Assemblée législative de l'Ontario

AGENCY REVIEW

ONTARIO MUNICIPAL BOARD

CONCERNED CITIZENS OF KING TOWNSHIP INC

CANADIAN ENVIRONMENTAL LAW ASSOCIATION

CANADIAN BAR ASSOCIATION -- ONTARIO

JOAN COXHEAD

CONTENTS

Tuesday 6 August 1991

Agency review: Ontario Municipal Board

Concerned Citizens of King Township Inc

Canadian Environmental Law Association

Canadian Bar Association -- Ontario

Joan Coxhead

Continued in camera

STANDING COMMITTEE ON GOVERNMENT AGENCIES

Chair: Runciman, Robert W. (Leeds-Grenville PC)

Vice-Chair: McLean, Allan K. (Simcoe East PC)

Bradley, James J. (St. Catharines L)

Frankford, Robert (Scarborough East NDP)

Grandmaître, Bernard (Ottawa East L)

Haslam, Karen (Perth NDP)

Hayes, Pat (Essex-Kent NDP)

McGuinty, Dalton (Ottawa South L)

Stockwell, Chris (Etobicoke West PC)

Waters, Daniel (Muskoka-Georgian Bay NDP)

Wiseman, Jim (Durham West NDP)

Substitutions:

MacKinnon, Ellen (Lambton NDP) for Ms Haslam

Villeneuve, Noble (S-D-G & East Grenville PC) for Mr Stockwell

Ward, Brad (Brantford NDP) for Mr Waters

Wessenger, Paul (Simcoe Centre NDP) for Mr Silipo

Clerk: Arnott, Douglas

Staff: Pond, David, Research Officer, Legislative Research Service

The committee met in camera at 1330 in committee room 1.

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AGENCY REVIEW

Consideration of the operations of certain agencies, boards and commissions.

ONTARIO MUNICIPAL BOARD

The Chair: Come to order, please.

CONCERNED CITIZENS OF KING TOWNSHIP INC

The Chair: The first witnesses this afternoon are from the Concerned Citizens of King Township Inc. Margaret Coburn is president. Mrs Coburn, would you like to come forward, and if you have any other members of the organization who wish to testify, they could come forward as well and just take seats along here. Welcome to the committee. Would you like to identify the other members who are present here?

Mrs Coburn: Yes. We have Margaret Smithyes, who is a member of the York Region Police Services Board and the chairman of our library board; Dorothy Izzard, who is the chairman of the Oak Ridges moraine committee, STORM, which you may have heard of, and Chris Glerum, who is a long-time member of the CCKT.

The Chair: All right. We have allotted you 45 minutes, and hopefully we will have some time for questions and answers from the committee.

Mrs Coburn: Mr Chairman, we realize that the OMB process as it is applied to land use planning is one part of the whole planning process, but we believe some improvements in the Planning Act might indirectly impact on the OMB process too, and the universal existence of official plans would help. We know that some communities, including our region, do not have an official plan. I believe the government right now is trying to make this happen. We certainly support it and laud them for it. The more resolute elected officials at the local level would help too, and would make sure that the official plans were implemented firmly. All these things might decrease the need for the numbers of hearings, and I am sure that is a concern to the OMB in particular. We do suggest that all those things would help.

We were invited today to focus on the OMB process and we are happy to do so. We appreciate this opportunity to contribute to the review of the Ontario Municipal Board process, and hope our recommendations will receive favourable consideration.

We are an incorporated citizens' organization, based in King township, representing a membership of approximately 200 families. Our statement of purpose reads, "To provide opportunities for members of the community to foster and support actions that maintain the rural character of the township and preserve its environmentally significant features, while accepting the necessity for some growth within the township and for an adequate tax base to meet the service needs of the community."

For the past 23 years we have been involved in a number of hearings related exclusively to land use matters. In the last three years we have participated in six hearings, and we have had some wins and some losses. Our executive met recently and decided that the views of our organization should be expressed to this review committee in the hope that our recommendations would help to develop a more equitable process that would ensure a sense of fairness and respect for all those who contribute. We believe the decisions of the OMB are crucial to the provision of responsible development in this province and to the best use of our available land.

We heard about this committee only accidentally. I wondered if I could ask you the process of how this was publicized, because it was very inadvertently that I even knew this process of coming here existed.

The Chair: I will respond to that after you have finished your statement.

Mrs Coburn: Okay, thanks. We have nine recommendations here, and we have put them in the form of our concern followed by the recommendation.

1. Although an enormous amount of power is given to the OMB through the Ontario Municipal Board Act, there seems to be no statement of purpose for the role of the OMB in land use planning. We do not know what objectives the board wishes to achieve with its decisions and we do not know whether the board actually has such objectives. The recommendation is that if such a statement exists, it should be made public. If it does not, it should be developed and published. It is important for us to know.

2. The criteria applied in determining the resolution of a dispute in land use planning vary significantly among chairmen. An example is the varying importance placed on the presence of professional representation for citizens at a hearing. In some instances it is made quite clear to us that if we are not represented by a professional person, our information is not very important. I have even had a lawyer pick that up and point out to the chairman that we were not represented and should not be listened to. We have had various responses to that from chairmen. With one chairman it was quite obvious that is what he thought. Another chairman actually turned that thought down and said there is no reason why citizens do have to be represented by professionals. But there is a variation there that is very difficult for citizens to respond to. Obviously there is a funding problem for citizens to appear, and I think our position would be that if in fact it is decided it is necessary and has to be, then there should be some funding available for such representation. Our recommendation is that the content of the evidence given should be considered more important than the professional status of the witness.

A second example of serious inconsistency is the issue of the right of a property owner to do whatever he likes with his property simply because he owns it. We have had examples of that, and I have a quite glaring example I could read to you of a chairman who has really made it quite clear that if the person puts the money down, he has every right to build what he likes, and the municipality has not got a right really to prevent that happening. The next hearing you go to, a chairman will make it quite clear that if there is not a good planning principle involved, then the decision goes that way, and it is not important that just because he owns the property he does what he likes. The recommendation is that OMB members need to share a common understanding of planning issues.

