Decisive Action Needed on OMB Reform

The debate over the viability of the Ontario Municipal Board (OMB) continues with some cities arguing the board doesn’t take the desires of its residents into account when making rulings and others saying the OMB favours wealthy builders, who can afford to trot out legal experts to ensure a better chance of rulings falling in their favour.

On requests for zoning matters brought before it, the OMB often overrules the municipal government’s decisions and that doesn’t sit well with residents most affected by those decisions. That’s understandable, but that’s also the way a democratic society works.

The OMB has been around a long time — since 1897, when it was formed as the Ontario Railway and Municipal Board to oversee the then rapidly-growing rail system between municipalities. Today, it is one of the most powerful agencies in the provincial government, retaining some of the original powers it was handed and acquiring a lot of new ones over its century of ruling over planning, financial and land matters concerning Ontario municipalities. Most of its work today centres on land-use planning issues, where it rules on differences between builders and residents.

It has the final say on these rulings, meaning there is no higher court at which an appeal will be heard. The few decisions that have been taken to the Ontario Divisional Court usually relate to questions of law, rather than questions of the rulings themselves.

However in 2013, the Region of Waterloo decided to take the OMB to the Divisional Court over the board’s ruling to allow development on agricultural land, contrary to the region’s growth plan in accordance with the province’s Places to Grow Act.

Rob Horne, Commissioner of Planning, Housing and Community Services for the Region of Waterloo said of the decision: “The OMB decision could have far-reaching implications to the community’s well defined vision in accommodating growth and change.”

Some have said the OMB yields too much power and there have been several attempts to reform or even dissolve the board in favour of a more independent agency that would work within the jurisdictions of other government agencies.

In 2012, on the urging of Councillors Josh Matlow and Kristyn Wong-Tam (and backed by a private bill introduced by Trinity-Spadina MPP Rosario Marchese), Toronto city council voted nearly unanimously to request the provincial government to exclude Toronto from OMB jurisdiction. The Municipal Affairs and Housing Minister at the time was current Premier Kathleen Wynne. Council also suggested allowing only board members who lived in Toronto to hear the cases.

The criticism at the time, as it continues to this day, is that the OMB favours those individuals or companies with the deep pockets for lawyers, financial planners and other resources to argue their cases in front of the board.

“Developers simply have a better chance at the OMB because they have the financial resources, the ability to get planners and lawyers, anything they need to be able to argue their case,” Matlow told The Star at the time.

It’s not a criticism leveled solely at the OMB. A 2003 report by David Redmond and Associates for the Canadian Home Builders’ Association showed that other provinces (specifically Manitoba and Alberta) with similar boards face similar criticism.

The problem is that there is simply no suitable alternative to the OMB. The idea of a “panel” of unbiased individuals to hear disputes in a less formal way and then act in a manner according to the different judicial offices would likely come to similar controversial decisions. And stacking a jury with people only from the affected zone would end up with biased decisions.

Neither is fair to both parties — developers and residents — and would likely result in escalation of costs and decisions dragging on for months and years.

For its part, the re-elected Liberal government in Ontario has pledged to review and “fix” the OMB but that’s going to take some time, which isn’t always “fast enough” for some of its critics.

What do you think would even the playing field?