Dissolution of Ontario Municipal Board step backward, environmental lawyers say

Richard Lindgren

Lawyers Daily By Amanda Jerome

Ontario has passed new legislation that will replace the Ontario Municipal Board (OMB) with a tribunal it purports will improve the speed, fairness and affordability of land use hearings throughout the province.

While the government is extolling the benefits of the Bill 139, Building Better Communities and Conserving Watersheds Act, 2017, passed on Dec. 12, environmental lawyers are raising concerns.

“There’s one component of the bill that we [the Canadian Environmental Law Association] did support and that is the set of provisions that amend the Conservation Authorities Act to basically improve the management, structure and role of conservation authorities across the province. We thought that part of the bill was good, but the part that we objected to was the retrogressive set of reforms that basically abolish the OMB and really constrain the nature and scope of land use planning decisions that can be brought forth to the new tribunal,” said Richard Lindgren, a staff lawyer with the Canadian Environmental Law Association (CELA).

The government undertook public consultations in 2016 on how to make land using planning systems more effective. The CELA made submissions on this matter noting that while there was room for improvement, it would be foolhardy to abolish the OMB and otherwise curtail the ability of citizens to bring land use planning appeals forward, particularly when the appeals are dealing with matters of public interest, such as ground water and surface water protection.

Lindgren said after the CELA made its submission, Bill 139 was introduced and contained provisions the organization opposed. The group made further submissions on the bill, but it was passed any way, which Lindgren views as a step backward for land use planning processes.

“We’ve appeared many times in front of the Ontario Municipal Board and I think it’s erroneous for people to conclude that the board was always pro-development, or anti-citizen, or anti-environment in its decision-making,” he said, adding that the CELA has won a number of OMB appeals due to the ability to cross examine experts at OMB proceedings.

That’s a right that will no longer be available with the new tribunal, Lindgren explained.

“We anticipate a number of the [new] hearings will be written only. So when I compare that regime to what we’ve enjoyed in the past decade here in Ontario I think we’ve taken a backwards step. I think the pendulum has gone too far in the wrong direction and our clients will find it much more difficult, if not impossible, to overturn poor land use planning decisions made by municipalities,” he said.

Paul Manning, principal of Manning Environmental Law in Toronto, is of a similar opinion and sees the removal of the OMB as a loss.

“I think the problems are that it’s a much more restrictive and restricted method of appeal,” he said about the new Local Planning Appeal Tribunal, which will replace the OMB.

“The new tribunal will not have the same powers [as the OMB]. Some people will say ‘well, these things take too much time, and they hold up development unnecessarily, and they don’t conform to provincial plans and municipal plans, which they should do.’ But I have always regarded the planning process, particularly the appeal process, as a kind of crucible, a digest of the interests of individuals and local communities, companies, as well as the planning authority of the municipality as the planning principles of the provinces,” he added.

Manning said a restrictive right of appeal will limit the kinds of discussion on land use, which are material to the planning process.

“The OMB had the authority to clear the matter. In fact that’s what they were required to do — to hear the matter from the outset as though they were in the shoes of the municipality, of the planning authority making the decision. It could take everything into account afresh and have matters argued before it and make a decision accordingly. That doesn’t appear to be the case any longer. It’s [the tribunal] very strictly and narrowly limited. The plans of appeal must be founded on the basis of the provincial, municipal plans otherwise it could be thrown out,” he added.

Lindgren points out that a “glaring” omission in the bill itself is the absence of any new participant funding model that will allow concerned citizens or environmental groups to retain their own lawyers and planners, or hire geologists and other experts that are needed to participate in the land use planning process.

“If you peruse Bill 139 from stem to stern you’ll see that there really is no new bold attempt to create funding assistance for interest groups, so again it makes it extremely difficult to prevail in these types of land use planning disputes that we typically would take to the OMB for resolution,” he added.

“I think it’s a really unfortunate piece of legislation and I think it panders to the anti-OMB crowd that erroneously perceived the OMB as being anti-democratic, or anti-municipal,” Lindgren said.

Bill 139 will also revamp the Conservation Authorities Act, which guides the preservation of Ontario’s watersheds. The new legislation clarifies the responsibilities of conservation authorities and reinforces its oversight and accountability.

“Communities across Ontario benefit from the efforts of our conservation authorities. This legislation gives conservation authorities the tools and flexibility needed to address climate change, deliver exceptional services to communities, and protect people and property,” said Kathryn McGarry, the minister of Natural Resources and Forestry in a statement.

Ontario has 36 conservation authorities, which are locally run administrations that oversee the protection of natural resources, such as water.

According to government data, 90 per cent of Ontarians live in a watershed area managed by a conservation authority.

The Act will come into force on a date named by proclamation of the lieutenant governor.