3. The OMB does appear to be operating in a manner that was appropriate some years ago, before the immense development pressures that exist today. Developers appear to assume that lobbying government officials and end-running municipal councils are standard practices, and this gives them an unfair advantage over citizens who do not usually have the financial means or the access to do the same thing. Our recommendation is that guidelines should be developed that recognize the realities practised today and will encourage the participation of citizens and ensure that their evidence receives equal treatment before the Ontario Municipal Board.

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4. A record of proceedings at a hearing is limited to notes taken by the OMB chairman or by a second member of the OMB who may be present at the time. They are not available to the public, and in some decisions it appears to us that they have not been complete.

The proceedings of all hearings should be recorded and made available to interested members of the public upon the payment of a nominal fee. This would also free the OMB member to concentrate his or her total attention and time on the proceedings, would provide an authentic, objective record and would prevent the need to recall witnesses when lawyers present cannot agree on their recollections of statements given by witnesses. We have had an example where a witness had to be recalled because the chairman and the lawyer disagreed on what was said and so we had to recall the witness.

It seems to us unbelievable actually that these very important hearings take place and there is no record available. We did get our township to hire a recorder on the occasion of one hearing we had, but the cost for us to have done the same thing would have been something in the neighbourhood of $10,000, because it was an individual who does recording as a business and then she sells back the copies of the minutes. I think there is another way that would be a lot more practical, a lot more fair to everybody, and we think it is a very important issue.

5. The selection of board members appears to lack uniformity or rationale, resulting in difficulties for members of the public trying to focus their evidence and to interpret the very different responses to the information they are providing. If you are speaking to a lawyer, you seem to get a certain kind of a response to what you are saying. If you are speaking to someone whose background is planning, you get another kind of response, and they are vastly different responses. We recommend that the selection process for members should be open, and the criteria for the selection be public knowledge. There should be more commonality in their backgrounds.

6. We understand the need to protect OMB members who are coming to a hearing from lobbying, and so the need not to announce in advance who the member will be. But often, we do not know whether we have a planner, a lawyer, a farmer, or whatever; in fact, we are not even told the name of the chairman very often. I do not remember ever being told the name of a chairman when we came, but we have to go try and find out who this person is and what we know about this person: I think it would be a big help if we had a chance to have an assessment, some idea of whom it is we are talking to. The recommendation is that some background information should be made available to participants in a hearing when it starts. If this is a public process, courtesy and openness should be inherent.

7. Because the appointment period is unlimited, some members appear to show less enthusiasm and interest than others, which is perhaps related to their having been too long in the job. Our recommendation is that some criteria for the length of the term of the appointments should be put in place.

8. The power given to OMB chairmen seems to surpass that of courtroom judges, and their decisions are final. The only appeal process, other than through the courts, is to request a rehearing from the OMB itself, a process which is anything but objective, and we have experience with that. We recommend that some objective form of appeal process should be made available. When you go to court, you go before a judge, and you know that the judge is a lawyer, has a legal background, is using the same body of legal information that he is going to make his decision from, even though his interpretation may vary from judge to judge. There is a certain commonality there, and furthermore, you can appeal a decision. In this case, we seem to have neither happening.

9. The small number, usually one, of OMB members at a hearing seems to limit the scope of understanding of the issues we will receive. Our recommendation is that a minimum of three members should be present. If all OMB members assigned to land use hearings were thoroughly familiar with the field of land use planning, this recommendation might not be necessary at all. In fact, it would be ideal if that happened. But the way it is now, we feel that if you had three people, you would get a better cross-feeling for the issues.

I would like to thank you for your attention. These are all points that we feel should be considered, not just one or two of them. We hope they will help with your review.

Mr Chairman, if I were to choose one word to express the sense of frustration that has led us to come here today, it would be inconsistency in the decision-making process of the OMB. So we have tried to develop recommendations that, if accepted, might, we believe, eliminate or at least reduce that sense of frustration because of that inconsistency. Thank you.

The Chair: Thank you very much. I want to answer the question you posed with respect to advertising or how people were notified about this hearing. There was no formal notification, no advertising as such by the committee. Hearing you today and other witnesses earlier in the year is an innovation of this committee. In the past, the committee traditionally asked an agency, board or commission of the government to appear before it, and then dealt with that.

We did not call on client groups or individual citizens or others in the community who may have concerns and may express a different point of view. To make our hearings more effective, we felt we would try that this year. This is a first step in that respect, in terms of the people we advised of these hearings, traditional client groups of the Ontario Municipal Board, plus recommendations made by our researcher and the clerk of the committee.

That is how we drew upon a number of individuals and agencies and organizations. We have heard a variety of opinions with respect to the OMB and its operations, and a significant number of recommendations as to how they can be improved upon, and we appreciate your appearing before us today. The recommendations you have suggested will indeed be carefully considered by the committee.

Mrs Coburn: I am glad that we were lucky and that we did hear about it. Thanks.

Mr McLean: I have a question. In your opening remarks, you indicated that one of the board chairmen had told somebody who owned property that he had the right to do whatever he liked with it, regardless of municipal bylaws or zoning bylaws. Is that a fact?

Mrs Coburn: Yes, I can read the quotation, if you like. He said, "No municipality in the province has the right to deny people homes in the municipality, regardless of where people come from, if private enterprise is willing and can provide such homes without doing violence to sound planning principles."

Now at this point the planner from our municipality had twice recommended that this was not a good decision, and our council had twice supported the planner's recommendations. I do not know what "violence to sound planning principles" really is, but I would say that was what took place, because our planner had certainly said it should not happen. Yet the chairman said it was perfectly all right, regardless of what the planner and the municipal council said.

Mr McLean: Providing it meets all planning principles or something?

Mrs Coburn: So that it does not do violence to sound planning principles.

