Us Versus Them

by Linda Pim

The odds are stacked against nature advocates when pleading their cases before the Ontario Municipal Board. Just what does an environmentalist have to do to win around here? Ontario Nature’s Linda Pim provides the answers

(This is a slightly expanded version of a feature article of the same title in ON Nature, Winter 2004/05.)

When Ferma Aggregates announced its intention to create a new quarry on the Carden Plain, neither the City of Kawartha Lakes, where the quarry would be located, nor the Carden Coalition for Responsible Planning, a citizens’ group (which includes Ontario Nature), was pleased. The Carden Plain east of Orillia happens to be prime habitat for the loggerhead shrike, an endangered bird species. All three parties ended up at a hearing before the Ontario Municipal Board (OMB) in 2002.

“It was clear, almost from the beginning, that the OMB members wanted to approve the quarry and that they viewed environmental concerns as obstacles to be overcome. What simply galls me is that they ignored the environment,” says long-time environmentalist Ron Reid, who was active in the Carden Coalition for Responsible Planning. “There were whole days of our and the city’s testimony on environmental matters where it was as if the OMB members were at another hearing. They basically dismissed our evidence without even considering its merits, whereas they accepted Ferma’s evidence on a very flimsy basis. It left me with a very sour taste about fairness and approaching decision-making impartially. I wouldn’t do it again under the current OMB structure and rules and with the current OMB members.”

In spite of an OMB decision in favour of Ferma on quarry approvals under the Planning Act and the Minister of Natural Resources' approval of the aggregate license as recommended by the OMB, all was not lost in the end. Earlier this year, the Minister of Natural Resources facilitated discussions to develop a shrike management plan for all the Carden lands owned by Ferma - in fact, the company has already taken some steps in that direction.

Mapping out just how the land in Ontario’s municipalities will be used is a highly contentious issue in which the OMB is a major player. And it is a player that nobody loves, many loathe, some want abolished and others want fixed.

“The OMB is probably among the most adversarial tribunals in the country, almost like a court. It doesn’t need to be that way,” says Theresa McClenaghan, a lawyer at the Canadian Environmental Law Association (CELA) who has represented many community groups before the OMB. Bruce Krushelnicki, a planner who sat on the OMB for 13 years, characterizes the board as “not a fun place - it’s the last resort. The board is there to make tough decisions, so by definition and by nature, it’s a controversial organization.”

The OMB is hardly a new institution. Created in 1897 by the provincial government, the board’s jurisdiction to hear disputes on municipal matters now involves more than 180 statutes, but most of its work arises from the Planning Act. This act governs how municipalities decide on and plan for uses of land - from how towns and cities will grow to how they will protect nature. At any given time, the OMB has about 25 members, all appointed by the Ontario Cabinet for terms of three or more years that can be renewed. The OMB’s annual budget is $6.7 million.

Lately, the OMB has been making efforts to be more user-friendly. "We're always trying to improve the public's knowledge of the OMB's mandate, providing people with information to better understand the process," says OMB spokesperson Lisa Joyce. (OMB chair Marie Hubbard could not be interviewed for this article; it would be like phoning a judge.)

While all other provinces except British Columbia and Quebec have a board to which one can appeal some municipal land-use decisions, no other board has powers as sweeping as those of the OMB. It can throw out any municipal land-use decision appealed to the board and substitute its own decision. It can decide what evidence it will hear - and not hear - before it makes a decision. “There’s a lot of anger,” says Krushelnicki, about the OMB’s power. “It’s a legitimate argument that the OMB supercedes local democracy. But what the alternative would be is the question.” If residents dislike the time, cost and results of an OMB hearing process, consider living in a province where the courts are your only recourse.

There are some fundamental differences between a land use decision by a municipal council and one by the OMB. Councils protect the public interest and decide based on both factual, expert evidence provided by their staff (on planning, natural heritage, traffic patterns, etc.) and political considerations. The OMB is solely an evidence-based body.

Whose interests the OMB serves is debatable. Former OMB member Barbara Heidenreich contends that “the board makes sure private interests are considered fairly with regard to the public good.”

A seasoned planner who often appears before the OMB notes that “the board is not a public advocate or a municipal advocate or a development advocate. Community groups need to understand that the board is not there to represent the interests of the residents. It has to balance the concerns of the public at large with those of private individuals or groups.”

