Bill Hulet Editor

Here's the thing. A lot of important local issues are really complex. And to understand them we need more than "sound bites" and knee-jerk ideology. The Guelph Back-Grounder is a place where people can read the background information that explains why things are the way they are, and, the complex issues that people have to negotiate if they want to make Guelph a better city. No anger, just the facts.


Saturday, March 4, 2017

The Ontario Municipal Board

Synopsis

The Ontario Municipal Board (OMB) has grown over 100 years from an informal body designed to help towns and cities deal with technical issue into a pseudo-legal court that routinely over-rides planning departments to impose its own vision. This is not because it is "in the pocket of developers" so much as because it has adopted the "ideology of the law" and because it has had to deal with a lack of direction from the province. This has served the interests of provincial politicians in the past, but ill serves cities that need to have the flexibility to experiment in order to quickly retool for a society where environmental sustainability is quickly becoming of paramount importance. It is difficult to over-emphasize the importance of the OMB to our quality of life in cities, yet people rarely know much about it. Right now the provincial government is undertaking a review of the OMB mandate, and this means that this is a time when pressure on our MPPs will have maximum impact on the future of this body.

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In a previous article about Guelph and the Places to Grow Act, I finished off by saying that recent amendments to the Guelph Official Plan were currently under appeal to the Ontario Municipal Board (OMB.) (See case number PL140042 at this website.) The companies taking the city to court are:

  • Abode Varsity Living Inc
  • Loblaw Properties Ltd.
  • Terra View Custom Homes Inc. & Lambden Farm Trust 
  • Thomasfield Homes Limited
  • D Four Guelph Developments Limited 
  • Fieldgate Commercial Developments Limited
  • Greenways Group Guelph
  • Living Rivers

In the past, the OMB has had a profound influence on the shape of Guelph. To cite one example very relevant to my own personal experience, it overturned that part of Guelph's official plan where it stated that the corner of highways Six and Seven should only be used for light industrial activity, and allowed Walmart to build a "big box" mall there. In fact, the cost of that and other fights between the city and appellants to the OMB has made the city "gun shy" to the point where when Councillors make suggestions to change plans to make the city more "walkable", it is routine for staff to suggest that such a change would not survive an OMB appeal. That is usually enough to take a suggestion off the table. This dramatically limits the freedom of Council to find innovative solutions to problems that face the city. So the citizens of Guelph would be wise to learn a little bit more about this pseudo-judicial organisation, hence this article.

In the following I will be drawing heavily on the book A Law Unto Itself by John George Chipman. It was published in the year 2002, so it is somewhat out-dated, but I think his historical analysis is useful to understand how the board works, what issues it faces, and, whether or not it should continue in its present form.

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The OMB was originally created in 1906 as "The Ontario Railway and Municipal Board" (ORMB.) It's primary goal was to help towns and cities deal with the technical aspects of running streetcar lines. As such, it was not supposed to follow legal structures or be adversarial. Indeed, in the original three person configuration, one of the members was specifically supposed to be an engineer with experience in running a streetcar system. Later on, the mandate of the board expanded to include other technical aspects of city development----like electricity, telephones, and, gas lines. As time went by, the board assumed the duty of giving advice and oversight to municipalities for financial matters. This was important in the 1930s, as many municipalities in Ontario fell into severe fiscal problems during the great depression.

In 1917 the province decided that municipalities should be developing official plans to deal with new construction. The board was told that they had to look at these new plans and sign off on them before they went into effect. And in 1946 a planning act was passed that set out a formal process for creating a local official plan. At this point the board was designated as the body that the Minister of Municipal Affairs could send a dispute between two or more parties over an element of a municipal for settlement.

The idea was that judges and the courts are not properly set up to deal with the very technical elements of emerging technology or a financial crisis. Moreover, even back then it was recognized that lawsuits were very expensive and tax dollars would be better spent fixing potholes than lining the pockets of lawyers. The ORMB was considered a more cost effective system in that real experts would be available to help municipalities by offering advice instead of descending into formal legal battle.

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The thing to remember about the legal system is that it is a very blunt instrument to accomplish much of anything.