Mr McLean: So he did not really say they could do whatever they liked. I think that is a very serious allegation. I just wanted to clear that up. It will be on the record now. I do not think any chairman would want to hear it said that he said people could do what they liked with their property.

The other comment I have has to do with the only appeal process that you have in item 8. There is another appeal process, and that is to cabinet. I wonder if you were aware of that. If you are turned down for some reason, and you feel you have been unjustly treated at the hearing, you can appeal to cabinet.

Mrs Coburn: Our understanding is that there is no appeal to cabinet now. There used to be an appeal, but it is not available to us now.

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Mr Bradley: Perhaps a clarification could be given by Mr Pond, our research officer.

Mr Pond: Under section 94 of the Ontario Municipal Board Act, one can petition cabinet to overturn decisions made by the board under the terms of that particular statute. You are quite correct to say that under other statutes, such as the Planning Act and the Rental Housing Protection Act, there is no appeal to cabinet; but for matters arising under the Ontario Municipal Board Act, there is still a petition to cabinet. You could argue that the Planning Act is far more important than the Ontario Municipal Board Act.

Mrs Coburn: We were going by the Planning Act. We were not aware that it was different in the OMBA.

Mr Grandmaître: I have a few short questions. You have been involved citizens for the last 23 years?

Mrs Coburn: Our organization has, yes.

Mr Grandmaître: How are you funded?

Mrs Coburn: There is a $10-a-year family membership fee.

Mr Grandmaître: What do you do in a case where you need a lawyer's advice?

Mrs Coburn: If we have a friend who is a lawyer, we make use of that. Wherever possible we represent ourselves. In some instances, local groups -- some of whom are part of our organization; some are not -- proceeded to hire their own lawyer, and they had a fund-raising event. We have never hired anybody until this year. In the instance of a hearing that we are particularly concerned about, we have hired a lawyer for the first time, and we will have a fund-raising project to support that. It is a principle that we are not keen on. The local residents should be able to do it, provided they do a reasonable job.

Mr Grandmaître: What about King township's official plan. Do you think it is a good plan?

Mrs Coburn: The King township official plan is in the process of review. It is about 17 years old and has been in the process of review for the last couple of years. So obviously they are looking to make some changes.

Mr Grandmaître: It is like the OMB, it needs to be revamped.

Mrs Coburn: Yes, it needs to be revamped, and quickly.

Mr Grandmaître: Going back to official plans, my past experience has been that most of the appeals to the OMB have been because of the lack of clarity of an official plan, and the lack of consultation with the general public about the official plan. That is why people object or appeal to the OMB. But if most municipalities or townships were to review their official plans every five years, as they are supposed to, do you think we could eliminate a lot of those appeals?

Mrs Coburn: If they had a regular review process?

Mr Grandmaître: Yes, municipalities in Ontario are supposed to review their official plans every five years.

Mrs Coburn: I think that is the kind of thing I mentioned in the beginning. The planning process itself, which includes that whole aspect of official plan development within the municipalities, if it were stronger, it would certainly help.

Mr Grandmaître: But I think 839 municipalities have a responsibility to review. How come you have not gone after your own council?

Mrs Coburn: We have. We have been going after them for a number of years.

Mr Grandmaître: Twenty-three years? There is an election in November.

Mrs Coburn: Yes. We hope that will help.

Mr Grandmaître: One last question on your number 7 concern. How long should appointments be? At the present time, it is for ever. How long should they be? Three years, six years, nine years, 10 years?

Mrs Coburn: I could perhaps name a figure, but I have the feeling that we are here to tell you that we think something should be done. We are not here to tell you we are the experts and know exactly what should be done. I think we feel there should be a limit to the length of time they are there, and we are certainly willing to get involved in some dialogue with you as to what that should be.

I think the decision should be made that way, rather than me saying it should be six years or nine years or whatever. I would need to be a little closer to it. But we do believe there should be a limit.

Mr Grandmaître: It should not be like the Senate; It should not be for life.

Mr Wiseman: I would like to pursue your opening comments about official plans. My view of official plans is that they are not really worth a whole lot, once they get before a council that has a certain philosophical approach to land use. If we do try to make official plans become the guideline for how a community should grow, how hard and fast should those guidelines be, and can you give us any idea of what the criteria should be within those guidelines?

Mrs Coburn: I am going to ask if anyone else would like to give you an answer. What I have said I stand by, but I have not made a study of how the official plan should be improved. In answer to the first part of your question, I certainly think it should be firm; it should be strong because, where money is concerned, there is a great deal of pressure that has to be resisted by municipal councils, and I think the strength of the official plan helps them.

Mrs Smithyes: I do not think an official plan is really a guideline. I think it is more than a guideline. I think it is more like legislation of "Thou shalt," and if there is something that needs to be amended, then you go through the amendment process. I view an official plan not just as a guideline; I view the official plan as more than that.

Mr Wiseman: Would you say that if an official plan has an open space, a corridor, in it and it has been in the official plan for a long time, the council should be able to say to the person who bought property there: "No, you can't do anything there. That is green space, that is open space. It has been that way for a long time, and that is the way it is going to be, and you bought the land knowing that"? Should they have the right to say that?

Mrs Smithyes: I think they should have the right to say that, and especially, as Mr Grandmaître suggested, there should be a review process every five years. I think that helps the citizens and the people buying the property to know exactly where they stand.

Mr Wiseman: You used the phrase, "best use available of the land." One of the interesting notions we have is that when people look out on a field, they say it is undeveloped. It is empty. There is nothing there. It may well be high with corn or some other kind of agricultural product but, according to some people, it is empty land; it needs to be developed. Would you include within your suggestions for the Ontario Municipal Board that it starts broadening the criteria about land use?

Mrs Coburn: In the context of what you have just said? You mean, to look at things like agricultural prospects and things like that? I most certainly do.

Mr Wiseman: I just wanted to be absolutely clear on that.

