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HomeMy WebLinkAboutPSD-138-05 - Report II 6 Q!Kpn REPORT PLANNING SERVICES Meeting: COUNCIL Date: Monday, December 12, 2005 Report #: PSD-138-05 File #: PLN 1.6.8 By-law #: C-6 b 7- lJ-S Subject: GTA TASK FORCE ON OMB REFORM RECOMMENDATIONS: It is respectfully recommended to Council adopt the following Resolution: 1. WHEREAS the Ontario Municipal Board was created to resolve municipal land use issues at a time when municipal governments were small and had limited planning expertise; AND WHEREAS the role and mandate of the Ontario Municipal Board have not been significantly altered in response to increased municipal planning skills or expanded municipal responsibilities for land use planning responsibilities for land use planning under the Planning Act; AND WHEREAS the Ontario Municipal Board has broad planning powers and can make decisions in the absence of a full municipal review of a planning application and can overturn local planning decisions; AND WHEREAS Ontario Municipalities invest significant resources in staff time, legal and other associated costs in establishing and implementing local planning policy; AND WHEREAS there is growing concern from municipalities and citizens that the decisions of the Ontario Municipal Board are eroding local planning authority; AND WHEREAS there have been numerous Council Resolutions, municipal reports and reports from planning professionals and academics advocating reform of the Ontario Municipal Board; AND WHEREAS the GTA Task Force on OMB Reform, an informed group of municipal representatives and staff, after study and consultation, made practical recommendations for improvements to the planning appeal process; AND WHEREAS the Ontario Government has indicated their intention to introduce legislation enacting significant reforms to the OMB and the planning appeal process in the Fall 2005 session of the Legislature; NOW THEREFORE BE IT RESOLVED THAT the Council of the Municipality of Clarington generally endorses the recommendations of the Report of the GTA Task Force on OMB Reform dated March 7, 2003 with the modifications with respect to Improvement Area 4 identified in Report PSD-098-03; THAT the Government of Ontario clarify by legislation the adverse impact of the Clergy Properties decision of the OMB as outlined in Report PSD-106-04; THAT the Government of Ontario take appropriate steps to ensure public confidence in the OMB as an appellate tribunal as outlined in Report PSD-1 06-04; THAT the Government of Ontario take all steps possible to limit the length and expense of hearings; AND FURTHER BE IT RESOLVED THAT this resolution be circulated to the Attorney General, the Minister of Municipal Affairs and Housing, local MPPs and the Chair of the GTA Task Force on OMB Reform Submitted by: Reviewed by()~3A Franklin Wu, Chief Administrative Officer avi . Crome, M.C.I.P., R.P.P. Director of Planning Services DJC/df 6 December 2005 CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T (905)623-3379 F (905)623-0830 REPORT NO.: PSD-138-05 PAGE 3 1 . On October 24, 2005, Council considered and referred correspondence from Roger Anderson, Chair, the Region of Durham on OMB Reform to the Director of Planning Services for a report. The correspondence requested that the Municipality endorse a resolution to support the recommendations of the GTA Task Force on OMB Reform. The resolution is to be forwarded to the Minister of Municipal Affairs and Housing and the Attorney General. 2. The Municipality previously commented on OMB Reform through Report PSD-106-04, comments on the Consultation Discussion Paper #3. The Report is attached. 3. The Municipality generally endorsed the direction of the recommendations of the GTA Task Force, specifically: . That the OMB should act as a true appeal body that would only conduct hearings "de novo" after a "leave to appeal" mechanism has been successfully tested to show that no reasonable Council, applying sound principles and acting in good faith, could have made the same decision. 4. The Municipality made several other recommendations: . That the Clergy Properties Ltd. decision of the OMB should be reversed by legislation so that all relevant evidence available at the date of the hearing must be admitted. . Public confidence in the OMB must be ensured by the appearance and ability to be independent through the following: ~ The appointment and reappointment procedures of the Board members should be approved by, among other things, requiring six year terms with automatic reappointment unless performance is below what is required.; ~ Reasonable compensation must be paid to members; ~ All initial appointments should be probationary for 6 months; and ~ Discipline procedures for members not performing satisfactorily. . Case management for the OMB must be improved by requiring, among other things, that the Solicitor confirming that the case is ripe for a hearing, and that the Board is not used as a negotiating tool. 5. In addition to the above, staff are of the view that hearings are too long broadly defined J and complex leading to tremendous expense without adding commensu~ate value to the planning process. It is further recommended the Government continue to find ways to streamline the hearing process, including limiting the length of hearings. 