Details

The OMB today confirmed that the Board's Rules of Practice and Procedure allows, in certain defined circumstances, an appeal by a third party against an OMB decision.

Information that I relied on earlier - posted on the OMB website - stated categorically that third party appeals were not possible. That is obviously incorrect.

I now intend to press ahead with my appeal against the OMB decision on Glenway.

Here is the exchange of emails:

On 28 November 2014 I wrote to the OMB asking for clarification on third party rights of appeal.

Mr Kondinski

I am sorry to have to trouble you again about my proposed appeal against the Board’s decision on Glenway.

When I contacted you earlier, I relied on the Information Sheet 3 that appears on the Board’s website. It reads:

Can the Board turn down the request for a review?
The OMB will turn down your request if:
A non-party makes the request.

A paper copy of Information Sheet 3 (which I have in front of me as I type this) reads

Can the Board turn down the request for a review?
The OMB may turn down your request if:
A non-party makes the request.

Clearly, Information Sheet 3 was amended at some point to insert “will” for “may” after OMB.

And yet the Board’s Rules of Practice and Procedure, to which you refer me, make it clear that in certain defined circumstances a third party can appeal for a review of a Board decision.

For ease of reference I have pasted the rules below from the OMB website.

In 113 (b) the Chair can determine if there was a valid and well-founded reason why the requester was not a party. I am not a member of the Glenway Preservation Association and I do not live in Glenway. There is very little likelihood that I could have received Party status.

In rule 115 (on which I rely) the Chair can exercise discretion to allow a review if the Board

(d) heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or

(e) should consider evidence which was not available at the time of the hearing, but that is credible and could have affected the result.

I am minded once more to seek a review of the Glenway decision but, before I do so, I wonder if you could take advice and let me know that the rules you pointed me to still stand and have not been amended to exclude non-parties from appealing a decision.

I am out of the country next week but am mindful that the clock is ticking. So an early response would be very much appreciated.

Gordon Prentice

And here is an extract from the relevant OMB rules of procedure:

REVIEW OF A BOARD DECISION OR ORDER 

110. Board’s Powers on Review When exercising its powers pursuant to Section 43 of the Ontario Municipal Board Act and Section 21.2 of the Statutory Powers Procedure Act, Rules 110-119 shall govern.

111. Request for Review of Board Decision The Chair shall consider a person’s request for a review of a decision, approval, or order if the person files the information set out in Rule 112. A request for review does not automatically stay the effect of the original decision, approval or order unless the Chair so orders.

112. Contents of a Request A party making a request for review shall file notice of such request with the Chair within 30 days of the date of the Board’s written decision. Such notice shall include:
(a) the requestor’s full name, address, telephone, fax number, and e-mail address (if any);
(b) the full name, address, telephone and fax number and e-mail address (if any) of the requestor’s representative (if any);
(c) the requestor’s or representative’s signature;
(d) the reasons for the request;
(e) the desired result of the review (such as a change or alteration to the decision or a rehearing of the proceeding);
(f) any documents that support the request, including copies of any new evidence that was unavailable at the hearing;
(g) an affidavit stating the facts relied upon in support of the request;
(h) a statement as to whether the requestor has or will submit an application for leave to appeal or judicial review to the court; and
(i) the prescribed filing fee (cheque or money order payable to the Minister of Finance).

113. Initial Screening of the Request The Board will not consider a request for review:
(a) the request does not include the information required by Rule 112;
(b) the request is made by a non-party unless the Chair determines that there is a valid and well-founded reason why the requestor was not a party;
(c) the request is filed 30 days after the date of the Board’s written decision unless the Chair determines that there is a valid and well-founded reason to extend this time; or
(d) it is a second request by the same party raising the same or similar issues.

114. Filing and Serving a Response to a Request for Review A party that files a request for review may be directed by the Board to serve the request and all supporting material on all other parties to the original hearing event. The Board may require any or all other parties to provide, by a specific date, a response to the request. The Board may identify the issues to address in the response. The response to a request for review shall include the reasons for the response, any supporting documents, and an affidavit stating the facts relied upon in the response. The response shall be served on the other parties and filed with the Chair.