During a hearing under the Planning Act, the OMB listens to evidence on the relevant environmental, social and economic issues; provincial legislation and policy statements; municipal planning documents (such as official plans and zoning by-laws); the rights of individuals; and the best interests of the whole community.

Is the OMB Pro-Development?

“It is unduly expensive for the public to be engaged in the OMB process,” says Rodney Northey, a lawyer who regularly appears before the board on planning matters with major environmental components. “That makes the OMB latently pro-development. In my view, the public should also be concerned about the capture of the OMB by developers and municipalities. The public has had some awful experiences before the OMB where the developer and the municipality are aligned and the public is on the other side.”

Northey believes that nothing is working well at the OMB when it comes to environmental protection. “Over the past decade, topics involving ecology, conservation biology and hydrogeology regularly arise before the OMB, but the scientists at the leading edge in these fields have received completely inconsistent treatment at the hands of the board.”

In 2003, Ontario Nature retained lawyer and planner David Berney to conduct a study of OMB decisions made between May 1996 and July 2003 aimed at obtaining an objective analysis of whether the OMB tends to be pro-development. In his exhaustive report, Berney reviewed the 71 cases that came before the OMB in which significant natural heritage concerns were at stake. Berney found that the OMB’s decision favoured the protection of nature in only 30 percent of cases in which defenders of the environment were the appellants of a municipal decision or were opposing developers’ appeals. In stark contrast, when representatives of development interests were the appellants, the success rate in the resulting OMB decisions was 71 percent.

Berney cited a number of reasons for the high failure rate of nature advocates at the OMB: potential appellants receive little support and guidance from the OMB; their cases may be weak; they lack the financial resources that the development industry has; the Provincial Policy Statement under the Planning Act is unclear about nature protection; municipal official plans are sometimes inadequate when it comes to protecting natural areas; OMB members may or may not place appropriate value on nature protection; and too many cases proceed to the OMB before proper municipal review, with the result that the resources of nature defenders are spread too thinly because there are simply so many municipal decisions to consider appealing.

Victory Dance: Tips for Success

Sometimes, though, nature does carry the day, so let's find out how to win under the current OMB structure. The Shoreline Stewardship Association of Cloud Bay and Little Trout Bay fought a proposal to build a 70-unit seasonal trailer park adjacent to the Cloud River estuary and the provincially significant Cloud Bay coastal wetland on Lake Superior. They won in an August 2002 OMB decision in spite of municipal support for the application.

“Our paper trail was detailed and accurate even before we hired a lawyer, showing there was nothing frivolous about our complaint," says Glen Dale, the group’s five-year president until mid-2004. "The planner we hired kept in regular touch with the OMB office. Our biologist’s testimony was critically important to our success. We had mercilessly nudged the natural resources and municipal affairs ministries to get involved - and they did. Our group hung together like glue - that really is a part of winning. The people came out to the hearing consistently and contributed financially."

Adds Dale, "We did not expect the fairness we got from the OMB member. He listened to every bit of evidence and took it all into account in his decision."

More often, however, nature advocates need all the help they can get. And while the OMB is ripe for reform, much can be accomplished for nature protection under the current rules and structure of the board. Here is a list of tips and advice on how to succeed at the OMB.

• Avoid the OMB through good municipal decisions: Winning the day at your municipal council is much better than heading to the OMB. Many municipalities' planning capabilities have become more environmentally progressive over the past 10 to 15 years. “In many cases, municipal decisions are better than OMB decisions,” notes Reid. There’s still a long way to go, though, says Heidenreich: “I don’t think many municipal councils are getting analytical, independent, professional advice from their planning staff as to whether the applications meet good planning principles.”
  
  Community groups need to make their position known well before a staff recommendation on a development application goes to a council vote. Find out who owns a natural area in your community that your group is concerned about, and locate and talk with the owner, if possible, about your interest in seeing the land protected. If the landowner plans to develop the land, work with that person and municipal planners to try to reach an arrangement that minimizes damage to natural areas. Ask for help, reports and information from municipal planners - after all, as a taxpayer, you are paying their salaries.
  
  Bear in mind that once your group has the support of your municipal council, you may have to work hard to keep that support after a council decision, especially if a developer appeals that decision to the OMB. Many community groups do not want to get involved in OMB hearings unless the municipality is on their side because, the Cloud Bay decision notwithstanding, the chances of success are too slim.
  