6. Accordingly, the model resolution forwarded by Regional Chair Anderson has been modified to reflect the above comments. REPORT NO.: PSD-138-05 PAGE 4 Attachments: Attachment 1 - PSD-098-03 Attachment 2 - PSD-106-04 Attachment 1 To Report PSD-138-05 Q!K-i!Jgtnn REPORT PLANNING SERVICES Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: Monday, September 8, 2003 Report #: PSD-098 -03 File #: PLN 1.6.8 By-law #: Subject: GTATASKFORCEONOMBREFORM RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council that the following resolution be adopted: WHEREAS the Ontario Municipal Board was created to resolve municipal land use issues at a time when municipal governments were small and had limited planning expertise; AND WHEREAS the role and mandate of the Ontario Municipal Board have not been significantly altered in response to increased municipal planning skills or expanding municipal responsibilities for land use planning under the Planning Act; AND WHEREAS the Ontario Municipal Board has broad planning powers and can make decision in the absence of a full municipal review of a planning application and can overturn local planning decisions; AND WHEREAS Ontario Municipalities invest significant resources in staff time, legal and other associated costs in establishing and implementing local planning policy; AND WHEREAS there is growing concern from municipalities and citizens that the decisions of the Ontario Municipal Board are eroding local planning authority; AND WHEREAS there have been numerous Council Resolutions, municipal reports and reports from planning professionals and academics advocating reform to the Ontario Municipal Board; AND WHEREAS the GTA Task Force on OMB Reform, an informed group of municipal elected representatives and staff, after study and consultation, has made practical recommendations for improvements to the planning appeal process; NOW THEREFORE BE IT RESOLVED THAT the Council of the Municipality of Clarington generally endorses the Report of the GTA Task Force on OMS Reform dated March 7, 2003 with the modifications with respect to Improvement Areas 4 identified in Report PSD-098-03; AND FURTHER BE IT RESOLVED THAT this resolution and a copy of this Report be circulated to the Chair of the GT A Task Force on OMB Reform, the Attorney General, the Minister of Municipal Affairs and Housing, and the provincial party leaders. Original signed by D.J. Crome Original signed by D. Hefferon Submitted by: Submitted by: David J. Crome, MCIP, R.P.P. Director of Planning Services Dennis Hefferon Solicitor Original signed by F. Wu Reviewed by: Franklin Wu, Chief Administrative Officer IL *DJC*DH*sh August5,2003 CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T (905)623-3379 F (905)623-0830 REPORT NO.: PSD-098-03 PAGE 3 1.0 BACKGROUND 1.1 On March 10, 2003, the Clerk of the Municipality of Clarington received the Report of the GTA Task Force on OMB Reform. The GTA Task Force requested that the recommendations included in the Report be endorsed by Council (Attachment 1). Council received the request on March 1 ih and forwarded it on to Planning Services for review and comment. The Task Force has forwarded the same request to all of the municipalities within the Greater Toronto Area. Municipal endorsed recommendations will be submitted to the Minister of Municipal Affairs and Housing and the Attorney General with the request that they be implemented by the Government of Ontario. The Task Force Report contains a background history on the formation and function of the OMB. It indicates the reasoning behind the establishment of the Task Force and explains the consultation process and the research that was conducted in order to make the conclusions and recommendations contained in the Report. Several key issues were identified during the review. These are as follows: . The role and jurisdiction of the OMB . Procedural complaints . Barriers to public participation . Cost of municipal/agency participation . Credibility/impartiality of the OMB . Strength of the planning framework . Value added by the OMB process Two principles form the basis for the recommendations made by the Task Force. These are that: . planning decisions of democratically elected Municipal Councils should not be replaced by the decisions of a Provincially appointed body unless there is demonstrable evidence of error or impropriety on the part of Council; and . property rights are important and aggrieved parties should be entitled to some relief and remedy when a Municipal Council acts improperly, arbitrarily or outside of its jurisdiction. 2.0 TASK FORCE RECOMMENDATIONS 2.1 The Task Force rejected the option of advocating the abolition of the OMS since it was of the opinion that if the OMB was abolished, there would not be adequate provision for protecting the rights and providing remedies for aggrieved parties. However, the Task Force recommended four specific areas for improvement: . update the role of the Ontario Municipal Board; REPORT NO.: PSD-098-03 PAGE 4 . enable timely municipal decisions based on complete information; . support citizen participation through intervenor funding; and . promote an independent and fair tribunal. 