115. Power of the Chair to Dispose of the Request Subject to Rule 115.01, the Chair may exercise his/her discretion to grant a request for review, in whole or in part, and may order a rehearing of the proceeding or order a motion be heard to review a decision. In the event the - 24 - request for review is granted, the Board will set a hearing date or a motion date (as applicable) and will notify all of the parties and provide direction for notice. The Chair may assign a different Member or panel to conduct the rehearing or motion to review. The Chair may also dismiss the request, in which case the decision, approval or order remains in force and effect. 

115.01 The Exercise of the Chair’s Discretion The Chair may exercise his/her discretion and grant a request and order either a rehearing of the proceeding or a motion to review the decision only if the Chair is satisfied that the request for review raises a convincing and compelling case that the Board:
(a) acted outside its jurisdiction;
(b) violated the rules of natural justice or procedural fairness, including those against bias;
(c) made an error of law or fact such that the Board would likely have reached a different decision;
(d) heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
(e) should consider evidence which was not available at the time of the hearing, but that is credible and could have affected the result.

116. The Motion to Review. A Board Member or panel assigned by the Chair to conduct a motion to review may, after receiving submissions from the parties, order a rehearing of all or part of the proceeding only if satisfied that the request raises a convincing and compelling case in respect of one or more of the issues set out in clauses a) to e), inclusive, of Rule 115.01. Should the Board Member or panel that conducts the motion determine that the requestor has not satisfied this requirement, then the request shall be dismissed and the decision, approval or order that is the subject of the request shall remain in force and effect.

117. Procedure on Motion The Board’s Rules on Motions generally apply to a motion to review unless the Board directs otherwise.

118. The Review Hearing The Board Member or panel that conducts the review hearing shall rehear the application, in whole or in part, as either directed by the Chair or the decision arising from the motion to review, and may review, rescind, change, alter or vary any decision, approval or order made by the Board.

119. The Chair May Initiate a Request The Chair may initiate a Request for Review and exercise his/her discretion under Rule 115.01 upon notice with reasons to all parties to a proceeding and within a reasonable time after the Board decision, approval or order is made.

And on 2 December 2014, the OMB's Glenway case co-ordinator, Tome Kondinski, wrote

Mr. Prentice,

I am not in a position to further expound or interpret the Ontario Municipal Board's (the "Board") Rules of Practice and Procedure. Neither am I in a position to give advice as the Board is not permitted to provide advice.

As for Rule 113(b), I am not in a position to assess or determine an individual's and/or an entity's qualification criteria for party status, especially after a matter has been adjudicated. Neither am I in a position to make the determination as to whether there is a valid and well-founded reason why a requestor was not a party and whether the requestor therefore qualifies to make a request for a review of a Board Decision. Should you have any further questions or require any direction in the foregoing, you are to seek your own advice.

I would however like to conclude that in all other respects, the Board's Rules of Practice and Procedure still stand as currently constituted.

Details

The OMB today confirmed that my request for a review of the OMB’s decision on Glenway cannot proceed.

In an email, the OMB’s case co-ordinator for Glenway, Tome Kondinski, confirms that under the OMB’s Rules of Practice and Procedure (110-119) non-Parties cannot appeal a Board decision.

“… only Parties are afforded the right to seek a request for review of a Board decision and no other avenue is open to non-Parties in the foregoing.”

This is very disappointing. Perhaps the forthcoming wide-ranging review of the OMB will consider third party rights. I hope so.

The Parties to the OMB Glenway Hearing in March and April 2014 were: Marianneville Developments Limited; Town of Newmarket; Glenway Preservation Association; Region of York and the York Region School Board.

 

Details

After almost eight months gestation, we now have the OMB’s disappointingly thin written decision on Glenway. It gives the green light to the developer, Marianneville, to shoehorn over 700 new dwellings into the heart of a stable, residential community.

However, key information that could have influenced the adjudicator, Ms Susan Schiller, was never put before her.

I learn it is possible to challenge an OMB decision within thirty days of its release on payment on a filing fee of $125. I am told “the OMB rarely grants reviews and/or changes a decision”. And to review or change a decision the OMB needs proof that, amongst other things, it

  • Heard false or misleading evidence that could have changed the decision
  • Should consider new evidence not available at the time of the hearing that could have changed the decision.

As it happens, I wrote to the OMB in August 2014 setting out my concerns and asking that these be passed on to the adjudicator, Susan Schiller. I was told that OMB protocol did not allow for this.

