“We don’t want to go to the Board”.
That’s what most planners and lawyers will tell you. However, the Ontario Municipal Board (OMB) may be your last chance to get your development approved. Or, conversely, you may be going before the Board to defend your development. While the OMB is nothing to be afraid of, it can certainly be a difficult and nerve-racking experience, especially considering the stakes. Given the scrutiny of the Board, it is important to be prepared and to understand the procedures involved.
What is the Ontario Municipal Board?
You may have heard the “OMB” acronym on TV, or read it in newspapers, without any idea of its meaning. You may have heard the acronym because the OMB is the avenue by which a neighbourhood association can appeal a monster home, or a developer can appeal the refusal of an application by a municipal Council.
The OMB is a quasi-judicial body created by the Province to handle appeals under the Planning Act and other related legislation. Every planning decision made by a municipality – whether it involves an interim control by-law, a minor variance, or an Official Plan amendment – can be appealed to the Ontario Municipal Board. Once an application is appealed, the OMB office assigns a case number, and a hearing is scheduled.
An appeal can come from anyone or anything – a not-for-profit organization, a municipality, a corporation, or a concerned citizen. All that is required to appeal is $125 and a completed application form**. However, as you will see, submitting the appeal is only the beginning, and by far the easiest part of the process.
How should I prepare for a Hearing?
So you’ve appealed a municipal planning decision (or someone has appealed a decision affecting your development) and the OMB has scheduled a hearing. What do you do?
Firstly, you have to hire a lawyer. You are certainly within your right to represent yourself, but I would highly recommend against this. As you’ll see below, the OMB operates in similar ways to court proceedings (cross-examination, etiquette, etc.). Just like you shouldn’t represent yourself in court, you shouldn’t represent yourself at the OMB. You may cringe at the price of hiring a lawyer, but it is worth it to not embarrass yourself and lose badly at a hearing.
And not just any lawyer. The lawyer should be a good litigator with experience in land use planning. Just as you can lose a hearing before it takes place by representing yourself, you can also ruin any chance you have by obtaining an inexperienced or unprepared lawyer.
You’ll also need to hire a land use planner as an expert witness. Only the testimony of a professional planner (as determined by the board member, but generally a planner belonging to the Ontario Professional Planners Institute (OPPI) and the Canadian Institute of Planners (CIP)) will be taken into consideration by the Board when determining the interpretation of planning policy. In other words, the Board will only accept a planner’s opinion on anything related to land use planning.
If there are technical reports involved, you will need to call on expert consultants (engineers, biologists, geologists, agrologists, etc.) to either confirm or refute the technical evidence. The number of consultants depends on the technical depth of the application. Just like the planner, the Board makes the decision as to whether or not a person is an expert.
The lawyer (with the assistance of the planner) will put together a document book that includes things such as reports, notices, excerpts of relevant policy, and curriculum vitae. This book will be given to those that are party to the hearing, as well as the board member.
What Will Happen at the Hearing?
The hearing will always take place within the municipality in which the application has been filed. Most people may hear the term “board” and picture something like a U.S. Senate review, where a bunch of old white guys sit in a large half circle and hurl questions at the appellants. It is actually quite the contrary.
Most hearings have one assigned OMB member who is tasked with chairing the hearing and making a decision based on the evidence s/he has heard. Some more complicated hearings may have two, three, or more members chairing. However, in most cases, the decision rests on the shoulders of one person.
The hearing may take place over a half-day, a day, or more, depending on the complexity of the application. As mentioned above, the procedure occurs much like a courtroom setting. Lawyers may give opening and closing statements and will call witnesses to cross-examine. A witness is not restricted to an expert either – anyone can elect to be sworn in to testify. However, it is not an open forum or discussion.
The Board member will take notes and will review the evidence that has been presented.
Rarely does a Board member deliver an oral decision at a hearing. The Board member will review the case and write a decision sometime after the hearing. The member’s decision must first be edited and fact checked by the OMB staff prior to being published. Sometimes it can take upwards of 6-8 months before a decision is published. In most cases, decisions for the less complicated hearings will take 2-4 months to be sent out.
When the decision is made, it is final. Of course, a decision of the OMB can be appealed to the Ontario Court of Appeals. However, as with any other court, the higher court does not like to overturn decisions. Only in rare cases do OMB decisions even see the Ontario Court of Appeals courtroom.
It you have to go to the Board, make sure you have the right people working for you. The OMB is not something you want to go at alone. Expect the entire process to take 6 months to a year before a decision is made, and expect to incur some extra costs. Remember, this is essentially the end of the line for the application, so you want to make sure that you have the best chance to succeed. It’s true that you never want to have to go to the Board, but if it is inevitable, then preparation and professionalism should be your number one priority.
** With most applications, you must have also spoken at the public meeting/hearing, or given written correspondence to the municipality prior to the public meeting in order to be eligible to appeal. The appeal must be submitted within 20 days of the municipality’s decision.