I want to make a comment -- you alluded to it earlier -- about some people having bought the property and being able to do whatever they want with it. Would you agree that it may be private ownership, but there is a public heritage responsibility to managing that land?

Mrs Coburn: Yes, I would.

Mr Wiseman: Is this missing from what we are doing now?

Mrs Coburn: It may depend on the decision-maker. I would say it is probably not missing exactly, I do not think it is being adhered to as often as it should be. I do not think it is up front and centre, where it should be.

Mr Wiseman: The Preservation of Agricultural Lands Society, which made a presentation before this committee, would suggest to you that the disappearance of our class 1 and 2 and, in some cases, class 3 agricultural lands is really an insult to the future and that we should be taking greater care of our agricultural heritage. They were quite adamant in their claim that not one single acre of prime agricultural land should be used for anything but agricultural purposes. How do you feel about a comment like that?

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Mrs Coburn: I presume you would have to weigh it, but I would put a pretty strong importance on it. I think that is valid. We only have so much prime land. There is going to come a time -- and it is not very far off, I think -- when we are really going to be wondering whether we have enough prime land at all. We should be very mindful of it. We should be protective of it. Furthermore, I think agricultural products are worth an awful lot more money than they are getting. The whole agricultural industry needs a boost.

Mr Wiseman: They suggested when they were here that the Ontario Municipal Board does have a mandate to pursue the protection of agricultural land as it exists now but is not exercising that mandate to the degree it should. They would concur with your comments about consistency and the lack of it on the municipal board with respect to the protection of agricultural land, so it is interesting to hear your comments about that. Have you had any experience that you could share with us where the Ontario Municipal Board maybe should have been more aware of the rules that should have been guiding it?

Mrs Coburn: In terms of agricultural land?

Mr Wiseman: Yes.

Mrs Coburn: Many of the issues that we have had where we are have been basically environmental issues.

Interjection.

Mrs Coburn: Yes, that is right. We do not have a great deal of class 1 agricultural land. That is true. A lot of it is lower down, class 3 to 6.

Mrs Smithyes: It depends on the farming practices just how valuable the land is. I happen to be the operator of a 17-acre dwarf apple tree orchard. We happen to make a profit. Seventeen acres does not seem like very much, especially on class 3 and 4 land on the Oak Ridges moraine. However, the trees have been there for 40 years and it is the oldest commercial orchard on the continent. Everybody will point to that as a very successful apple operation, or agricultural operation.

However, if you were to apply only the criterion of class of land, that particular piece of land would be allowed to be built upon, except for the fact that it is on the Oak Ridges moraine and there are other rules and other issues. So the farming practices and the willingness of the operator to do what he has to do has a lot to do with the viability of the farm. It is very difficult to put that into land use rules. I do not know how you do, because it is also a matter of economics.

Mr Wiseman: The reason I am trying to pursue the agricultural is because my riding has a large component of agricultural land which is in danger of being absorbed. I agree with a lot of what you are saying in terms of protecting agricultural land and I have a great deal of difficulty coming to grips with the decision-making process that continuously allows environmental considerations to be ignored and agricultural considerations to be ignored, so I am sympathizing with you in terms of your approach there.

The other thing that really bothers me about some of the process is the argument that is consistently made that if we develop and put up houses and factories, this is going to give you a broader tax base. Quite frankly, my taxes have been going out of sight on my land, and the development in the area that I represent, which is Ajax and Pickering, has quadrupled in the last six years. If that is the case, I should not be paying very many taxes at all, should I?

Mrs Coburn: That is right, and we support that point you have made. We are still trying to find a municipality that actually has followed through and can tell you, "Yes, we did increase our development and we now have lower tax rates." It is an argument that has been made for a long time and I have yet to find a community that can actually show me it has happened.

Mr Bradley: In the concerns you express and the recommendations you make is the suggestion -- it is not stated there -- that the cost of running the government would be increased. I guess the question all of us have to ask now as political representatives is, are you prepared to pay higher taxes to achieve your recommendations? For instance, with regard to intervenor funding, the present Treasurer, as I am sure past treasurers have, will look at the prospect of intervenor funding for the Ontario Municipal Board and roll his eyes at the potential cost. I think that is generic with treasurers, but he will do that. There are other recommendations, such as the provision of transcripts and so on, all of which suggest higher costs.

The reason I ask that is that for years people like me, as politicians, have been recommending a lot of the things you are recommending. When I knock on the door, the person will say to me, "You should do this, you should do this, you should do this." That is all after the first sentence, which was, "Why the heck are my taxes so high and when are you going to cut them?" Are you prepared to pay higher taxes for a better quality of service, which I think is implicit in what you are suggesting?

Mrs Coburn: That is a decision, I realize, that you have to make, as to where the money is going to go. We are saying this is a very important part of the process and we have said the idea of having a transcript should be cost-shared. We would not feel that was the least bit unreasonable. With regard to the idea of having additional people, we have also said that if in fact all the people and the chairmen there were as solidly based and informed and there was a commonality about their approach, the additional people might indeed not be necessary. I guess there is a choice there. If not, we feel the best part of the process would be to have three people there to get a better decision. We think this decision is very important to this process.

Mr Bradley: Again, something else flows out of the questions of Mr Wiseman. If you ask most people in this province, particularly those of us who are urban dwellers, "Would you like to save the agricultural land?" my hand goes up first and I say, "Yes, I want to save the agricultural land." With the second question, "Are you prepared to pay more for your food or are you prepared to pay subsidies of some kind to keep the farmers down on the farm?" it starts to melt away a little bit. How do we resolve that dilemma? How do we resolve the dilemma of Canadians not wanting to pay more for their very cheap food? As you have pointed out, food is underpriced.

Mrs Coburn: I am glad I do not have to make that decision myself. Personally, I think the price we pay for the farmer's product is grossly under. We buy a box of cornflakes and cheerfully pay $3, or whatever we pay, for absolutely nothing and then we get an absolutely delicious cauliflower or something and we complain because it is $1 instead of 90 cents.

