The Ontario Municipal Board – Is It Biased?

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by Theresa Peluso

As the municipality of Mississippi Mills approaches the final stretch in updating our Community Official Plan (COP), most residents feel relief at finally seeing the inclusion of the safeguards needed to protect our Natural Heritage System. As you may already know, a natural heritage system is made up of natural heritage features and areas, linked by natural corridors which are necessary to maintain biological and geological diversity, natural functions, and viable populations of indigenous species and ecosystems. These natural areas also perform a vital role in recharging our aquifers, filtering rainfall and cleaning our air. They provide wildlife habitat, support environmental diversity, and also benefit us humans, both physically and mentally. Our next-door-neighbour, Ottawa already has a natural heritage system enshrined in its COP, and it is high time Mississippi Mills followed suit.

But the threat is sometimes bandied about that, if developers have other plans that contradict the policies outlined in the COP, they may appeal to the Ontario Municipal Board (OMB) to get their way. As a result, there is a general impression that, no matter how much time and effort residents have devoted to ensuring that their community grows in a sustainable, healthy, prosperous way, an outside individual’s power and money will prevail in the end.

So, what exactly is the Ontario Municipal Board, and how effective is this institution in ensuring the right of a municipality to determine its own destiny?

The Ontario Ministry of Municipal Affairs and Housing defines the OMB (source: http://www.mah.gov.on.ca/Page1755.aspx) as:

… an independent administrative tribunal responsible for hearing appeals and deciding on a variety of contentious municipal matters….Board members are appointed by the Ontario Cabinet and include lawyers, accountants, architects, planners and public administrators. The Ontario Municipal Board operates under the Ontario Municipal Board Act, as well as its own rules of practice and procedure. It reports administratively to the Ministry of the Attorney General….Its main role in community planning is to hold public hearings on:

  • land use planning applications, such as subdivisions, land severances and minor variances, (and)
  • planning documents and applications, such as official plans and zoning by-laws.

The reason for this tribunal is further explained:

When people are unable to resolve their differences on community planning issues, or have disputes with their municipal council that can’t be settled, the Ontario Municipal Board provides that needed public forum. It can assemble the facts and make decisions in light of:

  • environmental, social and economic considerations
  • provincial interests
  • rights of the individual citizens
  • the best interests of the community as a whole.

A separate publication by the Ontario Municipal Board describes the OMB’s history (https://www.omb.gov.on.ca/english/AbouttheOMB/AbouttheOMB.html):

The OMB is one of the province’s longest-standing adjudicative tribunals. In 1906, the OMB assumed its initial responsibilities…. Originally named the Ontario Railway and Municipal Board, it was created to oversee municipalities’ accounts and to supervise the rapidly growing rail transportation system between and within municipalities. It was renamed the Ontario Municipal Board in 1932.…In 2003, the Province embarked upon a wide range of planning reforms that have had a significant impact on the OMB. These reforms have re-defined the role of the Province and the OMB in land use planning and have increased the role of local municipal decision-making…. The OMB’s mandate has evolved to that of an appeal board that is required to make decisions that conform to provincial plans and are consistent with provincial policy statements. (end of quote)

The provincial policy statement (PPS), referenced in the above quote, defines the government’s policies on land-use planning, and provides policy direction on land-use planning to promote strong communities, a strong economy, and a clean and healthy environment. It is reviewed every five years, and was last updated in 2014.

Theoretically, then, the OMB sounds like the perfect instrument to ensure that the environmental concerns of municipal residents are respected, regardless of conflicting private interests. What is the OMB’s record then, with respect to its judgments on natural heritage policies?

In 2008, Dr. Meyfarth O’Hara published a report for the Environmental Commissioner of Ontario titled “The Application of Natural Heritage Policies and Legislation by the Ontario Municipal Board, January 2004-January 2008”. The PDF can be found at Meyfarth O’Hara, Elke (2008). “The Application of Natural Heritage Policies and Legislation by the Ontario Municipal Board January 2004-January 2008” (PDF). Environmental Commissioner of Ontario.

In this report, Dr. O’Hara reviews prior studies that reviewed the application of the Natural Heritage Section of the PPS by the OMB in previous years. She cites an analysis done by Ontario Nature, which reviewed 71 cases with significant natural heritage issues that were decided by the OMB between the years 1996 and 2003. The Ontario Nature report concluded that in those 71 cases, defenders of natural heritage had a 30 percent success rate, while developers had a 70 percent success rate in winning the appeal. The Ontario Nature report outlined several factors that affected the success rate; namely, “weakness of OMB support and guidance for potential appellants; weakness in the cases presented by natural heritage defenders; imbalance in resources between defenders of natural heritage and development interests; lack of clarity in the PPS with respect to natural heritage; the lack of natural heritage protection in some Community Official Plans; variation in understanding and attitude toward natural heritage among OMB hearing officers; lack of proper municipal review of cases before they proceeded to the OMB.”