For one thing, it takes an ungodly long period of time to accomplish anything. To cite one ridiculous personal example, I have been asked to act as a character witness in a medical malpractice trial---and it has already gone on for seven years, with no end in sight.  It is tremendously unfair to individuals to spin on proceedings this long, but the majority of businesses simply cannot afford to allow things to go on for the lengths of time that lawyers and judges seem to believe are reasonable. Can you imagine the cost of a development project being on hold for seven years? And, of course, even if you don't mind putting your business or life on hold for years and years, legal fees have escalated to the point where only wealthy people can afford to access the law. So it makes perfect sense to create informal tribunals where people are dealing with the substantive issues instead of worrying about precedents, strict rules governing evidence, and so on.

Also, to get back to the original technical nature of the ORMB, the legal system doesn't do a very good job understanding newly emerging technologies or ideas like railroads, electrical grids, natural gas pipelines, intermodal transit systems, "walkable" and "resilient communities", and so on. Lawyers and judges are experts in one thing only, the law. And they spend their time dealing with a full panoply of human conflict---from petty larceny, through physical assault, to, murder. The only way that they can deal with technical issues that are outside the domain of the law is to go through a painful process where each side of the conflict bring in their own pet experts to "educate" the judge and jury in the fine points of the discipline.  At least with the board, you have the potential to have people in charge with some experience in the subject at hand.

Finally, and most importantly, the legal system is pretty much adverse to preventing problems. It does deal with the issues that individuals and businesses can create for their neighbours---but only after the damage has already been done. So if a business wants to build a rendering plant in a residential neighbourhood---to cite an obvious, hypothetical example---a law court will not stop the plant from being built, it will only award "nuisance" damages to the neighbours after the business is already running. In contrast, the OMB will stop development based on a reasonable expectation that a rendering plant will stink up the community and destroy the property values of people who already own homes there.

For these reasons, it make sense in principle for the province to set up a separate, informal body to deal with planning issues. Unfortunately, Chipman believes that the board has been "captured" and it no longer does the job it was originally designed to do.

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People will sometimes say that the OMB has been "captured" by developers. This is the idea that it no longer believes that it has any responsibility to the general public and instead overwhelming rules in favour of people who's business is making money off sprawl. Chipman would say that this isn't true. He's done a statistical analysis of board rulings, and believes that it routinely rules against the development community in support of municipal plans and some particular types of property owners. For example, he believes that the board has been quite zealous in protecting rural farmland by preventing farmers from severing off lots to build housing. Moreover, he believes that the board has also tended to protect neighbourhoods of single-family, detached homes from being altered by the introduction of either apartment buildings or social housing (retirement homes, group homes, etc.)

What has happened, according to Chipman, is something else. First, he believes that the province has been historically negligent in the creation of policy that the board can use to evaluate individual planning decisions. In the absense of "de jure" (or written down, official) planning policy, it has created its own "de facto policy" (or what is actually being done) policy. Secondly, he believes that the board has hired so many lawyers, and dealt with lawyers hired by businesses so often, that it has been captured by what he calls "the ideology of the law". That is to say, that the board has increasingly ceased to see itself as an informal tribunal that is supposed to help municipalities quickly and cheaply find the best way to plan their cities, and instead acts like a totally impartial law court that where different factions come to fight it out according to strictly defined rules.

Among other things, this "ideology of the law" has resulted in the OMB becoming dominated by lawyers, costing a huge amount of money to access, and, taking exceedingly long periods of time to come to a decision. At least in terms of accessibility, it has become a copy of the court system, which totally negates that particular reason for setting it up in the first place.