Mrs Smithyes: I would just like to say as a farmer that the farmers would far rather have a proper price for their product than have subsidies, whatever a proper price is.

Mr Bradley: I would concur with that and say it is much harder to deliver higher-priced food than it is a subsidy.

Mrs Smithyes: Imports play a big part in the price of food. They are producing food in other places using pesticides, which we are not allowed to use here. We import those foods into this country, people eat them and they have not died.

Mr Bradley: You are right there.

Mr B. Ward: You related in your presentation -- and I thank you for it -- the fact that for the first time in 23 years you felt compelled to hire a lawyer to give your presentation before the OMB. Could you perhaps expand on why you felt the need to hire a lawyer at this time? Do you see this as a trend for the future, and if so, why?

Mrs Coburn: We did not hire him to present before the OMB. We went before the OMB and were quite shocked at the fact that nothing we said seemed to be of any interest whatsoever to the chairman. He referred to us twice as being unrepresented by counsel and it appeared to us that maybe that was our mistake, that in his particular case we should have had a lawyer there. Then we decided to follow other channels to try to have the decision reheard and we did decide to hire a lawyer to try to help us out, because we felt strongly that this was a wrong decision. So far, he has not succeeded.

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Mr B. Ward: So you do not see this as being a trend where citizens' groups or individuals feel the need for legal representation?

Mrs Coburn: I have it said to me by citizens, "There's no point if you don't hire somebody; you are not going to get anywhere." I know of a hearing that is coming up fairly shortly where they are holding a fund-raising event to try to raise $30,000.

Mr B. Ward: Why do you think that is?

Mrs Coburn: Because they think that is the way they are going to win. Certainly some OMB chairmen are not going to be particularly interested unless you are represented.

Mr B. Ward: With the so-called average person, as you say, they would be more impressed.

Mrs Coburn: We have won cases without. We won them. We are not particularly unusual people. I think we happened to be lucky. There are some OMB chairmen we feel are reasonable and open and will listen to whatever they hear, and that is what we think should happen. Right now, it appears as if people feel they have to get representation, and they obviously are doing it.

Mr B. Ward: So it is a growing perception is it?

Mrs Coburn: Yes. I think it is sad, because there are a lot of people who have very real concerns. Normally, we have encouraged groups in our area which were very nervous of going before the OMB. With encouragement, they will go and they do a marvellous job. But you have to make sure the person on the other side of the bench is willing to listen and recognize that he is hearing something worth while.

Mrs Glerum: If I may add something to that, when we talk about the process of the whole OMB, the way the hearings are held and the qualifications for the people who are the members of the board, who are chairing those hearings, if we had tighter guidelines, or maybe one could say job descriptions, for prospective members of the board, as well as, for example, more direction in the way -- there was mention of environmental matters and agricultural land preservation, etc. If there were closer guidelines as to the use of these guidelines by the chairmen when they are hearing a question, and also, for example, the choice of a particular member to hear a matter, say in an urban environment versus a rural environment, who makes the decision, who will hear that particular matter.

If you would have a person hearing the urban question who understands the urban environment, you are bound to get a fairer hearing than with a person who really speaks only from the rural and has very little urban experience. The other way around is something we have observed over the years. With an exception in mind which was a great hearing, many times we have come across people who really do not understand the rural condition and who determine and look at matters from a totally urban point of view. This goes back to some of the other things that were mentioned before, such as when you get people expressing their feelings as to how they feel their environment should be, they are ignored. This comes back also to whether one is represented or not by legal counsel. It is an interplay and many times it has caused great frustrations.

Mrs Coburn: I think that is balanced, the urban background with an urban issue and the rural with the rural. It does not seem to be recognized.

Mrs Glerum: Actually, if there were tighter guidelines which also included the way plans have to be put together, there would be less need for an institution like the OMB. You would have fewer hearings, you would cut your costs and there would be a lot less acrimony in the whole system.

Mr Villeneuve: It is always interesting. I am sure everyone in the room would raise his hand to say, yes, I am willing to pay more for food, yet when you go to the supermarket it is always too expensive. Our marketing boards, which are working quite well in Ontario, are now under attack by consumer groups. It is a double-edged sword. People say one thing in one instance; however, when it comes to digging into their pocket for money, it turns out differently.

It is great to preserve this farm land, and I am certainly all for it. However, the people who own it have to make a living. It was interesting to hear the lady on the end speaking of her 17-acre apple orchard. I have many people in the riding I represent who are apple growers. They suffered a major loss back in 1981, and they are still recovering from that. If you are making a profit I congratulate you, because not many people are.

In this day and age a tipping fee for garbage is over $100 a ton. You cannot get that for a ton of barley, a ton of oats or a ton of corn. It does not make a lot of sense. It is real easy for us to say, yup, we are going to save all this great farm land. However, the people who own it are going down the pipe. That is the other side of it.

I am sure you were referring to Alar a while ago and other chemicals that --

Mrs Smithyes: I did not say a word, but you are right.

Mr Villeneuve: -- are on the produce that we import from wherever, yet our farmers, efficient as they are, are not allowed to use the chemical. There is a real dilemma here. I thank you for making the presentation and for having, I think, a balanced representation. I am pleased to see that you have some agricultural producers on your group and you represent the broad spectrum.

Would you like to categorize the cases and also orient the different OMB chairpersons towards these categories? I think you were coming close to saying that without saying it. Would you like to see that?

Mrs Coburn: You mean having somebody who is a rural person as a specialist in a rural sitting?

Mr Villeneuve: Instead of coming off the top and handing it to whoever is next.

Mrs Coburn: It would absolutely be a plus. I am sure it would be a plus to do that.

Mr McLean: If you ask the chairman that question, I think he will say, "I try to do that all the time."

Mr Villeneuve: That may be, but it is an unwritten rule.

The Chair: Thank you very much, Mrs Coburn, and other members of your group. We appreciate your appearance here today.

