Tipping the Scales at the OMB- By Shawn Selway

Tipping The Scales  at the OMB by Shawn Selway

The fundamental imbalance and inequity of Ontario Municipal Board processes were on display in downtown Hamilton Wednesday morning. Albion Rooms A and B at the Convention Centre hosted a board pre-hearing attended by a flock of lawyers in dark suits, and a slightly larger number of Concerned Citizens in civilian dress. The matter at hand was a draft procedural order meant to lay out the schedule for hearings on the City’s Airport Employment Growth District plan – an initiative which promises renewed prosperity or accelerated decline, depending on who you believe.

To understand what occurred on Wednesday, it is necessary to know that the Board distinguishes between parties and participants in a hearing. Parties have greater responsibilities and accordingly greater privileges. Parties can bring expert witnesses to a hearing, and cross-examine the witnesses of other parties, as well as all participants. They are also entitled to participate in closed door mediation sessions, should they occur. In return for these opportunities to make their case parties are required to adhere strictly to a schedule that sets out what they must produce by when eg when they must deliver written witness statements for their experts, which they must also provide to the other parties, etc.

The onus placed on participants is much lighter, and accordingly so may be the weight given by the board to what they say.

But parties pay for their rights. Generally they engage a lawyer and pay witness fees to experts, and of course they have the costs of managing their participation: keeping abreast of paperwork and so on. Combined costs can be large, and this factor discourages many groups and individuals with an interest in the outcome from seeking full party status. Instead, they opt for the cheaper participant route.

It is not clear that this is always in the broad public interest, and it is sometimes suggested that the provision of intervener funding in some cases would ensure that, for example, provincially significant issues are adequately examined in the public forum.

Wednesday’s pre-hearing was an unusual illustration of the problem.
Three of the lawyers representing parties before Board Chair Jason Chee Hing rose to inform the Chair that, while they would be attending all sessions of an eventual hearing, they would not themselves bring any evidence – unless they felt that the arguments were diverging from a previously agreed issues list. If divergence occurred, they reserved the right to bring evidence after all. Meanwhile the City of Hamilton could do the heavy lifting for them, and pay for it out of the $300,000 which Council has allocated to the case.

In other words, these three parties wished to retain the rights of a party, without the usual obligations or expenses. Cute.

But what is still more interesting is this: the City will argue before the Board that the urban boundary must be expanded for purposes of designating lands between Rymal Road and the Airport as an industrial development Zone. If the City is successful, however, the free-riding parties will then turn around and argue that some or all of their particular bits of land within the expanded urban boundary should be made available for residential development, and not industrial at all.

There is yet another wrinkle. The 300 K in the City’s war chest is allocated under the Capital Budget, on the grounds that this money can be recovered from development charges. This of course presumes the outcome of the OMB proceedings. In the event that the City fails, their legal costs will still have to be paid. Gee, as long as we’re speculating, perhaps the law firm could consider working on a contingency basis instead?

In short, the City is carrying the ball, at its own immediate expense, for landowners who are not even in agreement with the City’s basic position. Why? Well, perhaps because the City tacitly agrees with what it emphatically denies, for fear of provincial censure – that once the urban boundary is moved outwards, industrial take-up will be so slow that residential development will impose itself as the only viable land use in the “Employment Growth District.”

In any case, observing the play from a participant’s seat at the back of the room, it occurred to me that the board, in equity, ought either to levy some portion of the City’s costs from the free riders, or alternatively, provide an equivalent subsidy to the parties who are opposing the City in this matter.

Those parties are Hamiltonians for Progressive Development, and Environment Hamilton. Neither organization is exactly flush with cash, though they have engaged a lawyer and are recruiting expert witnesses.

Lest you think that giving these outfits a subsidy to match the intervener subsidy which the city is indirectly providing to landowners who are (partially) in its corner would just be throwing good money after better, let’s consider what is at stake here.

The Board is going to be asked to deal with two broad sets of issues. First, during the period up to 2031, is the need for new employment lands great enough to warrant an expansion of the urban boundary? Second, is the City’s proposal consistent with the Province’s, and its own, long term plans and planning principles? These are big issues, and include the following, which I excerpt from a list that was circulated at the prehearing by counsel for EA and HPD

Does the proposed urban boundary expansion conform to the Growth Plan for the Greeater Golden Horseshoe and to the Provincial Policy Statement in the following ways.

“Does the urban boundary expansion optimize the use of the existing land supply and avoid over-designating new land for future development?

Does it accommodate employment growth by directing a significant portion of new growth to built-up areas?

Does it optimize the use of existing infrastructure…?

Does it reinforce the promotion of intensification and redevelopment, including redevelopment of brownfield sites? 


Does it accommodate employment growth in as a way that reduces dependence on the automobile…”

And so on.

The consequences of poor planning or mistaken forecasts in this instance will be on a very large scale. We are ill-served when issues of this magnitude are decided under an OMB process that favours the well funded proponent – in this case, the City of Hamilton – against all others. The outcome of this hearing is of provincial significance. The City is challenging the provisions of Places to Grow – or attempting to do an end run around them, some claim.

To those who fear that intervener funding in this or any case would encourage frivolous or reflexive opposition to each and every planning proposal, the response must be that an OMB appeal is just too much work, even with the benefit of paid legal and other expertise.

This is not the only case in which the City is spending money on legal manoevres for the benefit, arguably, of a very few landowners. The Ministry’s rejection of the City’s attempt to include Elfrida in the Official Plan as a place of anticipated growth is being appealed to the Board, with the City taking part alongside the developers. If what we saw unfold on Wednesday morning is repeated in that case, we will again have the City bringing evidence while the remaining lawyers hang about on the sidelines as their clients get the benefit of what is in effect a forgiveable loan against potential development.

Shawn Selway
28 June 2012