How the OMB was misled

In his summing up, the developer’s lawyer, Ira Kagan, insisted that there was “not a shred of evidence” that anyone other than Glenway’s witness, Nick McDonald, a professional planner, was considering moving the GO Bus Terminal on Davis Drive West to another location.

This was misleading. 

References were made to the GO Bus Terminal in a companion volume to the Draft Secondary Plan in September 2013. 

That report, dealing with transit and transportation issues, was held back, revised, and only published in April 2014 after Ms Schiller gave her oral decision on 27 March 2014. I had been assured on a number of occasions that the report would be published in 2013. If the report had been published alongside the Draft Secondary Plan (which referenced it) in September 2013 it would not have been possible for Kagan to assert that

“Mr McDonald may think it (the bus station) should move but no-one else seems to agree with him.”

In fact, one month after Mr Kagan made that statement, on 28 April 2014, the senior planner in charge of the Secondary Plan file, Marion Plaunt, told councillors:

“One of the considerations in (the planned Mobility Hub study) is how do we, as we plan forward, integrate the bus station and the GO train station; whether they should naturally be joined at some point, at one location. That is part of the analysis identified within the Mobility Hub Study criteria.”

Why is the location of the GO Bus Terminal so important?

The GO Bus Terminal featured prominently in the OMB Hearing. As a designated “major transit station” it allowed the developer, Marianneville, to argue that intensification of the Glenway lands, with hugely increased residential densities, should be permitted within a radius of 500 metres - effectively swallowing up most of the Glenway neighbourhood.

Marianneville pressed the Town’s planners to include the Glenway lands within the Secondary Plan area knowing this opened the way to more intensive land use. Their approaches were resisted by the Town’s planners.

In paragraph 46 of the OMB decision we read that

“The evidence before the Board is that Marianneville asked repeatedly that its lands in the north east corner, ie, the part of the Marianneville lands that fall within the major transit station area, to be considered as part of the OPA 10 analysis. The Town declined to do so and appeared to justify this refusal on the grounds that Marianneville had made separate applications for an OPA (official plan amendment), ZBLA (Zoning By Law Amendment), and a plan of subdivision.”

Newmarket’s planners could not be asked why they resisted Marianneville’s request because they boycotted the Hearing. In fact, they were already thinking about the possibility and desirability of relocating the GO Bus Terminal. Relocating somewhere on the Upper Canada Mall site was one option.

The revised Secondary Plan, adopted by the Town in June 2014, refers to the Upper Canada Mall Master Plan. This is to be prepared by the landowner(s) “in co-operation with the Town, York Region, Metrolinx and other relevant partners” and will, by amendment, be folded into the Town’s Official Plan at some point in the future. Amongst other matters, the Master Plan will address:

(e) mobility hub study considerations including, but not limited to, integration of transit into the (Upper Canada Mall) site and/or between this site and the Yonge Davis Rapidway, the GO Bus Terminal and GO Train Station in accordance with the Metrolinx Mobility Hub Guidelines.

We know from correspondence published as part of the Secondary Plan process that the owner of Upper Canada Mall (Oxford Properties Group) had been in touch with Newmarket planners for many months beforehand urging the Town to ensure that UCM was removed from the Secondary Plan process. Oxford was in the process of preparing its own Master Plan for Upper Canada Mall “which would guide its future evolution.”

Why did the Town’s senior planners boycott the OMB Hearing?

Is it not truly remarkable that not a single planner employed by the Town of Newmarket attended the OMB Hearing on Glenway, despite the high stakes for all concerned? The hearing reportedly cost Newmarket taxpayers around $800,000.

The Town’s Director of Planning, Rick Nethery, should be asked why.

If the Town’s senior planners had attended the Hearing they would not have been able to sit on their hands while statements they knew to be untrue or misleading were being put to the adjudicator. We need to know why they stayed away.

The Glenway file was, of course, being handled by Ruth Victor, a planning consultant brought in from outside. This allowed the Town’s planning staff, complaining of overload, to concentrate on the Secondary Plan. Perhaps the Director of Planning simply left things to Ruth Victor. Perhaps he agreed with her view that Glenway was ripe for development. Perhaps he did not want to embarrass his employer, the Town of Newmarket, by being candid in front of the OMB. Were they advised to stay away? If so, by whom?

