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some of the public dissatisfaction. She notes the OMB, a quasi-judicial tribunal, is constantly criticized, unlike the judiciary. "Nobody is calling to do away with the Supreme Court of Canada," she notes. She recalls a hearing where a woman stood up and used the term "morally bankrupt" when speaking of the board's decision-making powers. "Nobody would say that of a judge. The board has lost the protection of prestige." So what needs to be done? Lawyers interviewed for this story suggest key changes would make a difference. OMB's role in local planning stems from councils in the GTA, O'Callaghan welcomes the debate because the alternative isn't attractive. There are Ontario cities that don't have people clamoring to convert their industrial land to retail, he notes. "I have to say in the City of Toronto, we're lucky in that everybody wants to be here. Developers want to build tall buildings. It's where everybody wants to live. It's a function of where the activity is." Trial de novo or appeal? Mississauga's Bench notes there is "no real clear definition of what the OMB is supposed to do in terms of its role." Does it hear cases de novo or is it merely an appellant body that limits its review of counsel decisions? Currently, the board hears matters that have already been mooted at council and relies on experts, similar to a judge at trial. A Divisional Court ruling in City of Ottawa v. Minto Communities Inc. dealing with Planning Act amendments found the OMB need only "scrutinize and carefully consider" a council's decision, as opposed to giving it a narrow, deferential treatment, the way a court reviews administrative body ruling. Another reform is eliminating appeals for minor variances. They take up more than 30 per cent of the board's appeals. "Two neighbours fighting over a deck coming too close to their side yard is apt to take a day," notes Tzekas. "I am not entirely convinced that a full judicial process for something like that is necessary." Pepino also thinks the board needs structural bolstering and more resources. She would like to see the appointment process modified to attract different candidates. "The board has lost its ability to demand and secure public confidence because its members are no longer appointed as judges are. They are no longer paid the way judges are." She says the three-year appointment term is too short. "Who the hell is going to give up his senior career for a three-year contract?" she asks. "This is not [an appointment] that has any sort of certainty and no sense of independence." While much of the fighting over the Adds Karam, "If you abolish the board, I think development in the province comes to a standstill. I don't think people appreciate how much is tied into the development and construction industry in this province in terms of the economic engine. To go to a process where you are leaving it in the hands of local politicians to make decisions at the end of the day is a nightmare scenario. I don't think anybody wins."IH A Tradition of Business Whether conducting business in Canada or across the globe, Aird & Berlis LLP understands the realities of your work. Our clients benefit from the firm's solid relationships with major institutions, government authorities and renowned national and international law firm affiliates. We combine the depth and strength of Canada's largest firms with the creativity and effectiveness of smaller firms. Count on us for legal counsel from a business perspective.® Eldon Bennett Managing Partner ebennett@airdberlis.com 416.865.7704 Brookfield Place, 181 Bay Street Suite 1800, Box 754 Toronto, ON M5J 2T9 T 416.863.1500 F 416.863.1515 www.airdberlis.com 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 ntitled-2 1 june 2013 • 31 8/25/11 12:01:27 PM

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