Ontario Municipal Board

The Ontario Municipal Board (OMB) was an independent administrative board, operated as an adjudicative tribunal,[1] in the province of Ontario, Canada. It heard applications and appeals on municipal and planning disputes,[2] as well as other matters specified in provincial legislation. The tribunal reported to the Ministry of the Attorney General from 2012 until its shuttering.[3] The Board had been criticized for its broad powers and authority to override the Planning Act decisions of municipal councils.[4]

The Ontario Municipal Board was replaced by the Local Planning Appeal Tribunal on 3 April 2018,[5] which is to have more limited powers and a reduced scope.[6]

History

The OMB was established in 1906 as the Ontario Railway and Municipal Board[7] "to oversee municipalities’ accounts and to supervise the then rapidly growing rail transportation system between and within municipalities."[8] In so doing, it took over responsibility of these functions from the former Railway Committee of the Executive Council[9] and Office of the Provincial Municipal Auditor.[8][10] It was amalgamated with the Bureau of Municipal Affairs[11] and given its current name in 1932.[12]

In 2010, under the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009,[13] the OMB was designated as part of a cluster known as "Environment and Land Tribunals Ontario",[14] which also includes the Assessment Review Board, boards of negotiation under the Expropriations Act, the Conservation Review Board and the Environmental Review Tribunal.[15]

Scope of jurisdiction

The OMB was constituted under the Ontario Municipal Board Act,[16] which conferred "exclusive jurisdiction in all cases and in respect of all matters in which jurisdiction is conferred on it by this Act or by any other general or special Act."[17] Until 2009, its decisions could be appealed by petition to the Lieutenant-Governor in Council,[18] but such petitions were abolished by the Good Government Act, 2009,[19] after which decisions of the OMB were final, subject only to appeals to the Divisional Court on a question of law with that Court's leave.[20]

While the Act declared that the Board "has all the powers of a court of record",[21] in 1938 the Judicial Committee of the Privy Council held that it is not a superior court, but in pith and substance an administrative body.[22] Appeals to the OMB were described as "a process requiring the OMB to exercise its public interest mandate", and "on an appeal the Board had the obligation to exercise its independent judgment".[23]

The Board had general jurisdiction in municipal matters,[24] as well as over provincially-regulated railways and public utilities[25] (other than matters that are within the jurisdiction of the Ontario Energy Board).[26] It had been conferred further powers under the Railways Act,[27] the Municipal Act, 2001[28] the City of Toronto Act, 2006,[29] the Planning Act[30] and the Ontario Heritage Act.[31]

Procedure

Hearings

Before reaching a decision, the OMB conducted hearings, which were in oral, electronic or written form.[32] Where a matter to be heard was expected to be long or complex, involving many issues, parties and types of evidence, the Board normally held a prehearing to help organize proceedings for subsequent hearings, which included identification of issues to be considered at such hearings.[33] The Board expected parties who placed an issue on the Issue List to call a case in support of that issue.[34]

The Board could award costs against parties who opposed successful applicants, but only when it was requested to do so.[35]

Decisions

The Archives of Ontario holds some past OMB decisions, but the collection is limited to the years 1906–1991 (but certain records in that period have been previously destroyed).[36]

The OMB makes the following jurisprudence available online:[37]

  • Decisions from 2001 to the present.
  • Orders from January 21, 2013 to the present.

Carswell publishes Ontario Municipal Board Reports,[38] which is available in law libraries, as well as online at Westlaw.[39] Decisions are also available online at LexisNexis.[40]

Criticism

The jurisdiction the Board could exercise was extremely broad in scope, and a Royal Commission inquiry headed by James McRuer reported in 1971 that it was impossible to catalogue all the powers that the Board possessed at that time,[41] although thirty principal Acts were identified.[42] However, an extraordinary provision of the OMB Act allowed for investigation and determination of any matter, where provision was made for it under the letters patent of any corporation formed under Ontario law.[43][44]

Another provision of the OMB Act, allowing the Board to require or prohibit the performance of any matter under any Act or agreement, was considered to be "an absurdly broad power and in its breadth it is unconstitutional".[45][46]

The Board tended to subordinate both provincial and local policies to those of its own making,[47] which successive governments effectively transformed into a policy "of overseeing municipal activities without direct provincial involvement".[47] There was discussion as to whether it had outlived its usefulness as a planning review tribunal,[48] as "it does little that could not be done by local decision makers".[49]

On 7 October 2008, City of Toronto councillors representing the former city of North York voted to name a lane "OMB Folly" in the area where the OMB, against the city's wishes, approved development of a condominium and townhouse complex near a low-density residential area immediately west of North York Centre.[50][51] However, Council reversed this decision on 26 August 2010.