2.1.1 Improvement Area 1: Update the Role of the OMB Since the OMB was established, municipal responsibilities have grown and expanded. Provincial planning legislation and policy have also matured. However, the role and mandate of the OMB has not adapted to these changes. Currently the OMB acts as a planning decision maker in substitution for planning decisions of municipal councils. The OMB does not provide a true appeal or review mechanism as a last resort for dealing with fairly local decisions. It conducts de novo hearings allowing "a new presentation of the issues" which the Council mayor may not have had the opportunity to consider when Council made its decision on the matter. Since the OMB has the power to make any decision the Council could have made, and the OMB's decision may be quite different from the decision of Council reflecting either or both of different information presented to the OMB and different planning values being adopted by the Board, it does not function as a review or true appeal agency. In this regard, the Task Force recommended that the OMB process should be a review or true appeal of municipal planning decisions and not an automatic hearing de novo. The Task Force recommend that a two stage process be adopted. Stage one would be to determine if a leave to appeal should be granted. The OMB would review the planning process and the complaint and determine whether council has acted unreasonably. If the OMB determines that Council has acted unreasonably, leave to appeal would be granted and the appeal would proceed to stage two, which would be a de novo hearing before the Board. In determining whether leave to appeal should be granted, very importantly the Task Force suggested that the OMB apply a test such as the following: "That no reasonable Council, applying sound principles and acting in good faith, could have made the same decision or have failed to make a decision." If applied by the OMB, this test would go a long way to remedy the present situation in which the OMB can substitute its decision for that of Council reflecting the OMB member's planning values on matters that essentially are of local policy. In a democratic society these decisions should be made by elected and not by appointed bodies. Staff concur with this recommendation. Staff note that when the OMB automatically conducts a de novo hearing the significant amount of time, REPORT NO.: PSD-098-03 PAGE 5 expertise, and expense that has been invested in the municipal decision making process may be wasted. However, should the OMB determine on application of the above suggested test that a Council has acted unreasonably, then the entire application should be reviewed by the Board from the beginning in order that the correct decision can be made. Only in this situation is a hearing de novo by the OMB justified. 2.1.2 Improvement Area 2: Enable Timely Municipal Decisions Based on Complete Information Currently, an applicant for a planning decision can appeal an application to the OMB if Council has not made a decision within 90 days of the complete application being filed. The Planning Act requires that an application must be "complete" so that Council can have the opportunity to make an informed decision. However, under the present Planning Act, an application may be judged to be "complete" whether or not all information and studies that have been required by a municipality have been submitted by the applicant. Whether or not the supporting documentation that Council considers necessary to make an informed planning decision has been provided, when the 90 day period expires, the applicant has the right to appeal to the OMB. Both the shortness of the 90 day appeal period and the lack of definition of a "complete application" have serious consequences to municipalities and are inconsistent with responsible, informed decision-making by Councils on planning applications. The Task Force recommended the following changes to the Planning Act: . a definition of a "complete application" be provided which will include information and documentation required by a municipality to properly process the application and make an informed decision . municipalities be given the right to reject an incomplete application . preconsultation be mandated between municipalities and an applicant on all applications for Official Plan amendment and municipalities be required to confirm requirements in writing within a specific timeframe after the preconsultation . any dispute in regards to the information required could be brought to the Board or arbitrated at any time . allow 150 days from receipt of a "complete application" for Council's decision before an applicant can request the OMB to grant leave to appeal The Task Force also recommended that the OMB be given the jurisdiction to stay any appeal process including a request for leave to appeal if it determines that the municipality has not been provided information required to make a decision or has not had sufficient time to review all submissions related to an application. Staff would concur with these recommendations. REPORT NO.: PSD-098-03 PAGE 6 Defining what constitutes a "complete application" and giving municipalities the right of rejection of incomplete applications is necessary to ensure that the municipalities have the opportunity to make informed decisions on the merits of an application before the matter is taken out of their hands by an appeal to the OMB. Preconsultation on Official Plan amendments would give applicants clear direction on what documentation is required in order for the application to be properly reviewed. Allowing 150 days for the decision making process to occur will provide Council with a more reasonable timeframe to consider an application. Ninety days is often inadequate for a municipality to give proper consideration to complex planning issues while respecting both the rights of applicants and of residents who may be impacted by the proposal. Also, presently the 90 day appeal period allows applicants who choose to do so to coerce favourable decisions from municipalities by appealing to the OMB during negotiations and thus threaten the municipalities with the costs of an OMB hearing if the appeal is pursued. This is simply not fair to the municipalities or the public they represent. 