In any event, the attendance or otherwise of senior planning staff at the OMB Hearing must have been discussed at Mulock Drive.

The OMB Written Decision

The adjudicator, Susan Schiller, is vice chair of the OMB and her written decision was, if I am honest, a bit of a disappointment. There is little in the way of closely argued reasoning. Instead, we get terse statements on what various planning policies really mean and how the Town and Glenway failed to appreciate the obvious. As with all OMB Hearings, there is no transcript allowing us to go back and refresh our memories of what actually happened.

We are also told the long delay in delivering the written decision was the result of “technical errors” in the proposed Zoning By Law Amendment. Both Marianneville and the Town advised the OMB these required correction and these went to the Board in September 2014. Why this leisurely approach?

The OMB written decision closes one Chapter but opens another. Glenway should become a case study on what is wrong with our broken planning system.

OMB Review

The Board itself, of course, is now under review.

In her mandate letter of 25 September 2014, Premier Kathleen Wynne, told Municipal Affairs Minister, Ted McMeekin:

“Your ministry’s specific priorities include… leading a review of the scope and effectiveness of the Ontario Municipal Board (OMB). Working with the Attorney General and key stakeholders, you will recommend possible reforms that would improve the OMB’s role within the broader land use planning system.”

The Minister's priorities also include:

“Supporting the development of sustainable, transit-friendly complete communities by amending the Planning Act and Development Charges Act to improve land use planning and encourage smarter growth, with these amendments ensuring respect for local official plans and decision-making, generating more growth-related revenue for transit, requiring that citizen input is considered in the land use planning process and having the effect of reducing the number of applications to the Ontario Municipal Board.”

The Town should actively participate in this review. In last month’s municipal election, the re-elected Mayor, Tony Van Bynen, promised the voters he would

“bring real change to the Ontario Municipal Board and the planning process”.

In his election campaign literature, Plan for Newmarket’s Future, Van Bynen writes:

“Bringing reform to the Ontario Municipal Board and the Planning Act to ensure our residents have a say in shaping their community will be a priority in the next term. Our Council’s decision to fight for Glenway and defend our Town’s official plan was the right thing to do. I will be working with the Association of Municipalities of Ontario and a number of mayors to meet with the Province to bring about real change to the municipal planning process.”

He can start the ball rolling by convening the “Glenway: Lessons Learned” meeting promised by the last Council in April 2014.  Everything that is remotely relevant has got to come out.

This should involve a candid appraisal of the Mayor’s own role. Did he simply let the Town’s professional planners get on with it, leaving crucial decisions to them. Was he a spectator or did he actively try to shape events?

The residents of Glenway have been badly let down by the Town which, to our great cost, fumbled the ball.

For its part, the OMB was not given the whole picture which is why I am requesting a formal review of its Glenway decision.

Back Stories

October 2014: The Town quietly makes an approach to Marianneville to see if the developer would “entertain an offer” to sell the Glenway West lands.

September 2014: How the Glenway Hearing was seriously misled.  This gives the chronology in outline. It shows how key information on transit was never put before the OMB Hearing.

September 2014: Regional Councillor John Taylor blames the OMB, not the Town’s approach. In fact, the performance of the Town’s hired counsel fell far short of what was required. Her performance was lamentable.

August 2014: I write to the OMB adjudicator, Susan Schiller, telling her that the statement by Marianneville’s lawyer, Ira Kagan, that there was not “a shred of evidence” that the GO Bus Terminal at Davis Drive West could be moved was wide of the mark.

July 2014: There is still huge uncertainty about Newmarket’s future population growth. The Town’s planners make a last-minute change to the methodology when presenting the final revised draft Secondary Plan to councillors for approval. 

June 2014: Regional Councillor John Taylor hopes to make the Town’s Secondary Plan “OMB proof”. 

June 2014: Senior Planner, Marion Plaunt, tells councillors York Region wants a re-write of the Draft Secondary Plan as “the proposed height and density (particularly on Davis Drive) may not achieve the planned intensification along the rapid transit corridor”.

June 2014: We learn the future of the GO Bus Terminal on Davis Drive will be the subject of a “fulsome analysis” by Metrolinx. 

May 2014: With the election looming, what do the Parties say about the future of the OMB? 