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The OMB is supposed to make judgements that are "in the public interest", but the problem that it faces is how to decide just exactly what that is and how to find it. As Chipman writes,
"There is not a general public interest:  it is only the interests of different groups, which, if sufficiently influential in the context of the issues under regulatory consideration, come to be considered as the public interest."
(A Law Unto Itself, John George Chipman, p-28) 
Looking at the decisions of the board, Chipman believes he has found evidence of a general understanding of "the public interest" that the board has tended to follow. 
---the normative distinction between public and private has tended to disappear, particularly as the board has identified ever smaller groups as the public. Yet it has regularly followed this empirical, uncritical approach, most noticeably in developing its policy for the protection of neighbourhood character. (Chipman, p-36)
What Chipman is referring to is the historical legacy of a board that for decades tended to define "the public interest" in terms of protecting the "neighbourhood character" of an individual, geographic area filled with single-family, fully detached homes---rather than that of the more general "public interest" that is served by the creation of things like higher density rental properties or social-housing such as group homes. The "public interest" would certainly be served by increasing the stock of rental accommodation, but the board has defined the term in its own, peculiar way to mean  specifically those "existing property owners" who own singled detached homes in low-density areas.

Chipman believes that in his historical analysis of OMB rulings of the past, he has seen a clear tendency of the board to rule against developers who seek to increase the density of housing stock in areas that currently had low-density, suburban sprawl. This has created problems for cities because it meant that whenever someone wanted to build an apartment tower or group home, if there is a "neighbourhood" of people living in nearby, single detached homes, they got an automatic veto. Not only did this shut down intensification, it made developers, city councils, and planning departments "gun shy" because they don't want to get involved in a long OMB battle.

However, this did eventually change. Chipman believes that this bias towards sprawl has been diminished since 1994. Unfortunately, in the interim Ontario cities have suffered from a dearth of affordable and social housing because---at least in part---both were so difficult to build due to OMB refusals. (Chipman p-112)

What makes this unarticulated policy even worse was that the board seemed to really favour only neighbourhoods of single detached homes. Areas of the city where they don't predominate just didn't seem to matter. This meant that in all other areas the board tended to be more concerned about property owners getting the most out of their investment rather than the public interest (or "preserving neighbour character".)
"[t]he owner of the land should be able to obtain as much economic gain as possible so long as it does not override, to any significant degree, the public interest"
(Chipman, p-46, orig citation, West Hill Redevelopment Co vs City of Scarborough, 1995)

What this unspoken policy resulted in was a policy that forced all intensification into specific "sacrifice zones" of the city (like a downtown core or older areas that are zoned for multiple uses), and "protected" suburban sprawl from any attempts by a city to retrofit it into the sort of higher density that would support public transit, "walkable" neighbourhoods, and, lower cost housing.

As I look back on the example of the Walmart battle, this makes sense. The presentations to the Board from clergy people about the impact of increased traffic on three cemeteries and a Jesuit retreat center had effectively no interest to the OMB---because they were in an area that wasn't restricted to single-family, detached housing. According to the de facto board policy, this meant that there was no "neighbourhood character" to preserve.

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Another aspect of the de facto policy that the OMB has developed is what classes of problems it chooses to look at when deciding on a specific planning issue.
Where the health and safety of existing and future inhabitants are involved, where there are patent and immediate hazards to the well-being of the community, the municipality should have the unfettered discretion to sterilize the use of lands, without the additional burden of compensation.
(Chipman, p-47, orig cit, Dickinson v. City of Toronto, (1999) 37 OMBR 366. 

The problem with the above are those three words "patent", "immediate", and, "sterilize". The first is a 20 dollar, lawyerly word for "obvious". The second refers to the time frame---the board doesn't seem to think that an "eventual" problem is sufficient to require real action. And that word "sterilize" seems to imply that stopping the landowner from doing what he wants with the land is the moral equivalent of a nuclear strike.

The problem with this attitude is that there are lots of problems that cities and society face that should be dealt with through municipal plans that are neither "patent" nor "immediate". As mentioned above, in the past the OMB has rarely seemed to believe that a lack of affordable housing is sufficient reason to over-ride the concerns of the people who own single detached homes. This is explained by seeing that this sort of problem can never be seen as "patent" or "immediate" (unless you, yourself are looking for an affordable place to rent.) One can only assume that any attempt by a municipality to deal with something as "nebulous" as climate change would never be seriously considered sufficient grounds for removing a landowner's right to to "obtain as much economic gain as possible".