2.1.3 Improvement Area 3: Support Citizen Participation Through Intervenor Funding This section of the Report deals with the difficulties faced by citizens or citizen groups in participating in an OMB hearing. Participation is noted as expensive, time consuming and legally complex. These considerations act as barriers to citizen participation in the OMB process. Also, the effective presentation and defence of a public interest requires legal representation and expert evidence. The Task Force recommended that a program be established to fund citizen group participation in de novo hearings provided that the group: . is incorporated or appropriately organized to participate in a hearing . has participated in the local planning process . is able to raise funds to contribute to the appeal process . is appealing a matter of broad public or provincial interest The Task Force suggested that the province allocate an annual amount of funding to assist citizen groups, that a cap be set on the amount available to a single group, and that there be specifications on how the money is to be used. It also suggested that the funding be "possibly supplemented with a small surcharge on development applications". The recommendation for intervenor funding in very limited circumstances is premised on the Task Force's recommendations to strengthen the municipalities' role in the planning process being adopted by the Government. If this is REPORT NO.: PSD-098-03 PAGE 7 assumed, the Task Force believed that the best way to support public participation in planning matters is to make full use of the municipal planning process. Staff would concur with these recommendations on the assumption that the recommendations of the Task Force to strengthen the role of municipalities in the planning process are adopted by the Government. 2.1.4 Improvement Area 4: Promote an Independent and Fair Tribunal In its review of the OMB, the Task Force stated that "there is definitely a public perception the Board and the appeal process, as currently structured, favour developers". Citing that there is no statistical support for this perception, the Task Force made the following recommendations to reinforce the impartiality and fairness of the OMB: . the term of appointment for members be increased from 3 years to 6 years; . a job description which outlines the specific qualification and expertise of OMB members be developed and used in the selection process; . an open process be adopted for soliciting qualified applicants; . a non-partisan multi-stakeholder screening committee be established to interview and recommend to Cabinet candidates for appointment or reappointment; and . a more open performance evaluation process for board members be implemented. Staff would concur with these recommendations with the following modifications: Currently, OMB members are appointed by the Lieutenant Governor in Council by Order in Council for terms of 3 years. The short term of appointments is counter productive to the promotion of independent decision making. Essentially, the appointments are in the discretion of the Provincial cabinet which does not publish its selection criteria. Similarly, the criteria employed by the Provincial cabinet in determining whether a person should be reappointed for a further term of 3 years on the expiry of his or her current term are not published. Reappointments are in the discretion of the cabinet. The OMB is a Provincial agency mandated to elaborate and implement Provincial policy after conducting a judicial style of hearing under provincial legislation including the Planning Act. It is appropriate that the Government of Ontario which is accountable to the public, continue to retain discretionary authority to appoint OMB members. An advisory committee as recommended by the Task Force to screen the qualifications of candidates and to make appropriate, confidential recommendations to the provincial Cabinet could be useful in respect of initial REPORT NO.: PSD-098-03 PAGE 8 appointments to the OMB. However, since the recommended advisory committee would comprise "stakeholders", the committee should not be involved in performance reviews of members of the board or in making recommendations as to whether particular members should or should not be reappointed. To do otherwise, would carry the serious risk of public perception that the independence of Board members in performing their responsibilities could be undermined by stakeholders. To ensure that the independence of Board members nearing the end of their term is not perceived by the public to be undermined in any way, the Government should adopt the policy of automatic reappointment unless the member's performance evaluation falls substantially below what is required by the performance criteria. A performance evaluation system is discussed below. It is difficult to know what the Task Force had in mind in recommending that an "open process" be adopted for soliciting qualified applicants. General newspaper advertisements could be useful in attracting applications from some potential candidates who might not otherwise apply. However, if the Task Force had in mind a process through which there would be an open, public review of the candidacy of individuals, that would potentially dissuade many otherwise suitable persons from applying for appointment. This would be counterproductive. Staff do not support an open, public review of candidates. Until relatively recently, OMB members were appointed for an indefinite term of office