  
• Avoid an OMB hearing through mediation: OMB members conduct mediations, or the parties involved can hire their own mediators even before any OMB proceedings, in order to try to avoid the cost and grief of a hearing. While many development controversies do not lend themselves to mediation, and those that do often lead to an unsatisfactory compromise, mediation may be worth a try. Mediation may decrease the number of issues to be discussed at a hearing, making it shorter and cheaper.
  
  
• Be a party at the hearing, not a participant: OMB members listen to everyone who appears before them, but a group has to be a formal party to the hearing to have a measurable impact on the outcome. A participant is an individual or group from the community who makes a statement to the board, provides the statement in writing and can be cross-examined by the parties and the board. However, a party has the full range of rights and responsibilities: full-time attendance at the hearing, and the right to retain and summon expert witnesses, cross-examine those of other parties, participate in a mediation and seek a review of an OMB decision. For most OMB hearings, a group that is a party will need to hire a lawyer. One situation in which participant status is useful is if individuals or community groups take part as active supporters of a municipality that has made a good planning decision.
  
  
• For short hearings, be your own agent: For an OMB hearing that lasts only a day or two, a lawyer may be unnecessary if you have an articulate spokesperson who knows how the OMB operates. “Be the agent for your group, and if you need one or more expert witnesses such as a planner, spend your money there,” advises Peggy Hutchison who, over the years, has succeeded in all but one of the dozen OMB cases in Grey County in which she has acted as her own agent or for another person or group. Alternatively, a group can hire a planner or other expert as a witness and have that person also act as its agent.
  
  
• Get pre-hearing help: Advise the planner at the OMB office assigned to your case of your interest. Developers’ lawyers do this all the time - and so can you. For all but the simplest cases, insist on a pre-hearing before an OMB member, at which all parties and their positions are identified and the list of issues might be shortened to the truly contentious ones. At a pre-hearing, part of the OMB’s job is to educate members of the public about how they can be effective contributors. “Now the OMB is much better at explaining the hearing process than it was a decade ago,” says Hutchison.
  
  
• Be prepared, know the OMB’s rules and respect them: You cannot sail into an OMB hearing and wing it. Community groups should approach a hearing assuming that the board member is acting in good faith and wants to make a good decision. Even so, the board member will need good evidence on which to base that decision. “Community groups must understand the need for expertise to put them on an equal footing with the other parties,” says McClenaghan. “They need expert evidence, not just arguments at the end of the day.” Arguments based on emotion and passions do not impress OMB members. Evidence needs to be “strong, relevant and focused,” notes Berney in his report for Ontario Nature.
  
  Groups should read the OMB’s Rules of Practice and Procedure (available on the OMB website, see below) and respect them. If you dislike the rules - too bad. Becoming angry at the OMB during a hearing will not get you anywhere. Being there means you think the OMB has a legitimate function. Although the risk is low, the board could require you to pay some of the opposing party’s costs if your group presents such a poor case or acts so unreasonably that the other party thinks that you have has wasted the OMB’s time - this has happened. A “cost award” levied against a party, especially against a community group with limited funds, can be devastating. On the other hand, the OMB rarely awards costs because doing so may send out a “chill” dissuading public-interest groups from participating in future.
  
  
• Ask the OMB to send back a poor municipal decision or to request that a municipality make a decision: The OMB has the authority not to hear an appeal brought before it. Because they can be in a hurry to secure development approvals, developers will often appeal the lack of a municipal decision (the Planning Act allows this) if, for example, municipal staff have not had time to complete their review of the developer’s application. A currently proposed change to the Planning Act may give municipalities more time to make their decisions, possibly leading to better decisions and fewer appeals. At an OMB pre-hearing, a community group should consider asking the board to send a case back to the municipality if no municipal decision has been made or if the group can persuade the board that the decision was faulty in some way. However, the board rarely uses this power.
  
  
• Community members as expert witnesses: While you may not be an ecologist or engineer, you may have special knowledge about your own area that can be valuable evidence at the OMB. “People bring the human context, the character of the community, the value of a woodlot to the community,” says Krushelnicki. “Tell us what you know - play to your strengths in the information that you bring to the board.” On the other hand, do not use someone who lives in the community or is part of your group as your planner, biologist or other professional witness; that person may be viewed as an advocate rather than an objective expert.
  