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CANADIAN ENVIRONMENTAL LAW ASSOCIATION

The Chair: The next group is the Canadian Environmental Law Association, Richard Lindgren. Mr Lindgren, welcome to the committee. Do you have other members of the association here with you today?

Mr Lindgren: I am flying solo today. Good afternoon, Mr Chairman and members of the committee. I am a staff lawyer with the Canadian Environmental Law Association. As some of you know, we are a legal aid clinic funded under the Ontario legal aid plan, and we represent both private citizens and citizens' groups in matters relating to environmental law. Towards that end, we appear in the courts and before administrative tribunals on issues involving environmental protection or resource conservation.

Over the years, CELA lawyers, including myself, have had the opportunity to appear before the OMB on a variety of matters, most of which occur under the Planning Act. That is where most of my comments will be coming from; namely, our experience with the planning process as the process plays itself out before the OMB.

As I indicated in the brief I filed last winter, we always represent intervenors, so I think we have a bit different perspective on how well or how poorly the OMB is doing its job.

I personally have had the opportunity of appearing before the OMB in a variety of settings ranging from council chambers to hockey arenas and community halls, and that experience has certainly given me a great deal of respect for OMB members. I think they work very hard. There is a lot of travelling involved, often they do not seem to have adequate resources or staffing to assist them in the job we ask them to do and, more often than not, they are involved in tackling some very thorny, very controversial issues relating to protection of the environment.

The point I really would like to start off with is that I am not here to criticize the OMB, I am not here to second-guess OMB decisions, and I am certainly not here to point fingers at individual OMB members. What I would like to do is highlight some of the recommendations that are contained in the CELA brief, and I am doing that with a view to promoting some discussion on the need for some reforms to the OMB hearing process.

I understand from the clerk that my executive summary has been circulated to the members of the committee. Probably that is the only document you need to refer to as I go through my submissions. It is a three-page document, with a one-page press release and a two-page executive summary. On the executive summary you will see listed seven reform items that CELA would like to see implemented as soon as possible. I will go through them very quickly and then discuss each of them in a little detail.

The first recommendation we make is that the intervenor funding legislation must be extended to the OMB as soon as possible.

The second recommendation is that the OMB cost guidelines must be substantially improved and liberalized.

The third recommendation is that a comprehensive professional development program must be initiated at the board, particularly in matters involving environmental protection and resource conservation.

Recommendation 4 would require an improvement of OMB case management and management techniques.

Recommendation 5 indicates that where the subject matter of an OMB hearing is subject to a designation request under the Environmental Assessment Act, then no OMB hearing should be held or scheduled until the Minister of the Environment has had an opportunity to make a decision on the designation request.

The sixth recommendation is that the OMB be empowered to impose comprehensive environmental monitoring conditions and, second, that the board be empowered to require restoration of the environment where land has been destroyed or bulldozed without OMB approval.

The final recommendation on the executive summary is that the provincial government must reform the overall planning process to ensure that integrated ecosystem-based planning is carried out at all levels in this province.

Since I wrote the brief, I have had an opportunity to reflect further, and there are two additional recommendations I would like to make at this time. They are not contained in the brief or in the executive summary; I think I can deal with them fairly shortly.

The first is that there needs to be a reform of the OMB standing rules. As some of the members of this committee may know, unincorporated organizations cannot initiate an appeal to the OMB. We think that needs to be changed.

The second additional recommendation I would make is that there is a need to broaden and expand the membership of the OMB. That is not a particularly novel or controversial recommendation either. I think it needs to be done. I know the OMB is undertaking some efforts in terms of expanding the membership of the OMB, and we certainly would commend them for doing so.

As I have indicated in my brief, the fundamental premise of CELA is that all citizens who are interested in or affected by the subject matter of an OMB hearing must be given a meaningful opportunity to appear and be heard at the OMB hearing. I ask you to keep that statement in mind as I go through some of my recommendations, because I believe that should be the driving principle at the OMB. I believe that a number of the recommendations we make will in fact assist in the achievement of that objective, which is to maximize public participation at the OMB.

As the committee has undoubtedly heard, the OMB currently has jurisdiction under 100 or so statutes, and a number of those statutes create public hearing opportunities. But what good is that right to a hearing when, for example, the public interest group does not have the adequate resources to participate at the same level as proponents or municipalities? What good is the right to a hearing when it takes over a year to get an OMB hearing and in the meantime a developer, for example, might have already gone ahead and bulldozed the land that is subject to the OMB hearing? These things happen and they continue to happen. They are very urgent problems, and they are problems that have to be addressed by the OMB and by the Legislature.

I could offer the committee a number of concrete examples of some of these problems. I will not do so. Instead, I will focus on just one case, because I think it illustrates some of the problems that need to be addressed, and it certainly helps underline the need for some of the reforms CELA is advocating.

The case I will be referring to from time to time is the Constance Creek wetlands case, which some of you, I am sure, are familiar with. It is an OMB decision that was released last summer. It involved a class 1 wetland near Ottawa that was bulldozed without rezoning approval. After the wetland had been dredged and filled and bulldozed, then the developer applied for rezoning approval and got it. The matter was appealed to the OMB, and I was retained by the local citizens' group to act on its behalf. We were successful before the OMB. The OMB quashed the bylaw in question, but for a variety of reasons the golf course was built anyway. It is probably being used today, if it is sunny up in Ottawa.

I am going to be referring to that case to illustrate some of the points I want to make. With that introduction, I would like to return to my first recommendation, which is the need to extend intervenor funding to the OMB. I am sure everyone in this room knows that the current intervenor funding legislation does not apply to the OMB. CELA and a number of other groups have very strongly recommended that the OMB be made subject to that act. We say this because public interest interventions are important, they are valuable and they should be encouraged, because intervenors can often present evidence and opinions that otherwise will not be heard by the OMB. As well, public interest intervenors can test the evidence of municipalities and proponents who appear before the board. Finally, public interest interventions are important because they help enhance the credibility of the decision that is made, and it enhances the accountability of the OMB by having the public interest intervenors there and being heard.