during the Pleasure of Her Majesty rather than for a fixed term of 3 years. In practice, this type of appointment was generally until the member reached superannuation age. The advantage of this type of appointment is that individuals could accept appointments without the constraint of concern as to whether their business or professional practice would be available at the end of a short term of appointment. The disadvantage was that it was difficult for the government of the day to remove members whose performance did not satisfy the government's expectations. The better way to address the latter problem would be for the government to establish a thorough performance evaluation system which is communicated to the members, and a formal process for removing from office members whose performance falls substantially short of what is required under the system. In order to ensure that the performance evaluation system does not undermine the independence of Board members' right of appeal by a member who is aggrieved by his or her performance evaluation to an arbitrator appointed by the government should be provided. REPORT NO.: PSD-098-03 PAGE 9 3.0 CONCLUSION 3.1 The Task Force will be presenting their report and the supporting endorsements from municipal councils to the Ministry of Municipal Affairs and Housing and the Attorney General for consideration and implementation. Staff generally support the recommendations of the GTA Task Force Report on OMB Reform with the modifications identified in this Report. Attachment 1 - Report of the GTA Task Force on OMB Reform Attachment2 To Report PSD-138-05 Clw:mgfnn REPORT PLANNING SERVICES Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: Tuesday, September 7,2004 Report #: PS D-1 06-04 File #: PLN 1.1.11 By-law #: Subject: PLANNING REFORM INITIATIVES: DISCUSSION PAPER ON OMB REFORM RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report PSD-106-04 be received and endorsed as the Municipality's comments on the Consultation Discussion Paper #3 on Ontario Municipal Board Reform. 2. THAT Report PSD-106-04 be forwarded to the Ministry of Municipal Affairs and Housing and the Region of Durham Planning Department. Submitted by: Reviewed by: Franklin Wu, Chief Administrative Officer DJC/df 27 August 2004 CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T (905)623-3379 F (905)623-0830 REPORT NO.: PSD-106-04 PAGE 2 1.0 BACKGROUND 1.1 In June, 2004 the province released 3 consultation discussion papers dealing with planning reform. They include Planning Act Reform and Implementation Tools; Provincial Policy Statement; and Ontario Municipal Board (OMB) Reform. This report deals with the third discussion paper on OMB Reform. 1 .2 The release of the three Planning Reform Consultation Discussion Papers on the land use planning system is supported by other initiatives announced as part of the Province's strong communities agenda. This includes the Strong Communities Act (Bill 26) and the Greenbelt Protection Act (Bill 27). In addition, the Ministry of Public Infrastructure Renewal issued Places to Grow: A Growth Plan for the Greater Golden Horseshoe in the Summer of 2004 that provides a long-term vision for growth. Staff will be reporting on the Places to Grow discussion paper in the near future. 1.3 The major issues that the three Planning Reform discussion papers attempt to address are growth and growth management, especially in the GT AlGolden Horseshoe Area, and what the roles of local and provincial decision-makers should be. The three discussion papers bring together all the reforms proposed by the government for land- use planning; as such, they cannot be read in isolation from the other discussion papers and proposed legislation. 1.4 The Province has noted that it has heard a variety of concerns with respect to the OMB. The main concerns are that the OMB substitutes its opinions for those of elected municipal councils, is inaccessible to the public and requires municipalities to devote scarce resources to defending decisions that have already been dealt with through the planning process. There is the perception that ordinary citizens are not dealt with fairly or given the same attention as the interests of developers. Reforms to the OMB cannot be made without considering their impact on the land-use planning system. 1.5 In preparing our comments, staff has attended the stakeholder sessions hosted by the Ministry of Municipal Affairs and Housing and other information meetings. Staff has provided comments to the Region for their report (attached to PSD-105-04). 1.6 Comments were to be submitted by August 31, 2004. A copy of this report was submitted to the Province indicating that Council would be considering the report on September 13, 2004. 2.0 COMMENTS 2.1 Support for the Re~lion of Durham's Recommendations on the OMB The Municipality of Clarington supports the Region of Durham's recommendations respecting Ontario Municipal Board ("OMB") reform. This section of the report will not repeat what has been stated either by the Region in its report to the Province or by the GTA Task Force on OMB Reform to which the Region has referred. The comments and REPORT NO.: PSD-106-04 PAGE 3 recommendations of the Municipality of Clarington set out below are intended to reinforce the Region's recommendations and not to detract from them. 2.2 Appeals to OMB should not be heard de novo except where it finds an unreasonable decision has been made by applying a specific test through the y!! of the recommended "leave to appeal" mechanism. Under the current Planning Act, the OMB conducts