May 2014: What went wrong at Glenway? What directions did the Council give to Mary Bull (the Town’s outside counsel) giving her authority to negotiate and settle with Marianneville’s lawyer, Ira Kagan? 

April 2014: At a special meeting on the Draft Secondary Plan, Senior Planner, Marion Plaunt, talks about the Mobility Hub Study that could integrate the GO Bus Terminal and the GO Rail Station and “whether they should naturally be joined at some point, at one location”. 

April 2014: Town agrees to hold a “Glenway: Lessons Learned” meeting. 

April 2014: On 22 April, councillors met to consider a report on the agreed settlement with Marianneville. John Taylor blames the OMB where “the majority of fault” lies. The Glenway Preservation Association says it feels completely ignored. 

April 2014: Councillors are told the agreed settlement will give the developer 742 residential units compared to the 730 Marianneville originally wanted. 

April 2014: The Town’s planning staff – not the councillors – are calling the shots and running the show. 

April 2014: Newmarket embraces Marianneville. The Town looks set to do a deal with the developer and decide the future of Glenway behind closed doors. 

April 2014: Is Glenway being hung out to dry? The well meaning and reassuring statements in the Town’s Official Plan about protecting stable residential areas are not worth the paper they are written on. 

April 2014: Glenway and the GO Bus Terminal. Much of Glenway is within 500 metres of the Bus Station and Marianneville claims it is, therefore, ripe for intensification.

March 2014: Glenway and Rick Nethery. John Taylor tells the Council, it put forward the strongest arguments it could to the OMB. Not true. Newmarket’s top planners boycotted the OMB Hearing throughout.

The OMB Hearings

March 2014: OMB Adjudicator, Susan Schiller, delivers her oral decision. She scolds the Town for not allowing the Marianneville’s Glenway lands to be included in the Secondary Plan area. The Town’s planners turned down Marianneville’s request as the matter was then before the OMB. 

March 2014: Glenway's planning expert, Nick McDonald, is grilled by Mainneville’s wide boy, Ira Kagan.

March 2014: Kagan vs Bisanz.

March 2014: Day 1 of the OMB Hearing. The Town’s outside expert planner, Ruth Victor, gives her evidence, fatally undermining her employer's position. 

March 2014: Glenway steels for battle.

December 2013: The OMB Pre Hearing. As an advocate for the Town's position on Glenway, Ruth Victor proves to be a disastrous choice.

The prelude

November 2013: Councillors back Glenway residents.  

November 2013: Glenway and the big bribe. 

October 2013: Too often our councillors come across as bystanders who have ceded control to the professional planners. 

August 2013: The developers publish their Glenway Settlement Offer.

 

Details

You can read the OMB's written decision on Glenway, issued on 18 November 2014, by clicking on "Documents" in the left hand panel and opening "Government Documents".

Scroll to "OMB decision on Glenway."

Commentary will follow.

 

Details

Earlier today I wrote to the. OMB in these terms: 

It is now almost 8 months since the OMB adjudicator, Susan Schiller, gave her oral decision on the Glenway matter. We are still waiting for the detailed written decision.

In the meantime, memories fade, Councillors retire and the world moves on in a thousand ways.

For these reasons and others, I find this delay unconscionable. 

With the municipal elections behind us, I can see no conceivable reason for further paralyzing delays.

I do not know if this foot dragging is particular to the Glenway case or, indeed, to Ms Schiller or whether these delays are systemic.

Either way, I should be grateful if you would let me know how many OMB written decisions are still outstanding eight months after the oral decision. 

I would also appreciate some guidance on where I would find statistics on OMB performance against targets (if these exist).

I am copying this to my MPP, Chris Ballard.

I look forward to hearing from you shortly.

Gordon Prentice

And I received the following response:

Mr. Prentice,

I would like to inform that the Ontario Municipal Board (the “Board”) has issued its written decision on November 18, 2014.  A hard copy of the written decision has been sent to you by regular mail and you should receive it within the next few days.

 As to your questions and concerns with respect to the timing of the issuance of Board decisions and statistics pertaining to performance targets regarding the foregoing, I am not in a position to provide you with this information.  For these types of questions and concerns, please direct them to Mr. Carlo Falletta, the Board’s Citizen Liaison Coordinator.  I have taken the liberty of copying Mr. Falletta on this email.

 Regards

Tome Kondinski

 

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