Citizens and the Ontario Municipal Board

June 10th, 2010 by Paula Boutis

Last night I had the pleasure of attending the Sierra Club Peel’s annual celebration, where the Club highlighted the 5th anniversary of the creation of the Greenbelt, and efforts underway to expand the Greenbelt.  As always, planning issues around the Greenbelt, and planning more generally, were a hot button issue.

As part of the provincial government’s raft of important planning initiatives around the time the Greenbelt was introduced, the government also headed the comments and concerns of citizens  and municipalities that the battle to protect spaces and places was being lost by municipalities and their citizens at the Ontario Municipal Board.

The Planning Act was amended in several ways.  One change included a requirement that the Ontario Municipal Board “have regard to” the decisions municipalities made under the Planning Act.  The expectation was that the OMB would show some deference to those decisions when they were appealed.

A 2 to 1 decision by the Divisional Court – an appeal court – in the fall of 2009 dashed any hope that the OMB would be a more deferential body.   The court held in Minto Communities Inc. v. Ottawa:

“The legislature used language that suggests minimal deference when choosing the words ‘have regard to’, considering the many other expressions it could have used to signal the level of deference suggested by the [the municipality] in this appeal.  In my view the traditional role of the Board, and the broad powers it exercises, should not be altered radically without a more clear and specific expression of legislative intent… The words ‘have regard to’ do not by themselves suggest more than minimal deference to the decision of the Municipal Council.  However… the Board has an obligation to at least scrutinize and carefully consider the Council decision, as well as the information and material that was before Council.”

This is basically what the OMB has always done, rendering this new language completely meaningless.

And citizens remain completely disenfranchised at the OMB, as I was reminded last night by some of the comments I heard.

What should the legislature do?  If it is serious about the OMB showing deference to the decisions of municipalities, amend the Planning Act again, with stronger language, to ensure that there is a real change in practice at the OMB.

And bring back intervener funding for citizens so they can meaningfully participate in the process.  Citizens are lost at the OMB, as it is a body that is designed for expert planners, chiefly, and the lawyers, but not so much the citizens who have to live with the decisions made for their neighbourhoods.

— Paula

Filed in: Municipal/Planning Law

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