hearings de novo (literally, to start anew) of matters appealed or referred to it. Very often reports and other evidence will be prepared by an appellant after Council has made a decision and after an appeal" to the OMB has been filed by him. The appellant will then present these reports and other evidence to the OMB. In fact, the experts who prepare these reports for presentation to the OMB not infrequently will have been retained by the appellant after the appeal of Council's decision has been filed. They will have had no contact with the Municipality before Council makes it decision. Council will not have had the opportunity of considering such reports and other evidence before it makes a decision on the planning matter in question. The result is that in cases where this has occurred, the OMB will make a decision on local planning policy that reflects the planning values of the panel of the Board conducting the hearing and the evidence presented to the Board without having the benefit of considering a prior decision of Council that is fully informed on all of the issues and experts' evidence. This produces two unfortunate consequences. First, it fuels criticism of OMB decisions that reverse or amend decisions made by an elected and accountable Council respecting local planning issues and values. Such decisions tend to denigrate the importance of Council decisions to the public and to the development industry. Second, it encourages developers with sufficient resources to save their best evidence for presentation in the first instance to the OMB rather than to the elected Council in order to gain an adversarial advantage. In order to address this problem, amending legislation is required along the lines recommended by the Region and the GT A Task Force on OMB Reform. In all cases, appeals to the OMB would require permission or leave of the Board which would apply the following test in deciding whether a leave to appeal should be granted: "That no reasonable Council, applying sound principles and acting in good faith, could have made the same decision or have failed to make a decision." The passing of amending legislation would underline the Province's support of municipal government as the crucial decision-maker in identifying and implementing local planning values. REPORT NO.: PSD-106-04 PAGE 4 2.3 Adverse impact of Cler~::tV Properties decision of OMB by passing legislation. There is a further problem that has arisen as a result of conflicting OMB decisions interpreting a panel of the Board's decision in the case of Clerqy Properties Ltd. v. City of Mississauqa (1996), 34 O.M.B.R. 277 (OMB); appeal dismissed in Clerqy Properties Ltd. v. Mississauqa (City), Court File No. 3/97 released on September 29, 1997. In one group of decisions, certain panels of the Board have decided that an appellant has an "inviolable right" in law to have its appeal determined exclusively on the basis of the Official Plan and Zoning in effect at the date of the appellant's application to the Municipality under the Planning Act. Subsequent studies conducted by the Municipality may have identified serious public interest issues. The Municipality may have addressed these issues through Official Plan and Zoning amendments. Evidence of the studies and the amendments are excluded by these panels of the Board from the evidence that is admitted in the hearing of the appeals. The result is that the public interest issues identified subsequent to the date of the application to the Municipality will be entirely disregarded by the panel of the OMB who decide the appeal. This action is inconsistent with the principles on which the Planning Act is based. It is also inconsistent with the Board's function as a policy maker as well as an adjudicative agency. There is a second group of decisions which conflict with the first. In the second group, other panels of the OMB have decided that evidence of the investigation by the Municipality concerned of a public interest issue and the subsequent approval by Council of Official Plan and Zoning amendments to address the issue, if relevant, will be admitted in evidence in the hearing of the appeal, unless evidence directly conflicts with the appellant's development proposal expressed in his application to the Municipality. This qualification may preclude the admission of the public interest evidence in question. Under the current legislation, there appears to be no available means by which the OMB itself can reconcile these two groups of conflicting decisions. This is an important matter that should be resolved by legislation in the public interest. The Municipality of Clarington recommends that the Planning Act should be amended to make it clear that in hearing an appeal the OMB must admit all relevant evidence that is available at the date of the hearing whether or not it is inconsistent with the Official Plan and Zoning in force at the date on which the appellant filed a "complete application" with the Municipality under the Planning Act. This amendment should make it impossible for a panel of the Board in a future case to disregard the first group of decisions and the so- called "inviolable right" of the appellant referred to above and the qualification imposed by the second group of decisions discussed above. It would also enable the OMB in appropriate cases to admit and to rely on evidence respecting the public interest developed after the appellant's application was made to the Municipality whether or not such public interest evidence conflicts with the appellant's development proposal set out in his