  
• Summon provincial government staff as witnesses: Provincial ministries have biologists, planners and other professionals on staff who can provide a wealth of helpful evidence but who will not attend an OMB hearing unless the Ministry of Municipal Affairs and Housing is a party (an all-too-rare event). However, your group can issue a summons (subpoena) to have a provincial staff person appear at the hearing. The OMB website tells you how to issue a summons. Your group does not have to pay for the witness’s time at the hearing.
  
  
• Keep the community involved and informed: Especially in a long and complex OMB hearing, it is important to issue regular updates to your supporters, cultivate them, keep them motivated to support you, and encourage them to come to the hearing whenever they can. You can increase your chances of success at the OMB by having enough money to mount a credible case; if you have not already rallied your supporters, however, you are unlikely to be successful fundraisers. Raising money is easier before the start of or during a hearing than once it is finished, particularly if the OMB decision goes against you.

While community groups are happier finding ways to protect nature without resort to an OMB hearing, sometimes it is the only way. The above tips should provide some help. Still, some matters are not within your control. “Which OMB member we happened to get did make a real difference. He really paid attention to the natural heritage arguments,” says Glen Dale, of the Cloud Bay group.

Can the OMB be fixed?

In despair and frustration, some Ontarians say the OMB should be abolished. Others think that reform is possible. Without question, the OMB process needs a major tune-up. By most accounts, environmental concerns are not well enough appreciated during hearings and taken into account in board decisions. The provincial government is currently considering reforms to the OMB process. Ontario Nature has been making submissions to the government on OMB reform for the past three years. Here are some of our key recommendations.

OMB appointments: “If we were working in a fair and accountable system, you should come out of a hearing with the same decision no matter which OMB member you get, but that’s not the case now,” says Ron Reid from the Carden Plain group. While board members come from a diversity of professions - they have been lawyers, planners, engineers, economists, professors, municipal politicians - once they are on the OMB, they shake out into a continuum. Some are more interested in the concerns of private-sector proponents while others better appreciate the public interest.

Says CELA's McClenaghan, "members should have robust environmental knowledge and if they don't have it, they should get training in it." In a submission to the government in August 2004, former OMB member Ted Yao wrote that “the board has done a good job, but it has been hampered by a less than transparent appointments process. If this were fixed, it would improve public acceptance of its decisions…The most needed reform is to create a primarily merits-based appointments process...This reform is long overdue and critical to the overall functioning of the board.” Both Yao and CELA support a selection process similar to that for judges, in which an external committee makes recommendations to the Attorney General. The OMB chair and the committee would administer a competitive recruitment process.

Once Cabinet appoints OMB members, their ongoing training and education is essential. The board already does some but should do more. CELA is the only environmental group that has been asked to participate in OMB member seminars.

Intervenor funding: While many proposals have been made for levelling the financial playing field at the OMB, the one that receives the most consistent support is intervenor funding for groups representing the public interest.

The OMB has never had intervenor funding, except under the former Intervenor Funding Project Act (IFPA, below) in cases where an OMB member sat with what was then an Environmental Assessment Board member on a Joint Board under the Consolidated Hearings Act, with approvals under several provincial laws heard concurrently.

The IFPA was in place for 10 years until the Mike Harris government repealed it in 1995. Although imperfect, implementation of the IFPA put community groups and environmental organizations on a more equal footing at hearings with municipalities, the province and developers.

If a municipal planning matter cannot be resolved at the municipal level, then intervenor funding at the OMB is essential. At present, small community groups must cobble together enough money to face off against deep-pocketed development interests. Ontario Nature proposes a system in which the party seeking funding must represent a broad public interest. Inappropriate funding would be avoided through an intervenor funding hearing, prior to the main OMB hearing, at which an OMB member would determine who merits funding and how much. A funded group should have to provide some of its own funding so that no one gets a "free ride."

The source of the funding is a contentious issue. Under the IFPA, the money came from the proponent (a developer, a municipality or the province). Some argue that for developer appeals, the developer should pay for the intervenor funding as a cost of doing business. Others prefer publicly sourced intervenor funding, coming, for example, from part of development charges, which are a tax on new urban development. The OMB itself could take a number of steps to reduce the length of hearings and therefore reduce costs to all parties.

