. In January, the OMB sided with the developers' methodology and ordered more than 2,500 acres be made available. The region is now appealing to the Ontario Divisional Court. a LiGhtninG rod for CritiCisM When it comes to development in Ontario, the OMB, which dates back to 1906, is the lightning rod for public criticism. In fact, few Canadian adjudicative tribunals are as excoriated as Ontario's arbiter of planning. Developers bemoan the cost of going to the board and the inconsistency of municipalities in their decisions. Politicians accuse developers of being bullies and dislike seeing an "unelected" body overturn their planning choices. Members of the public generally oppose change to their neighborhoods and simply don't understand the process, often feeling shut out. The OMB brings together this volatile mix of passions, politics, and self-interest, which can quickly explode like a bad marriage when a high-profile development is proposed. For city solicitors, that handful of internal lawyers at developers and their external law firms who practise before the OMB, it presents a challenging environment: one that is always under the microscope and subject to political whim."It is challenging, but it is also very rewarding," says Mary Ellen Bench, city solicitor for the City of Mississauga. "You get to be part of all this building. It is quite amazing." CaLL for reforM But there is a growing call for OMB reform, something politicians in Ontario have been grappling with for decades. City councils in Toronto and Mississauga are so upset by the OMB process they have both passed motions seeking to be freed from its clutches. Queen's Park has heard the clarion and is weighing two private members bills. Conservative MPP Frank Klees proposed bill 41, which would prevent municipal rulings involving intensification from being appealed to the OMB (intensification is planning jargon for increasing the population density in cities). NDP member Rosario Marchese, who represents a downtown Toronto riding, wants to go further. His bill, which has passed second reading, would carve out Toronto from under OMB's oversight. Marchese says "the fundamental issue is that cities should have the power to settle land-use disputes. Cities should have the power to be able to do their own planning in a way that is best suited for them." He cites a paper presented at a Canadian Political Science Association conference in 2009 that found developers win 64 per cent of the time at the OMB. "It's the people with money who tend to win. It's just the way the system works. It's not a level playing field. It can never be a level playing field," he told the house during debate on his bill, which will now go to a committee for further study. In an interview, Marchese says Toronto has a $10-billion budget and a big planning department. Thousands of hours are being spent on planning appeal issues. "Those hours are wasted and the money could be used for better planning." He argues developers build the cost of going to the OMB into their project's budgets, which makes them quick to pull the appeal trigger when turned down by council. Marchese says there is an appetite at Queens Park for OMB reform, supported by comments during the debate involving his legislation. "Toronto isn't the only place that complains about the powers of the OMB. I guarantee because of my bill the debate is on and there'll be changes to the OMB. I have no doubt about it." While few people advocate scrapping the OMB, many concede there is a need to change aspects of the way the country's most populous province manages its development appeals. Finding the right balance is not an easy task. That's because the OMB has one of the most difficult jobs of any adjudicative tribunal in the country, experts say. A 2009 Ontario Bar Association report to the provincial standing committee on government agencies found the OMB derives powers and duties from more than 42 different pieces of legislation. A 1971 Royal commission report once quipped " . . . it has often been the practice of successive legislatures that when faced with the necessity of creating a jurisdiction to cope with a particular problem, to assign the problem to the municipal board." Then there are the conflicting policy issues. The OMB must maintain the delicate balance of provincial planning initiatives and policies, with those of local councils and the politics that entails. It's foreboding and an effort that often leaves participants dissatisfied on both sides of the debate, which suggests the board works as well as can be expected given the legislative and policy labyrinth. a neCessarY eViL "It's a necessary evil," says James McKellar, associate dean, external relations, at the Schulich School of Business. "It is the only protection against the irrationality of political decision-making," he says, especially in Toronto. "I do see it as a safeguard against the kind of wonton disregard for planning principles by council," says McKellar, an architect who runs the infrastructure and real property program at the school. He didn't always feel this way. When he arrived 20 years ago from the United States (and before that Alberta), he didn't understand the need for the OMB. "It's an w w w. c a n a d i a n law y er m a g . c o m / i n h o u s e june 2013 • 29

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