However, the ability of many public interest intervenors to appear is hampered by their lack of financial resources. That comes as no great surprise. The bottom line is that you need money to retain counsel or to retain the expertise that is necessary to present a full and effective case to the OMB. This is to be contrasted with the position of municipalities and proponents who, of course, have more than adequate resources to hire the lawyers and the consultants and the expert witnesses who are all going to appear at the OMB. This can have the effect of turning the hearing into a very much one-sided affair, and I think that is to be avoided.

Let me illustrate this by referring to the Constance Creek case. There we determined that in order to present an effective case we had to retain an expert in wetlands ecology, an expert in wetlands loss in Ontario, an expert in the effects of pesticides on wildlife, an expert in the impact of herbicides and nutrients on wetlands. We needed a land-use planner and various other forms of expertise. Fortunately for us, the experts we contacted recognized the importance of the case and offered their services on either a pro bono basis or at a much reduced fee. We were quite fortunate to find these individuals, because if we did not, that evidence never would have been called before the board, and it certainly would not have helped the board reach the decision that it did.

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Public interest groups should not have to rely upon the goodwill of experts. They should not have to go to the experts with hats in hand and request on bended knee that they appear at the hearing on their behalf. This is a totally unacceptable situation, and if it is permitted to continue I have no doubt that it is going to inhibit the quality and quantity of public interest interventions before the board. That is the primary reason why we say intervenor funding must be made available in Ontario Municipal Board proceedings.

We are not advocating that intervenor funding be made available in all OMB hearings. That is unrealistic and not necessary. But certainly the lengthy, technical and complex hearings the board occasionally adjudicates under the Planning Act or the Aggregate Resources Act are the kinds of cases where intervenor funding is absolutely essential and must be provided to eligible intervenors.

That brings me to my second recommendation. It is a related recommendation, having to do with costs and the OMB. If you have read my brief, and if you have read, in particular, appendix B to the brief, you will know that the Canadian Environmental Law Association has had a long history challenging the board to improve its cost practices.

As committee members know, the board does have the power, under section 96 of the Ontario Municipal Board Act, to award costs, but the problem is, they generally do not award costs to public interest groups. It is well established that the board will not award costs against public interest groups unless their intervention has been found to be frivolous or vexatious, a regular test. I think that is a good thing, because the board should not discourage people from coming forward with the threat of an adverse costs award. So we certainly support the board's practice of not awarding costs against public interest groups, although I am aware that there have been certain notable exceptions to that practice.

At the same time, the board has consistently refused to award costs to public interest groups at the conclusion of hearings. I think that also serves to scare off public interest groups and it certainly limits their ability to present a case. I have talked to a number of public interest groups who simply will refuse to go to the OMB because they do not want to incur significant out-of-pocket expenses that will not be reimbursed by an OMB cost order. It is a real problem, and it is serving as a real deterrent to public participation before the OMB.

That is why we have advocated that the OMB review its existing cost guidelines with a view to improving them and making costs routinely available to public interest intervenors, where the intervenors have acted responsibly and have contributed to a better understanding of the issues by the board. I think the board should only deny costs to public interest intervenors where the intervention has been frivolous or vexatious, and I have to imagine that is going to be a rare situation indeed.

That reform itself will certainly assist groups like my clients in the Constance Creek case. Notwithstanding the fact that a number of the experts donated their time, my clients still incurred a very sizeable bill that took them a long time to pay off, and they had to do so with well-known strategies like bake sales. They sold Christmas trees and performed other services and sold other products in order to raise the money. Again, I do not think it should be that way. If we are serious about having the public participate before the board, we should be ensuring that they get reimbursed for their contributions.

That is all I intend to say on costs. I think costs and intervenor funding are the two most critical issues facing the board today, and I certainly think some of the reforms are long overdue in respect of those two issues.

Moving very quickly to the third recommendation, the need for training and professional development of OMB members: I have to say that CELA lawyers have generally appeared before OMB members who have been quite knowledgeable about environmental issues, and that really comes as no surprise, because the OMB has been hearing matters involving environmental issues for a number of years.

Having said that, I have talked with a number of public interest groups who have appeared before the OMB, and they have encountered OMB members whose environmental sensitivity or knowledge or interest has been questionable, at best. I have to say this is a very widespread concern. It is held by a number of groups that have appeared before the board and there may be some legitimacy to the concern. It is a concern that can be easily addressed, I say, through a comprehensive training program for OMB members.

There are a lot of good things going on right now in terms of environmental planning. A lot of work is being done in terms of cumulative impact assessment, ecosystem-based planning and landscaped level planning and management. These are the kinds of developments that OMB members should be kept abreast of. I think a training program would certainly go a long way in securing that level of understanding.

The fourth recommendation is that OMB case management be improved. My only real comment here is that it is a good thing the Askov decision does not apply to the OMB, otherwise we would be in a lot of trouble. It is taking far too long to get a hearing. The primary reason, as I understand it, is that the OMB's workload is increasing, but at the same time its resources and its budget have not similarly increased. I think that can be addressed through additional part-time and full-time appointments. It can be addressed through the provision of more resources to the OMB --

Mr Bradley: Have you been talking to Mr Kruger?

Mr Lindgren: I have been talking to Mr Kruger. Ipso facto, though, after I put in the brief.

The other matters I would like to touch on in terms of case management have to do with setting of dates, scheduling of hearings and prehearing procedures. The first point I would like to make is that I think it is incumbent on the board to schedule matters with full consultation with the affected parties. Far too often I have been presented with dates that I cannot make or my witnesses cannot make, or in fact that my clients cannot make. It seems to be the perception that OMB staff is more willing to accommodate the scheduling requirements or wishes of proponents of municipalities rather than public interest intervenors. I think that can be easily addressed by just a phone call, or a requirement that all parties be notified in writing as to potential hearing dates.

