Ontario Municipal Board

The Ontario Municipal Board (OMB) is an independent administrative board, operated as an adjudicative tribunal,[1] in the province of Ontario, Canada. It hears applications and appeals on municipal and planning disputes,[2] as well as other matters specified in provincial legislation. The tribunal has reported to the Ministry of the Attorney General since 2012.[3]

History

One of the oldest tribunals in the province, the OMB was established in 1906 as the Ontario Railway and Municipal Board[4] "to oversee municipalities’ accounts and to supervise the then rapidly growing rail transportation system between and within municipalities."[5] In so doing, it took over responsibility of these functions from the former Railway Committee of the Executive Council[6] and Office of the Provincial Municipal Auditor.[5][7] It was amalgamated with the Bureau of Municipal Affairs[8] and given its current name in 1932.[9]

In 2010, under the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009,[10] the OMB was designated as part of a cluster known as "Environment and Land Tribunals Ontario,"[11] which also includes the Assessment Review Board, boards of negotiation under the Expropriations Act, the Conservation Review Board and the Environmental Review Tribunal.[12]

Scope of jurisdiction

The OMB is constituted under the Ontario Municipal Board Act,[13] which confers "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."[14] Until 2009, its decisions could be appealed by petition to the Lieutenant-Governor in Council,[15] but such petitions have been abolished by the Good Government Act, 2009.[16] Its decisions are now final, subject only to appeals to the Divisional Court on a question of law with that Court's leave.[17]

While the Act declares that the Board "has all the powers of a court of record,"[18] the Judicial Committee of the Privy Council has held that it is not a superior court, but in pith and substance an administrative body.[19] Appeals to the OMB have been described as "a process requiring the OMB to exercise its public interest mandate," and "on an appeal the Board has the obligation to exercise its independent judgment."[20]

The Board has general jurisdiction in municipal matters,[21] as well as over railways and public utilities[22] (other than matters that are within the jurisdiction of the Ontario Energy Board).[23] It has been conferred further powers under the Railways Act,[24] the Municipal Act, 2001[25] the City of Toronto Act, 2006,[26] the Planning Act[27] and the Ontario Heritage Act.[28]

Procedure

Hearings

Before reaching its decision, the OMB will conduct hearings, which can be in oral, electronic or written form.[29] Where a matter to be heard is expected to be long or complex, involving many issues, parties and types of evidence, the Board will normally hold a prehearing to help organize proceedings for subsequent hearings, which will include identification of issues to be considered at such hearings.[30] The Board expects parties who place an issue on the Issue List to call a case in support of that issue.[31]

The Board may award costs against parties who have opposed successful applicants, but only when it is requested to do so.[32]

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).[33]

The OMB makes the following jurisprudence available online:[34]

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

Carswell publishes Ontario Municipal Board Reports,[35] which is available in law libraries, as well as online at Westlaw.[36] Decisions are also available online at LexisNexis.[37]

Criticism

The jurisdiction the Board can exercise is 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,[38] although thirty principal Acts were identified.[39] However, an extraordinary provision of the OMB Act allows for investigation and determination of any matter, where provision has been made for it under the letters patent of any corporation formed under Ontario law.[40][41]

Another provision of the OMB Act, allowing the Board to require or prohibit the performance of any matter under any Act or agreement, has been considered to be "an absurdly broad power and in its breadth it is unconstitutional."[42][43]

The Board has tended to subordinate both provincial and local policies to those of its own making,[44] which successive governments have effectively transformed into a policy "of overseeing municipal activities without direct provincial involvement."[44] There has been discussion as to whether it has outlived its usefulness as a planning review tribunal,[45] as "it does little that could not be done by local decision makers."[46]

On 7 October 2008, City of Toronto councillors representing the former city of North York had voted to name a lane "OMB Folly" in the area where the OMB, against the City's wishes, approved development of a condominium/townhouse complex near a low-density residential area immediately west of North York Centre.[47][48] However, Council reversed this decision on 26 August 2010.

