Canadian Lawyer InHouse

OMB FAST FACTS T he Ontario Municipal Board is one of the country's oldest adjudicative tribunals. It has a broad mandate covering everything from appeals involving minor variances to consents, zoning bylaws, fights over official plans, zoning refusals, subdivision plan approvals, development charges, and compensation fights in expropriation. Much of its activity centres on the greater Toronto area, with 46 per cent of new cases in 2011–12 generating from the GTA, 30 per cent of which are attributed to Toronto matters. Ottawa accounts for nine per cent and Niagara six per cent. Last year, it opened 1,527 new files, which amounted to 1,997 appeals. Variances led the way with 30 per cent of the appeals, followed by official plans (19 per cent), consents (16 per cent), zoning bylaws (14 per cent), and zoning refusals (6 per cent). The rest fell into a number of categories, such as land compensation and development charges. The board held 2,026 hearings, a nine per cent increase from 2011, and there were 90 mediations, up from 73 the year before. Most minor variances have a first hearing within 120 days of being filed, compared with 180 days for other applications and appeals. -JM anomaly in the approval process," he says, noting Ontario is the only province with such a tribunal. In Alberta, council delegates major decision-making to a planning commission of experts and from there, appeals go to a development appeal board, which has technical expertise. However, he says, cities like Toronto have been "hijacked by ideology, both right and left." The problem with the Ontario system, he says, is local politicians have too much say, which "leads to let's make a deal. The mediocrity in the planning process is appalling. I don't think anyone can look at what we built in the last 15 years in Toronto and say it's really good." Mark Karam, vice president and general counsel at Menkes Developments Ltd, agrees the ward system for electing councillors impacts development decisions. He notes in places like Toronto, councillors are elected by each constituency, rather than across the city. That means a politician might support a project in principle, but fear local voter wrath so votes against it, even though the project meets the criteria of a city's official plan. That leads to many of the appeals that hit the OMB. "Politicians fear the backlash of the community," he says. "As long as you have a system where councillors are 30 • ju n e 2013 INHOUSE not elected at large, I don't think you can extricate yourself from political decisions unless you have an impartial third party." Karam, who is responsible for land acquisition and approval, says one of the reasons why the OMB is under fire is there's been a lot of development in the last 10 years. Adding to the pressure have been major provincial legislative reforms, for example, the focus on intensifying development within cities. In 2002, Ontario passed legislation restricting development on the Oak Ridges Moraine, a 1,900-sqkm ecologically sensitive land mass from Brampton to past Cobourg: the densest, most populated part of the province. The government followed up with the Greenbelt Act, 2005, which included restrictions on more ecologically sensitive areas, and introduced the Places to Grow Act in 2005, which designates growth plan areas, such as the Golden Horseshoe. In 2006, the province introduced major amendments to the Planning Act, requiring municipalities to have their official plans conform with provincial growth plans, all of which is now impacting the OMB, particularly intensification and allowing re-developments within city borders. Toronto's O'Callaghan notes the Greater Toronto Area needs to accommodate one million more people over the coming decade. "The corollary of no development on the Oak Ridges Moraine means intensification of downtown Toronto." As developers look to acquire and redevelop existing properties, neighborhoods get encroached upon and voters get mad. Marchese believes developers are eager to bypass council and get to the OMB. Karam disagrees. "We don't like to go to the board. We want work it out with community and residents. Sometimes it's not possible." The OMB process is expensive — some estimates put it at $250,000 a week depending on the nature of the hearing. "If I am coming to the board without a solid chance of winning, then I am an idiot," Karam says bluntly. Chris Tzekas, a municipal lawyer with WeirFoulds LLP, agrees the process can use some reform, but people who call for scrapping the board or removing cities from its oversight don't understand the implications. ConfLiCts Sometimes the conflict with a planning decision is between different levels of government. Sometimes it's even within government departments and there is a need for a body to sort out those disputes. "The courts are extraordinarily uninterested in this stuff. They want it to be dealt with in the first instance by a specialized tribunal," says Tzekas. The costs of creating an appeal board at a city level that would protect the rules of natural justice are onerous, says Jane Pepino, a municipal lawyer at Aird & Berlis LLP. She estimates it would cost thousands of dollars to file an appeal under such a system, rather than $125 before the OMB. As well, experts like McKellar say the province needs a third party to keep the city politicians honest in their decisionmaking so planning isn't caught up simply in politics, but adheres to the official plans and rules in place, which is what the OMB tries to do. Karam notes developers want consistent rules and to have them applied fairly. Pepino blames structural issues for

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