I would suspect that this is part of what Chipman sees as "the ideology of the law". The law doesn't really exist to create justice in terms of what ordinary people consider "fair". It certainly doesn't seem interested in promoting "the common welfare". Instead, what it seeks above all else is "consistency". That is exactly what Anglo-Saxon "case law" is all about---making sure that each similar situation is dealt with in the same way that similar situations have been dealt with in the past.

This is why the law is so conservative. If you look at the historical record, time and time again the legal system has often held onto some aspect of social policy long after it has become obvious to any educated, intelligent person that it is patently ridiculous. Perhaps the most odious examples were the "Chancery Courts" that Dickens lampoons in Bleak House. Today, we hear endless complaints from all sorts of people---from anti-poverty activists to high ranking judges---about how time-consuming and expensive the court process usually is, yet nothing ever changes. That's what happens in a truly hide-bound and conservative institution, it recognizes a deep, systemic problem, wrings its hands, yet never seems to be able to actually do anything.
Roy McMurtry, Wikimedia Commons

"It's only the relatively affluent in society, for the most part, who can afford to go through a trial," says Ontario Chief Justice Roy McMurtry. Access to justice, McMurtry says, is the most important issue facing the legal system. (From, Toronto Star article "The dark side of justice", by  Tracey Tyler Sat., March 3, 2007.)

In the case of the OMB, the issues aren't so much access to the law (although that is an issue too), but rather the way planning issues just keep piling up and yet cities don't do much of anything to stop them. Low density sprawl threatens to bankrupt municipalities? Nope, not going to stop that. Public transit systems going bankrupt? Nope, not going to deal with that. Housing becoming out of reach of all but the wealthy? No way are we going to fix that mess. Climate change threatening to destroy human civilization? Don't even think about that one. 

Of course, it would be wrong to blame all of this on the OMB. But it's commitment to the ideal of consistency---that "ideology of the law" thing---means that it is really loathe to change the basic idea that land belongs to whomever owns it and they should be able to do whatever they want with it---and the Hell with the public interest. Why? Well, because that's the way things have always been done since the ORMB was first created in 1906.

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Another way the board has been "captured" by the legal system involves the way it treats evidence and the process of coming to a decision. As I pointed out in the beginning, the original ORMB was meant to be an informal, tribunal, with specialized knowledge. Municipalities and individuals were supposed to approach it in order to deal with complex issues that they didn't understand well enough to successfully resolve. But times have changed. Cities have planning departments and there are regulations that govern the development of official plans. The OMB has ceased "filling the gaps" in municipal expertise and instead become an over-protective parent that refuses to allow cities to "push the envelope" and experiment in order to find solutions to the problems that we are facing in the 21st century.

OMB hearings are supposed to follow city plans and provincial policy. Yet the board has ruled that each of these are only to be considered as one piece of evidence among many, and, unless a specific party introduces some part of the plan as evidence, it is not to be considered by the board at all. To be fair to the board, what Ontario considers "official policy" is a tremendously nebulous thing. It isn't restricted to something passed by the legislature, and doesn't even have to be openly published by a Ministry. The board needs to create some sort of consistency in its rulings for businesses to be able to make plans with some sense of what will and will not pass an appeal to the board, or else they will be constantly spending money on properties and proposals that fail for one reason or another.
The declaration of provincial interest is a very strong strong tool to which the Board is obliged to give considerable weight during a hearing. However, as I emphasized at our meeting, it is not an end in itself. Unless the evidence is supportive of the provincial statement and its application in a particular hearing is clear for all to see, the matter could well fail...As an administrative tribunal, the Board conducts hearings in an adversarial environment and the evidence we hear is always the final determinant of the adjudication.  
(Chipman, p-156, orig. cit. "a letter to a high official in 
the Ministry of Natural Resources, Sept 6, 1990")

What Chipman and I have characterized as being "captured" by the "ideology of the law", is ultimately a piecemeal attempt by a group of professionals to help developers and communities navigate a very complex, ambiguous process where huge amounts of money are at stake.

