- OMB Reform - Here We Go Again
- December 13, 2013
- Law Firm: Dentons Canada LLP - Toronto Office
The Ontario Municipal Board (“OMB”) is one of the oldest administrative tribunals in the Province of Ontario. Originally, it was established in 1897 as the Ontario Railway and Municipal Board, to oversee municipalities’ accounts and to supervise the then-growing rail transportation system between and within various municipalities. It became the OMB in 1932, and since then the jurisdiction of the Board has grown by leaps and bounds, including becoming, essentially, the planning court to deal with appeals concerning a wide variety of planning instruments (including official plans and zoning bylaws) and municipal council decisions with respect to development applications. While other provincial jurisdictions, including Alberta, Nova Scotia and New Brunswick, have third party tribunals which are empowered to make decisions with respect to certain development approvals, none of these tribunals have the far reaching scope that the OMB has with respect to land development matters that is within its purview.
The OMB has been much maligned in the media, especially over the past 10 or 15 years, as there have been a number of controversial decisions which have overturned decisions of municipal councils which many feel should have been upheld since councillors are the elected officials. It has been suggested by many that the OMB is undemocratic and should not have the ability to overturn decisions of elected officials since Board Members are only appointed by the provincial government and not elected officials themselves.
On a number of occasions the Provincial Government has looked at the role of the OMB in land use planning decisions and on a few occasions significant amendments to the Planning Act and other pertinent legislation were made in order to modify the Board’s jurisdiction or to provide guidance on how the OMB should be rendering its decision. For instance, in 2006 the Province took away the right to appeal official plan amendment and/or rezoning applications to the OMB that had the effect of converting employment lands to non-employment uses, subject to the municipality having official plan policies in place dealing with the removal of land from areas of employment. The Planning Act was also amended to ensure that when the OMB makes a decision regarding a planning matter that “it shall have regard to” the decision of municipal council regarding that particular matter. Also in 2006, the Province enacted the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A (including s. 111) and made corresponding amendments to the Municipal Act, 2001, S.O. 2001, c. 25 which allowed municipalities to regulate the demolition or conversion of residential rental housing that contained six or more dwelling units.
The Government of Ontario has announced that it will be, once again, reviewing the land use planning and appeal system in Ontario, including what can be appealed to the OMB. Other aspects of this review include a review of the Development Charges Act, 19971, provisions in the Planning Act2 dealing with parkland dedication, and also the Section 37 provisions of the Planning Act which allow a municipality to secure certain facilities and benefits in exchange for increases in the height and density of development otherwise permitted by the zoning bylaw. As part of this review, however, the Ministry of Municipal Affairs and Housing has clearly stated that the following matters will not be discussed or considered:
Eliminating or changing the OMB’s operation, practices and procedures;
Removing or restricting the Provincial government’s approval role and ability to intervene in matters;
Removing municipal flexibility in addressing local priorities;
Changing the “growth pays for growth” principal of development charges;
Education development charges and the development charges appeal system; and,
Other fees and taxes in matters involving other legislation, unless housekeeping changes are needed.
As part of this review, the Ministry has set up a number of workshops throughout the Province of Ontario which are currently taking place until the end of 2013. Further, the Ministry will be accepting written submissions and comments, on or before January 10th, 2014.
Often, the rage against the OMB is fueled by the fact that a decision of the Board goes against the municipality and the wishes of certain neighbourhood groups opposing a development application; however, in those which go against a municipality, a compelling case must have been made on behalf of the appellant/proponent in support of the development.
In Ontario, there is a clear regime of planning rules set out in the Planning Act, which are meant to guide development of lands. These tests include:
Conformity with Regional and local Official Plans;
Consistency with Provincial policy statements; and,
Conformity with Provincial plans.
Often, the reason a developer is successful on appeals to the OMB is that they look at these various planning instruments and assess, with the assistance of their lawyers and consultants, whether or not the Planning Act’s tests can be met by the development proposal.
From my experience, the OMB process is fair, relatively inexpensive and accessible to anyone who has an interest in a particular development application/appeal, including those opposing a particular development application/appeal. The OMB plays a vital role in the land use planning process in Ontario to ensure all development applications are judged by the planning framework and tests set out in the Planning Act.
One of the ways that the OMB process could be improved is to ensure that the Board has the necessary resources to hire and retain highly-competent Board Members who can be entrusted to make very important decisions on highly-complicated appeals with respect to various municipal planning instruments and development applications. In my opinion, further restricting appeal rights to the OMB is not in the interests of good planning in Ontario as it could promote the interests of NIMBYism and curtail appropriate developments from receiving the required development approvals.
1 S.O. 1997, c. 27, as amended
2 R.S.O. 1990, c. P.13, as amended