Better environmental decisions through Joint Boards: We would likely see decisions that are better for the environment if more Joint Board hearings occurred. These hearings now involve members of the OMB and the Environmental Review Tribunal (the successor to the Environmental Assessment Board), and bring in applications under other environmental laws such as the Aggregate Resources Act, the Environmental Protection Act and/or the Ontario Water Resources Act, along with the Planning Act. The laws changed under the Harris-Eves government to reduce the opportunity for Joint Board hearings. Recently, there have been fewer than five Joint Board hearings per year compared with hundreds of OMB hearings.

Reducing the number of OMB hearings: Too many OMB hearings take place that cost too many people too much time and money. One planner who appears before the board proposes limiting OMB hearings to major issues such as official plans and official plan amendments. In most other cases, he contends, residents and others are appealing something (e.g., a zoning by-law amendment, a minor variance) that conforms to the official plan and so should not be appealable.

The number of OMB hearings could also be reduced through mandatory mediation. At present, mediation is undertaken at the discretion of the parties involved in the hearing.

Another idea is to establish a "leave to appeal" process similar to that used in the courts. A "gateway" to the OMB could be established so that only issues for which there is clear cause to question a municipal decision could proceed to a hearing. There would need to be stringent criteria for proceeding, such as a clear contradiction of provincial or official plan policies, with a presumption that the municipal decision should stand unless the would-be appellant could show that the decision-making process was seriously flawed. A committee of OMB members could carry out the gateway function. A leave to appeal process could not only produce better land use planning, but could reduce the financial drain on municipal coffers and on conservation and community groups who might otherwise have considered it necessary to be parties to a hearing. The leave to appeal idea is controversial because some argue that it may reduce citizen access to the OMB.

Get the goods on the OMB

Ontario Municipal Board
www.omb.gov.on.ca
416-326-6800 or toll-free 1-866-887-8820

New and improved, the OMB website provides much useful information about the board’s procedures and how you can get involved in a hearing. You can download any OMB decision issued after January 1, 2001, searching by keywords for the one you want. Call the OMB to obtain earlier decisions. You can also use the website to check the status of a hearing in progress.

The OMB operates a phone information service 24 hours a day, seven days a week. During office hours, a planner or planning assistant is available to provide information specific to your situation, help answer process (but not legal) questions and give procedural advice.

Bruce Krushelnicki’s A Practical Guide to the Ontario Municipal Board (343 pages, $75 plus GST), published by LexisNexis in 2003, can be ordered online at www.lexisnexis.ca. Click on “Butterworths Catalogue and Bookstore” and search by the topic “municipal law.” The book may be available at your local municipal offices or public library. Written by a former OMB member, this guide offers a far more detailed explanation of the OMB than the board’s website. In particular, see chapter 6, “Practical Conduct Before the Board.”

Ontario Nature
ontarionature.org
The Ontario Nature website contains various materials about the OMB:

• A Citizens’ Toolkit for Nature Conservation
  An indispensable package of tools for trying to avoid the OMB by getting involved in your municipality’s land-use planning even before a controversial matter comes to council for a vote.
• Review of Natural Heritage Decisions by the Ontario Municipal Board, 1996–2003, by David Berney, October 2003
  A groundbreaking study analyzing the OMB’s recent record on protecting nature.

Ontario Ministry of Municipal Affairs and Housing
Ontario Municipal Board Reform Consultation Paper, June 2004
www.planningreform.ontario.ca

Ontario Professional Planners Institute
www.ontarioplanners.on.ca
416-483-1873 or toll-free 1-800-668-1448
You may need to obtain the services of a land-use planner before going to the OMB.

For Legal Advice

Canadian Environmental Law Association
www.cela.ca
416-960-2284 or intake@cela.ca

Environmental Defence Canada
www.environmentaldefence.ca
416-323-9521 or info@environmentaldefence.ca

Sierra Legal Defence Fund
www.sierralegal.org
416-368-7533 or sldfon@sierralegal.org

Networking

Talk with other community groups that have appeared before the OMB. Look for names of groups in David Berney’s study on the Ontario Nature website and in decisions posted on the OMB website. Also, find out by word of mouth in your area.

Linda Pim is the conservation policy analyst for Ontario Nature.