Adding to the innate difficulty of this is the fact that secrecy is often important because developers are in competition with each other, and, have a vested interest in not letting landowners know what is going on so they can "bank" land for the smallest cost possible. This means that developers are often loathe to honestly engage with a city in order to see what is or is not acceptable in a given project, because if they did so, "the cat would be out of the bag". Because we have the OMB appeal process, it is a lot easier for a developer to "ask for forgiveness instead of permission." This is especially true because the OMB "dad" has a very well-established pattern of over-riding the municipal "mom" when developers ask if they can stay out late and build a big box mall.

Also consistency in planning is tremendously important to this process because if someone banking land cannot accurately predict what can and cannot be done with it in the future, they risk ending up with something that they cannot use. Land banking is, ultimately, a form of speculation. And speculation is a very risky business if you cannot predict what will happen in the future. In effect, it appears that part of the job of the OMB is to protect speculators from taking a loss. 

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It is, of course, unfair to put all the blame of this on the board. If the province was truly unhappy with the current state of affairs, it could change the board's mandate, or, institute firm policy that it would have to follow. If it did this, however, it would have to make a strong commitment to a specific plan of action---which would alienate part of the voting public. The recent success of "populist" politicians who ride to success based on slogans instead of sound policy is more than enough to scare provincial governments from doing such a thing.

Probably the worst example of this was the infamous Rob Ford, who destroyed a long-anticipated, complex, fully-funded, transit expansion to fulfill a campaign pledge to end "the war on the car". As a result, Canada's largest city has fallen several more years behind on absolutely essential improvements in public transit.
Rob Ford, c/o Wiki Commons
Former Mayor David Miller's administration came up with the $6-billion Transit City plan, which would build a 120-kilometre network of light rail transit across Toronto.
Subways cost about six times more per kilometre to build than light rail, but Ford said voters want subways.
"Ladies and gentlemen, the war on the car stops today," Ford announced. "We will not build any more rail tracks down the middle of our streets."
(CTV Toronto News, December 1rst, 2010) 

Not to give too much of a hard time to our current mayor, even Cam Guthrie indulges in this a bit when he suggests that there might possibly be a way for Guelph to provide affordable, fully detached homes to young people---just like in the "good old days".
Cam Guthrie,
from the City Website
Some of the change can be attributed to policy changes, such as the Places to Grow legislation that mandates the City direct growth to its core built-up areas. The province has launched a 10-year review of Places to Grow, and the City of Guelph will be providing comment as part of that process. As Mayor, I will also provide feedback as a member of the Association of Municipalities of Ontario and the Large Urban Mayor's Caucus group. I will ensure Guelph's voice and Guelph's experience is heard. In my personal opinion, I believe a goal of many young families is to eventually own a detached home, with a backyard to throw the ball around with their kids. If there is a way to accommodate more of this type of housing within our growth plans, I think we should.
(Cam Guthrie,  "State of the City Address", c/o Guelph Mercury/Tribune April 24 2015) 

Politicians know that a significant fraction of the voting public act like spoiled brats and refuse to listen to complex discussions about why suburban sprawl and private transportation are being priced out of the reach of most individuals. Instead, they shove their fingers in their ears, hum loudly, and, vote for idiots who pander to their ignorance. If the province were to be more honest about where the province needs to go, the politicians developing that policy could very easily find themselves being replaced by people who are either too stupid to understand where the public interest really lies, or, don't even care. (Think for a moment about what is happening South of the border.) Having an informal tribunal---like the OMB---that can take all the heat is a very useful thing. This is why provincial governments have been loathe to get rid of it.

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Societies face existential problems once in a while. Right now, the entire civilized world is facing several at the same time. The biggest is climate change, but there are others. Wealth stratification is stripping the gears of our democracy. Experts predict that within a few decades most jobs will be replaced with automation which will probably mean that we will have to find some way to decouple income from employment. These are enormous problems that nations, provinces, and, cities are going to have to deal with. And cities are where "the rubber meets the road" with these sorts of things.

To deal with these issues, we are going to have to innovate and significantly change "business as usual". And this is not going to happen through tinkering and incremental change. Society is going to have to do something that it absolutely hates doing---change fundamental ways of thinking about key concepts. Cities are going to have to be able to pursue bold, radical experiments if we are going to change to a sustainable society that preserves some degree of egalitarianism. Otherwise, we face a dystopian future where a small elite live in gated communities and the vast majority cannot afford to live anywhere else than hovels---while in the background the environment collapses around our ears. This sort of change simply cannot happen while a very conservative pseudo-judicial board continues to look over the shoulder of cities and force them to adhere to a 1950's vision of "happy motoring" and suburban sprawl.