After a controversial 2009 decision approved a community of up to 1400 homes in the Manotick neighbourhood of Ottawa, Minister of Municipal Affairs Jim Watson was quoted in the local press as stating: "Has the OMB been perfect? No. Can it improve? Yes, I think it can and I am quite prepared to work with the attorney general to try and ensure that the OMB is more reflective of community values [...] I've had a couple of discussions with the attorney general going back a month and we both agree we are going to take a thorough look at the OMB and see how we can further improve it based on changes we made a couple of years ago. We want to see if they've done what we hoped they'd do to bring greater balance to OMB decision-making."[52]

On February 6, 2012 Toronto City Council asked the province to free the city from the Ontario Municipal Board’s jurisdiction. Council endorsed the proposal in a 34-5 vote. Spearheaded by councillor Josh Matlow, along with councillor Kristyn Wong-Tam. Matlow is quoted in the Toronto Star newspaper: "We’ve heard time and time again from our residents that there’s an inequitable playing field...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". This proposal should open the door for discussion of the efficiency and justice of the unelected board that controls the majority of Ontario developments.[53]

References
  1. Meyfarth O’Hara 2008.
  2. Sewell 2009, pp. 18–20.
  3. "Citizens' Guide 6 - Ontario Municipal Board". Citizens' Guides to Land-use Planning. Ontario Ministry of Municipal Affairs and Housing. Retrieved 22 April 2009.
  4. Pagliaro, Jennifer; Osorio, Carlos (17 February 2017). "Contested Development". Toronto Star. Retrieved 18 May 2017.
  5. "The Ontario Municipal Board will soon be no more. Here's what that means for you". CBC News. 2 April 2018. Retrieved 6 April 2018.
  6. https://news.ontario.ca/mma/en/2017/12/statement-on-transition-from-the-ontario-municipal-board-to-the-local-planning-appeal-tribunal.html
  7. The Ontario Railway and Municipal Board Act, 1906, S.O. 1906, c. 31
  8. "History of the OMB". Ontario Municipal Board. Retrieved 22 April 2009.
  9. constituted under An Act respecting Electric Railways, S.O. 1902, c. 27
  10. constituted under An Act respecting Provincial Municipal Auditors, S.O. 1896, c. 54 (repealed by The Statute Law Amendment Act, 1913, S.O. 1913, c. 18, s. 49 )
  11. constituted under The Bureau of Municipal Affairs Act, S.O. 1917, c. 14
  12. The Ontario Municipal Board Act, 1932, S.O. 1932, c. 27
  13. Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sch. 5
  14. "About ELTO". Environment and Land Tribunals Ontario.
  15. Adjudicative tribunals and clusters, O. Reg. 126/10
  16. Ontario Municipal Board Act, R.S.O. 1990, c. O.28
  17. OMB Act, s. 36
  18. Ontario Municipal Board Act, R.S.O. 1990, c. O.28, s. 95
  19. Good Government Act, 2009, S.O. 2009, c. 33, Sch. 2 , s. 54
  20. OMB Act, s. 96
  21. OMB Act, s. 34
  22. The Corporation of the City of Toronto v The Corporation of the Township of York [1938] JCPC 5, [1938] AC 415 (24 January 1938) (Ontario)
  23. Ottawa (City) v Minto Communities Inc, 2009 CanLII 65802 at par. 30 (13 November 2009), Divisional Court (Ontario, Canada)
  24. OMB Act, Part IV
  25. OMB Act, Part V
  26. OMB Act, s. 103
  27. The Railways Act, R.S.O. 1950, c. 331
  28. Municipal Act, 2001, S.O. 2001, c. 25
  29. City of Toronto Act, 2006, S.O. 2006, c. 11, Sch. A
  30. Planning Act, R.S.O. 1990, c. P.13
  31. Ontario Heritage Act, R.S.O. 1990, c. O.18
  32. Information Sheet 4: Here's what you need to know about Hearings (PDF). OMB. 2012. ISBN 978-1-4435-3451-2.
  33. "Information Sheet 7: Here's what you need to know about Prehearings" (PDF). OMB. 2008.
  34. "IN THE MATTER of Motions regarding the proposed Issue List, brought by the City of Waterloo and by Spring Village Inc. (Case PL080463)" (PDF). OMB. July 13, 2009.
  35. "IN THE MATTER OF subsection 97(1) of the Ontario Municipal Board Act, R.S.O. 1990, c.O.28, as amended, with respect to applications for costs relating to a series of approvals obtained by Kimvar Enterprises Inc. (Case PL050290)" (PDF). OMB. January 30, 2009.
  36. archives.gov.on.ca: "A Guide to Researching Records of Ontario Municipal Board Hearings" Feb 2013
  37. "E-Decisions". OMB.
  38. "Ontario Municipal Board Reports". Ontario Municipal Board Reports. Second Series. Carswell. ISSN 0318-7527. Retrieved June 2014. Check date values in: |access-date= (help)
  39. "Westlaw Next Canada: Case Law" (PDF). Thomson Reuters.
  40. "Quicklaw Source Directory: Administrative Board and Tribunal Decisions". LexisNexis.
  41. McRuer 1971, p. 2015.
  42. McRuer 1971, pp. 2015, 2045–2067.
  43. McRuer 1971, pp. 2020–2021.
  44. still in effect under the OMB Act, s. 48
  45. McRuer 1971, pp. 2024–2025.
  46. still in effect under the OMB Act, s. 39
  47. Chipman 2002, p. 193.
  48. Chipman 2002, p. 202.
  49. Chipman 2002, p. 203.
  50. Moloney, Paul (8 October 2008). "It's street revenge on developer". Toronto Star. Retrieved 22 April 2009.
  51. "Councillors Try To Name Street OMB Folly As Form Of Protest". CityNews.ca. 8 October 2008. Retrieved 22 April 2009.
  52. Adam, Mohammed (15 April 2009). "Watson calls for further changes at OMB". Ottawa Citizen. Canwest. Retrieved 2009-04-21.
  53. "Toronto asks to opt out of Ontario Municipal Board". Toronto Star. 7 February 2012. Retrieved 7 June 2012.

Further reading
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