Politicians beware the OMB

The rejection of two major building projects are being appealed to the Ontario Municipal Board, and an expert on local government says the developers in both cases stand an excellent chance of winning.

Dalron Ltd. is appealing city council’s rejection in April of its plans to build more than 300 homes in Minnow Lake. And Lepinia Investments is appealing the rejection of its plans to build a 60-unit, multi-level apartment building on Long Lake Road.

In Dalron’s case, the planning committee rejected the plan because of concerns of adding additional traffic to that part of Minnow Lake. With the Long Lake apartment building, the official reasons were: “the development is in an inappropriate location; the inability of the roadway to handle additional traffic; and inappropriate to the character of the neighbourhood.”

In both cases, local residents were well-organized and vocal, sending in several letters opposing the plans and bringing out large crowds to the council meetings to press their concerns.

While far from being the only cases from Sudbury being appealed to the OMB, both cases have one factor in common: the city’s own planning staff recommended they be approved.

Andrew Sancton, director of the local government program and professor of political science at the University of Western Ontario, said the fact staff backed the projects carries a lot of weight with the OMB.

“The city is in a considerably weaker position if it rejected the advice of its own staff,” Sanction said Aug. 27. “The OMB is making its decisions on good planning grounds. That’s what it’s there for. And the planning staff is there to make decisions based on good planning grounds. So it’s no surprise that (the OMB) pays more attention to the planners than they do to the politicians.”

City solicitor Jamie Canapini was in hearings Aug. 27 and unavailable for an interview. But in an emailed response to questions Aug. 24, Canapini said when such cases go to the OMB, city councillors first have to decide whether to fight the appeal in the first place.

But “when we defend, we hire outside counsel,” Canapini wrote.

And hiring outside counsel is expensive. According to a new policy passed by the city in February, when city staff is used by developers or other parties in an appeal, they are charged $6,000 a day. The city of Ottawa charges between $3,000 and $10,000 a day, while Kingston charges as much as $6,150 a day.

It’s an awkward situation for staff, Sancton said, because they can be called by a developer to support a position that’s contrary to official city policy.

“They would have to explain why they recommended what they did,” he said. “In effect, they would be testifying against their employer.”

And the politicians are faced with a choice of either dropping the case or paying private consultants thousands of dollars to undermine the position of its own staff.

“The city, which, presumably, would want some sort of technical expertise, couldn’t get it from their own planning staff, so they would have to hire a private planning consultant,” Sancton said. “It’s not unprecedented (for the city to win) but it’s definitely in a weaker position.”

Sancton has a student who’s writing a doctoral thesis on the same topic. He studied several cases in the City of Toronto where city staff either called for the rejection or approval of a project, only to have that recommendation overturned by city councillors.

He found that in the vast majority of the cases, either the city didn’t defend the case in front of the OMB, or it lost the appeal, even when it paid outside consultants to argue against staff positions.

“He found that the planning staff’s recommendation was the most powerful factor in the OMB decision,” Sancton said. “His conclusion is that the (OMB) makes the planning staff more powerful politically than they are in other places.

“The OMB in Ontario is very powerful, compared to other jurisdictions.”

It’s really a no-win situation for politicians, he said, because they can’t rely on staff expertise to back them up.

“They can’t ask their own staff to take a position that’s other than the one they’re on the record as taking,” he said. “And they’re not going to get outside planning advice for free.

“That’s why OMB hearings are so expensive – everybody’s going out and getting outside expertise. Which is one of the reasons why people object to the OMB so much, because it does get so expensive.”

Karen Kotzen, communications consultant with the OMB, said that, while the board can hear appeals on a range of matters, most appeals are centred on land use issues.

“And anyone can file an appeal, as long as (the matter) is within jurisdiction of the board,” Kotzen said. “We’re court-like. We’re adjudicative. The parties come before us with their evidence to argue their position. However the parties want to present their evidence is up to them.”

She said appeals of OMB rulings can be made to superior court, and what’s known as a Request to Review can be filed. But to succeed, those appeals must be based on finding some sort of error in law the board has made.

“Usually in a Request for Review, it’s because the board acted outside of its jurisdiction, violated the rules of natural justice, made a material error of fact or law, heard false or misleading evidence that could have changed the decision or they should hear new evidence not available at the time of the hearing that could change the decision,” Kotzen said.

And that’s what makes the OMB so powerful, Sancton said. Not liking the decision isn’t enough grounds to launch an appeal.

“Some other provinces don’t even have the equivalent of the OMB, but where the equivalent body does exist, it’s nowhere near as powerful as it is in Ontario,” he said.