I suppose it all comes down to what you think is happening in our society. If you are a climate change denier and believe that it's all a "socialist plot to take our money", we can continue with business as usual. If you are a climate change denier "lite" and agree that the problem is real but have a strange tic in your brain that allows you to hold that idea while at the same time thinking that this doesn't mean that we have to do anything about it---business as usual too. But if you accept what the overwhelming majority of experts are saying---and they are certainly very concerned---then society is like a car speeding towards a cliff. Rolling up the windows, changing the station on the radio, etc, aren't going to avoid catastrophe. We need to jam on the brakes and quickly turn the wheel to avoid a catastrophe. The OMB is one of the elements of our society that is fighting tooth and nail against any attempt by municipalities to experiment and find new ways to develop a sustainable society. It's time for the board to either "get with the program" or "let go of the steering wheel".

Shutterstock Image

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I started this article by listing the several businesses and one community group which have appealed amendments to the Guelph municipal plan. It would have been perfectly logical to write something about why exactly these groups are appealing the changes to the plan. But if you look at the board website, all you see are dates, places, and, times. I contacted a couple members of Council, one fellow who recently settled with the Board, and, a community group that was one of the appellants. Only one person, a Councillor, got back to me. He tried to get someone from staff to respond to my question about what the substance of the complaints were. I haven't gotten a response as of publishing.

Eventually I cornered a Councillor and he grudgingly admitted (so grudgingly that I am letting this be an "anonymous source") that no one wants to talk to me because everyone has the absolute fear of God put on them about talking to the press about any issue "before the courts". This shows how much the OMB has strayed from it's original reason for existence. The OMB isn't a court. It's supposed to be an informal venue to settle complaints about technical issues facing cities. If you are "in the system" this secrecy makes sense---after all a lot of money is at stake. But if you aren't, it makes no sense at all. I don't give a damn about developers and their lawyers making money and neither should you---what we need to care about is the public interest. If citizens don't know what is going on, then there is no way we can exert pressure on politicians to try to change things. Business people have to adapt to what the public wants, the public shouldn't have to adapt to what business people want. The costs of doing business will get passed on to the consumer anyway---but the city is where we live and we should have a collective say in how we want to live.

It is true that Guelph is a representative democracy and we elect our Councillors to make decisions for us. But it is tremendously important for ordinary voters to have some understanding of how the system works and why things happen the way they do.  That is why I am writing this article about the OMB. But people are fickle and they generally only pay attention to the "here and now" instead of the "big picture". That means that there are only a few "teachable moments" with any given issue where the media can write a story with some hope of ordinary folks paying attention. This might be one of them, but I'll never know, because the "ideology of the law" dictates that none of our elected officials can make a fuss about a handful of corporation's attempt to roll-back much needed changes to our Official Plan.

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This is doubly annoying, because the Provincial Government is currently reviewing the mandate of the OMB. Most provinces don't have anything like the OMB. Indeed, the immense powers of the OMB are pretty much unique in all of North America. Most jurisdictions have some sort of appeals process, but none of them have morphed into a full-blown, pseudo-court that gives developers so much power to overturn the decisions of planning departments. Look at a great many problems that our cities face and you can see the baleful influence of the OMB. And yet, the majority of citizens don't even know that the thing exists. Instead of aiming their anger at the board, they direct all their anger at their elected municipal officials. If you have concerns about the inability of cities like Guelph to construct forward-looking, walkable, and, environmentally sustainable development plans, I would suggest that this is an ideal time to contact your local MPP and let her know that you think the OMB has lived long past it's usefulness.


Liz Sandals, (Photo from Legislature Website)

You can contact her by:
Canada Post:  
173 Woolwich Street,
Guelph, N1H 3V4
Email: lsandals.mpp.co@liberal.ola.org 
Phone: (519) 836-4190
Fax: (519) 836-4191






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