application to the Municipality. This is a necessary amendment to ensure that relevant evidence of the public interest is not excluded from the hearing of an appeal by the Board. REPORT NO.: PSD-106-04 PAGE 5 2.4 Public confidence in the OMB as appellate tribunal must be ensured. The Municipality of Clarington supports the recommendation that the OMB should be an appellate tribunal that is independent of the parties to the appeal and reviews prior decisions of Council, provided that Council has the opportunity to consider all of the issues and reports presented as evidence in the OMS hearing whenever they were prepared. The Municipality agrees that it is of critical importance that the general public, municipal representatives, the development industry and interested professionals perceive the Board to be an independent and fair expert tribunal. This consideration raises the following issues. (a) Appointment and reappointment procedures for members should be improved. In order to attract and to retain members of the Board of relevant experience and high ability, the Municipality recommends that the Province make the changes set out below to present practices and policies. Currently, OMB members are appointed by the Lieutenant Governor in Council by Order in Council for terms of 3 years. The short term of appointments is counter-productive to the promotion of independent decision making. Essentially, the appointments are in the discretion of the Provincial cabinet which does not publish its selection criteria. Similarly, the criteria employed by the Provincial Cabinet in determining whether a person should be reappointed for a further term of 3 years on the expiry of his or her current term are not published. Reappointments are in the discretion of the Cabinet. The OMB is a Provincial agency mandated to elaborate and implement Provincial policy after conducting a judicial style of hearing under Provincial legislation including the Planning Act. It is appropriate that the Government of Ontario which is accountable to the public continue to retain discretionary authority to appoint OMB members. An advisory committee as recommended by the GTA Task Force on OMB Reform to screen the qualifications of candidates and to make appropriate, confidential recommendations to the provincial Cabinet could be useful to review and comment to Cabinet on initial appointments to the OMS. However, since the recommended advisory committee would comprise "stakeholders", the committee should not be involved in performance reviews of members of the board or in making recommendations as to whether particular members should or should not be reappointed. To do othervv-ise, would carry the serious risk of public perception developing that the independence. of Board members in performing their responsibilities could be undermined by stakeholders. This should be avoided. The Municipality of Clarington believes that OMB members should be appointed for six year terms after the completion of the probationary period. To ensure that the independence of Board members nearing the end of their term is not perceived by the public to be undermined in any way, the Province should adopt the policy of automatic reappointment unless the member's performance REPORT NO.: PSD-106-04 PAGE 6 evaluation falls substantially below what is required by the performance criteria. A suitable performance evaluation system is discussed below. (b) Reasonable compensation must be paid to members. The compensation paid to Board members is far below the compensation paid to senior Provincial officials and to Provincial Court judges. It has not been adjusted for some considerable time. An upward adjustment in compensation is urgently required to attract and retain fully qualified members on the Board. The Municipality of Clarington recommends that the Province review and increase the present levels of compensation of members of the Board using as benchmarks the compensation paid to senior Provincial officials and Provincial Court judges. (c) All initial appointments to OMB should be probationary for 6 months. As in any modern organization, individuals may be appointed members of the Board who may prove to be unable or unwilling to perform their duties in a competent and independent manner. It is important that they are not given 3 year terms initially. The Municipality of Clarington recommends that all appointments to the Board should be on a probationary basis for 6 months with the appointments to be confirmed by Cabinet passing an Order-in-Council on the recommendation of the Chair of the Board if the performance of the members is considered to be satisfactory by the Chair. (d) Discipline procedure of members not performinQ satisfactorilv should be established. Until relatively recently, OMB members were appointed for an indefinite term of office during the Pleasure of Her Majesty rather than for a fixed term of 3 years. In practice, this type of appointment was generally until the member reached superannuation age. The advantage of this type of appointment is that individuals could accept appointments without the constraint of concern as to whether their business or professional practice would be available at the end of a short term of appointment. The disadvantage was that it was difficult for the government of the day to remove members whose performance did not satisfy the government's expectations. The Municipality of Clarington believes that a better way to address the latter problem would be for the Province to establish appropriate performance evaluation criteria and system