The Province of Ontario is currently undertaking a review of the Ontario Municipal Board (OMB), a quasi-judicial tribunal that rules on land use planning disputes. City planning staff prepared a response to the provincial consultation, outlining the City of Ottawa's position on OMB reform. However, the staff report did not agree with the province's suggestion that it increase the deference of the OMB to decisions of democratically-elected municipal councils. To address this issue, Councillor Leiper and I put forward a motion asking the City of Ottawa to support the consultation paper's suggestion to require the OMB to review municipal decisions on a standard of reasonableness (a well-defined legal standard of review). Today at Council, I made the following remarks detailing the rational for raising the standard of OMB review:
"The objective of this motion is not a new one. For decades, Municipal Councils across Ontario have sought to increase the deference that the OMB must demonstrate to planning decisions of democratically-elected municipal legislatures. In part, this stems from the fact that no other provincial land use planning tribunal in North America has as much power to overturn decisions of elected bodies as does the OMB.
In recent years, that call has become more acute as high-profile cases have abounded of OMB overruling Municipal Councils - not on an error of law or fact, but simply replacing Council decision with its own. To boot, these rulings of the Board are often made by a single member appointed by Queen’s Park with no required connection to the municipality concerned or specific legal qualifications.
In the last year alone, over 70 municipal councils in Ontario have passed motions seeking to raise the judicial standard used by the OMB. These are not calls to abolish the OMB. These are not calls to exempt Council decisions from judicial review. These are simply calls to ask the province to ensure the OMB - when considering planning decision of elected Council – only be permitted to overrule those decisions when the decision is not reasonable.
Reaction to the Public Consultation paper’s suggestion that the Province could consider establishing this new standard of reasonableness has been overwhelmingly positive.
The City of Toronto Planning Committee last week approved the staff report that includes, as a key recommendation:
§ That the OMB should focus on the validity of a council or approval authority decision. This approach to OMB oversight should focus on both a reasonableness standard and a review of whether a decision has followed local and provincial policies. (page 17)
The Association of Municipalities of Ontario– of which Ottawa is an important member - has articulated two key principles in regard to this reform exercise including that:
§ Municipalities are a mature form of government and are in a position to take on a more rigorous role in land use planning. This requires a significant transformation of the OMB’s roles and procedures.
I want to dispel two arguments I’ve heard cited against raising the judicial standard.
The first is that to do so would increase the burden on the courts. This is not the case. Appellants would and could still appeal decisions of Councils to the OMB. Raising the standard of review would not change that. And appeals from the OMB to the Courts would only be permitted under the same rules that exist today.
The second is that elected representatives cannot be trusted to make planning decisions as we are prone to politically expediency. The suggestion is that there is something wrong with Council voting to support the position of residents if that outcome is different from staff advice - hence the need for the OMB to be able to replace our decision. This argument fails for a number of reasons. If Council believes a certain outcome is in the public interest, those who disagree with us have two options. They can appeal to the OMB. If Council made an unreasonable decision, it will be overturned. Alternatively, if it is a reasonable decision, but an applicant or group of residents disapproves, they can punish us at the ballot box.
In conclusion, this motion is about ensuring the people of this city have a greater say over the future shape of their city. A vote for this motion is a vote to ensure that decisions affecting our city are made by their elected representatives with a more appropriate – or reasonable – amount of scrutiny. Let’s embrace the Province’s offer to have the people of Ottawa have a greater say in how our city grows."