Dr. Meyfarth’s report then addresses the question of how the natural heritage provisions of the Provincial Policy Statement (PPS) 2005 were applied and interpreted by the OMB. She explains that the wording of the 2005 PPS was strengthened with the phrase: “shall be consistent” replacing “have regard to” (in the 1997 PPS). Dr. Meyfarth’s report then assesses the impact of the changed wording in the PPS 2005 with regard to OMB cases involving natural heritage policies and decisions that took place between 2004 and 2008.

Although the number of cases was too small to be statistically significant, Dr. Meyfarth noted that the percentage of pro-natural heritage appeals with successful outcomes increased to 50 per cent, as opposed to 30 per cent in the Ontario Nature study, but the percentage of appeals being launched by natural heritage defenders decreased by approximately one-third.

Fifteen of the OMB cases that occurred between 2004 and 2008 involved significant discussion of the PPS 2005, and in twelve of these cases the natural heritage policies were judged to have been successfully interpreted and applied. In general, Board Members gave appropriate weight to natural heritage concerns and attempted to balance natural heritage with other provincial concerns in a manner consistent with the PPS.

Dr. Meyfarth concluded that, for the most part, the natural heritage policies were applied successfully, although the number of cases involving natural heritage was insufficient to draw conclusions as to the effect of the new policies on Ontario’s planning system.

How does the 2014 PPS, which came into effect almost two years ago, compare with its predecessors?

According to a report from Environmental Commission of Ontario (http://eco.on.ca/) titled “Provincial Disinterest in Tackling Environmental Issues: The Provincial Policy Statement, 2014”, the assessment is that this updated document reflects greater recognition of important environmental issues, specifically: “The inclusion of new supportive policies on integrated watershed management, cumulative effects, climate change, green infrastructure and stormwater are welcome additions. Many of these new policies may empower forward-thinking municipalities to give greater consideration to these matters in their planning decisions.”

But it is still far from perfect. The ECO report explains further: “However, while these new policies are a step in the right direction, the majority are vague and leave broad discretion to municipalities to decide whether to actually take any sort of concrete action. Without strong, mandatory direction to municipalities, there is little likelihood of these problems being addressed in a meaningful and effective manner across Ontario. It is imperative that collective and consistent action is taken to tackle many of these challenges.”

This report points out the need for the provincial government to use stronger language to protect the natural environment from degradation by uncontrolled development, because: “The consequences of weak environmental protections are potentially enormous: continued loss of biodiversity, impaired water quality and vulnerability to the impacts of climate change, to name but a few. Weak provincial direction will also perpetuate land use conflicts within many local communities.”

In conclusion, it is not clear that the OMB is usually biased in favour of the developer when reviewing cases involving threats to the natural environment by development proposals. The adjudicators do appear to make a sincere effort to apply the rules correctly, but their judgments are influenced by several factors: the lack of clear wording in the PPS, which can be offset if the municipality’s Community Official Plan contains explicit policies protecting its natural heritage system, and if the municipality conducts a proper review of cases before they proceed to the OMB. Our municipal officials need to bear in mind that the increased importance attributed by the Province to local decision-making following the 2003 reforms enables them and their electorate to determine our community’s destiny.

Another recent development, which appears to provide additional support to the ability of communities to be in charge of how they grow, is the passing of Bill 73 by the Ontario Ministry of Municipal Affairs and Housing (OMAFRA), which (as of March 2016) is now in its second reading. The impetus for writing this piece of legislation was the City of Toronto’s frustration at having the OMB overturn their appeals against rampant development, which over time has not only destroyed hundreds of thousands of hectares of Class 1 agricultural land, but also resulted in urban sprawl that has put additional strain on the city’s maintenance budget.

The OMAFRA website (http://www.mah.gov.on.ca/Page11014.aspx), explains that part of the intent of Bill 73 is to “…help municipalities fund growth; give residents a greater, more meaningful say in how their communities grow; protect and promote greenspaces; make the development charges system more predictable, transparent and accountable; make the planning and appeals process more predictable; and give municipalities more independence and make it easier to resolve disputes.”

According to Borden, Ladner, Gervais (BLG), a national law firm, Bill 73 limits the power of developers to appeal official plans and reduces the types of appeals they can make to the OMB, particularly regarding policies that conform to provincial policy. (See their latest newsletter at http://www.blg.com/en/newsandpublications/publication_4342.)

Here is BLG’s assessment thus far: “Given the scope of amendments, both old and new, it is evident that Bill 73 represents a fundamental shift in the way municipalities, developers and other stakeholders must practise at all stages of the development process. How the OMB and the courts interpret (a) the new requirements imposed on councils, approval authorities and appellants alike, and (b) the differences in decision-making among municipalities as permitted by Bill 73, while still maintaining good planning principles, will dictate how the intent of this Bill as expressed by the Legislature will be captured in future planning processes for years to come.”

Although big developers have an advantage when it comes to funding appeals to the OMB, municipalities can arm themselves with carefully considered (with ample public participation), clearly defined, and foresightful official plans, and show that they are prepared to defend them for the public good. The Province certainly has an important role to play in strengthening its land use policies and adjudication system to ensure that communities can grow in a safe and healthy way, and in ensuring that a party’s bottomless pockets don’t automatically determine the outcome.