which is communicated to the members. The performance evaluation of members should be conducted by the Chair or a Vice Chair appointed to do so by the Chair. Also, a formal process for removing from office members whose performance falls substantially short of what is required under performance evaluation criteria should be established. REPORT NO.: PSD-106-04 PAGE 7 The public expects members of the Board to be civil to and respectful of all persons who appear at a hearing of the Board. Conduct by Board members that is patronizing or even in rare cases abusive, is not acceptable. The performance evaluation criteria should include civility and respectfulness as a requirement of continued membership on the Board. Repeated breaches of this requirement should result in the termination of the appointment of the member in question, if confirmed through the inquiry process noted below.. In order to ensure that the performance evaluation criteria do not undermine the independence of Board members, a right of appeal by a member who is aggrieved by his or her performance evaluation to an arbitrator appointed by the Province should be provided. The Chair of the Board should have authority to initiate on complaint being determined to have likely merit or on his or her own motion, an inquiry by a committee comprises chairs of other agencies or other qualified persons who are not members of the Board. The committee should be appointed by the Attorney General and have the mandate to determine whether the particular member should be disciplined for his or her conduct and whether disciplinary action including termination of the member's appointment to the Board should be recommended. The recommendation should be to the Chair of the Board, the Attorney General or the Provincial Cabinet, as appropriate. The Municipality of Clarington believes that if there is to be public confidence in the Board an effective mechanism must be available to ensure that members of the Board satisfy the relevant performance criteria and conducts himself or herself in a manner that is expected by the public of judges and members of quasi judicial tribunals. 2.5 Case Manaaement should be improved bv amendment to OMS Rules. The Municipality of Clarington believes that the OMB's case management procedures work well where appeals to the Board are ripe for hearing. In those situations it is possible for the Board to settle a Procedural Order which identifies the issues that will be addressed at the hearing, set dates for the exchange of witness statements and prepare lists of witnesses who will testify at the hearing of the merits of the appeal. This type of order is issued in order to minimize surprise and the opportunity for trial by ambush to occur with resulting unfairness and delay as well as to promote efficiency and economy of time in the conduct of the hearing itself. The procedures, however, break-down in cases in which a pre-hearing conference is scheduled before an appeal is ripe for hearing. For example, an appeal will not be ripe for a hearing until the Municipality is given a reasonable opportunity to have any necessary further studies undertaken, completed and considered by Council after an application to it is completed under the Planning Act. In these cases the scheduling of a pre-hearing conference may be requested by an appellant in order to establish those who are likely to object to its proposal well before a hearing on the merits of the appeal is scheduled by the Board. Usually, the Board will direct that only those persons who appear at a pre-hearing conference and are given the status of parties will receive notice of subsequent pre- REPORT NO.: PSD-106-04 PAGE 8 hearing conference to settle the issues, the exchange of witness statements and other matters. This is practice is unfair to the Municipality and to the general public. It also is a waste of the Board's scarce hearing resources and member's time. It should not be permitted. The Municipality of Clarington recommends that the OMB's Rules of Practice and Procedure be amended to require that the solicitor for the appellant file his or her affidavit certifying that the appeal is ripe for hearing before the Board schedules a pre- hearing conference or schedules a hearing on the merits of the appeal in question. 2.6 Compulsory Mediation should be authorized on experimental basis. The Municipality of Clarington believes that the OMB should have authority on an experimental basis to require parties to participate in mediation of appropriate disputes by members of the Board before a hearing is held, provided that workable criteria are developed. If mandatory mediation is authorized, it should be tested in a specific area of the Province before it is put in place throughout the Province. The mandatory mediation process and results should be monitored and evaluated by the Board to determine its success and effectiveness in settling disputes without a formal arbitration by the Board being held. If it is determined to be successful and effective, mandatory mediation then could be extended. The result could be a significant saving of the Board's hearing resources by reducing the number of hearings on the merits of appeals that need to be held. 3.0 CONCLUSION The Province should be commended for its recent initiatives to improve the Ontario planning system. The reform of the OMB is a critical component of the planning system and is essential to support the Province's strong communities agenda. We trust that our comments in combination with those from the Region will be helpful to the Province.