After a controversial 2009 decision approved a community of up to 1400 homes in Manotick, Ontario, 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."[49]

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 Cllr. Josh Matlow, along with Cllr. 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.[50]

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. ↑ The Ontario Railway and Municipal Board Act, 1906, S.O. 1906, c. 31
  5. 1 2 "History of the OMB". Ontario Municipal Board. Retrieved 22 April 2009.
  6. ↑ constituted under An Act respecting Electric Railways, S.O. 1902, c. 27
  7. ↑ 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 )
  8. ↑ constituted under The Bureau of Municipal Affairs Act, S.O. 1917, c. 14
  9. ↑ The Ontario Municipal Board Act, 1932, S.O. 1932, c. 27
  10. ↑ Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sch. 5
  11. ↑ "About ELTO". Environment and Land Tribunals Ontario.
  12. ↑ Adjudicative tribunals and clusters, O. Reg. 126/10
  13. ↑ Ontario Municipal Board Act, R.S.O. 1990, c. O.28
  14. ↑ OMB Act, s. 36
  15. ↑ Ontario Municipal Board Act, R.S.O. 1990, c. O.28, s. 95
  16. ↑ Good Government Act, 2009, S.O. 2009, c. 33, Sch. 2 , s. 54
  17. ↑ OMB Act, s. 96
  18. ↑ OMB Act, s. 34
  19. ↑ 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)
  20. ↑ Ottawa (City) v Minto Communities Inc 2009 CanLII 65802 at par. 30 (13 November 2009), Divisional Court (Ontario, Canada)
  21. ↑ OMB Act, Part IV
  22. ↑ OMB Act, Part V
  23. ↑ OMB Act, s. 103
  24. ↑ The Railways Act, R.S.O. 1950, c. 331
  25. ↑ Municipal Act, 2001, S.O. 2001, c. 25
  26. ↑ City of Toronto Act, 2006, S.O. 2006, c. 11, Sch. A
  27. ↑ Planning Act, R.S.O. 1990, c. P.13
  28. ↑ Ontario Heritage Act, R.S.O. 1990, c. O.18
  29. ↑ "Information Sheet 4: Here's what you need to know about Hearings" (PDF). OMB. 2012. ISBN 978-1-4435-3451-2.
  30. ↑ "Information Sheet 7: Here's what you need to know about Prehearings" (PDF). OMB. 2008.
  31. ↑ "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.
  32. ↑ "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.
  33. ↑ archives.gov.on.ca: "A Guide to Researching Records of Ontario Municipal Board Hearings" Feb 2013
  34. ↑ "E-Decisions". OMB.
  35. ↑ "Ontario Municipal Board Reports". Carswell. ISSN 0318-7527. Retrieved June 2014. Check date values in: |access-date= (help)
  36. ↑ "Westlaw Next Canada: Case Law" (PDF). Thomson Reuters.
  37. ↑ "Quicklaw Source Directory: Administrative Board and Tribunal Decisions". LexisNexis.
  38. ↑ McRuer 1971, p. 2015.
  39. ↑ McRuer 1971, pp. 2015, 2045–2067.
  40. ↑ McRuer 1971, pp. 2020–2021.
  41. ↑ still in effect under the OMB Act, s. 48
  42. ↑ McRuer 1971, pp. 2024–2025.
  43. ↑ still in effect under the OMB Act, s. 39
  44. 1 2 Chipman 2002, p. 193.
  45. ↑ Chipman 2002, p. 202.
  46. ↑ Chipman 2002, p. 203.
  47. ↑ Moloney, Paul (8 October 2008). "It's street revenge on developer". Toronto Star. Retrieved 22 April 2009.
  48. ↑ "Councillors Try To Name Street OMB Folly As Form Of Protest". CityNews.ca. 8 October 2008. Retrieved 22 April 2009.
  49. ↑ Adam, Mohammed (15 April 2009). "Watson calls for further changes at OMB". Ottawa Citizen. Canwest. Retrieved 2009-04-21.
  50. ↑ "Toronto asks to opt out of Ontario Municipal Board". Toronto Star. 7 February 2012. Retrieved 7 June 2012.

Further reading

External links

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