The other scheduling matter is that the board needs to set realistic hearing times at first instance. I have been involved in a number of hearings which, for one reason or another, go beyond the expected time length, and then there is a huge time lag between the end of the first phase of the hearing and the continuation several months later. That can be a problem, because quite frankly, there is a witness availability problem. There is a problem in the sense that there are no transcripts, so it is hard to remember the evidence, to remember the testimony. We need to be setting aside realistic time frames for these hearings up front.

The only other comment on case management is that I would certainly encourage the board to go further, in terms of its prehearing mechanisms, to sculpt the issues, to attempt to settle the matters without a hearing, if that is possible; and we certainly would encourage the board to further explore alternative dispute resolution.

Recommendation 5 is that there needs to be improved co-ordination between the OMB and the environmental assessment process. I have been involved in a number of hearings where, very early in the process, my clients have made a designation request to the Minister of the Environment; nothing happens with the request; the OMB hearing gets scheduled in any event; we bring a request for an adjournment to allow the minister to make a decision; invariably the request for the adjournment is turned down; the OMB hearing goes on, and that can present very serious and intractable problems, particularly if there is going to be designation, because quite frankly, there is a possibility of getting conflicting decisions between the various decision-makers. That is why I think we are making a very sensible and reasonable request here, and that is, that no OMB hearings should be held or scheduled until there is a designation decision.

Recommendation 6: We would like the OMB to be specifically empowered to impose comprehensive environmental monitoring programs and require restoration of the environment in appropriate cases. Again, this is a matter I have had an opportunity to discuss with Mr Kruger. I might stand to be corrected on this, but his view appears to be that the board is constrained by its legislation in terms of imposing comprehensive environmental monitoring conditions. He may be right, because section 34 of the Planning Act, for example, is completely silent on the matter of monitoring; so is the Ontario Municipal Board Act, for that matter. For that reason we say fine, if the legislative authority is not there, let's give it to them because it is important for the board to impose adequate compliance monitoring and effects monitoring programs, particularly on the big developments and the big issues where environmental problems can be anticipated.

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With respect to environmental restoration, let me just say that I find it personally quite outrageous that a developer can go in and destroy an environmentally significant area on his own property and then apply for rezoning. I think that is obscene. I think that needs to be stopped with a legislative amendment that prohibits that kind of activity. The bottom line is, unless that clearing of the land or grading of the land involves public land or fisheries habitat, there appears to be nothing that can be done to stop that kind of activity because clearing and construction does not appear to be a use that can be regulated by municipalities. As I mentioned at the outset, that is precisely what happened in the Constance Creek case. I think we need to close that loophole immediately. I will go very quickly through this.

Recommendation 7: I think it is important to recognize that the OMB is just one actor in the land use planning process. It is certainly an important actor, but it only carries out its role in the context of the larger planning and approvals process, and to a very large degree the quality of OMB decisions are dependent upon the quality of the land use planning process and the quality of the statutes governing the process. So, for example, if the Planning Act does not require a comprehensive analysis of alternatives, then quite frankly, you cannot fault the OMB for not looking at those issues, because the Planning Act does not require it. That is why we say OMB reform cannot be divorced from the larger picture. It is incumbent on this government to review and reform the existing land use planning process itself, and perhaps the recently appointed Sewell commission on land use will have all the answers, who knows? But in any event, it is certainly a priority issue and it is one this government has to be addressing as soon as possible.

Of the two final recommendations I have made, the first is that unincorporated groups must be given standing to initiate appeals to the OMB. Quite frankly, if a public interest group has a legitimate concern about a proposed development, then it makes not one iota of difference if the ratepayers' group is called Ratepayers' Group or Ratepayers' Group Inc. These people should be given the standing, under the various OMB-administered statutes, to initiate appeals. It makes no sense to exclude those persons, particularly when the issue of standing is being relaxed in other tribunals and in the courts.

The final recommendation we have made is that OMB membership should be considerably broadened to include a number of other professions, a number of other people, to reflect the diversity and the multicultural nature of Ontario society. I know the OMB has been making some recent efforts at attracting some other people to the OMB, and I would certainly encourage the board to go further with that.

In conclusion, I would like to thank the committee for this opportunity to address it on this very important issue. We strongly believe that it is necessary to enhance public participation before the OMB, and we would certainly recommend that the OMB undertake the various reforms we have outlined in our brief.

Mr McLean: I guess intervenor funding would allow individuals or groups to be able to hire a legal person to help them, would it?

Mr Lindgren: Legal fees are an eligible disbursement under the Intervenor Funding Project Act as it exists now. That is correct.

Mr McLean: Then we would end up with all lawyers on the board. We would have lawyers on both sides. We would have a kangaroo court fighting a case that the OMB is not totally set up to do in the first place.

Mr Lindgren: With respect to your second comment, I could not agree more that the OMB should not be exclusively populated with lawyers. Unfortunately, I believe that does represent the largest profession on the board right now, followed closely by planners and then by engineers. I think we certainly need to broaden the membership.

If I could pick up on a comment that was made by the previous group; the group representative was asked whether they think it is useful or desirable to have a lawyer appear on their behalf at OMB hearings. I get asked the same question all the time from members of the public, and my advice has always been no, it is not absolutely necessary in all cases because some groups can do very well and succeed before the board. But having said that, we are absolutely swamped at CELA with requests for representation at OMB hearings. Increasingly the hearings are getting complex; they are getting technical. You need, unfortunately, professional assistance to sift through the documentation and to level the playing field.

Mr McLean: I think that is just where we are all going wrong in this whole important issue. I have watched this process for some 30 years, and I always found that it worked very well. I have advised people in my community who want to have a hearing before the OMB that you do not need a lawyer; you go; those people are there; common sense prevails. What I am getting from people now is that they have to have a legal person; they think there should be somebody legally there to represent them. I think that is wrong. That is not what the OMB was set up for. I thought it was set up so that I or an individual could go and state my case because I thought I was unduly treated in some form, and that is what they are going to base their decision on. I think that we are getting away from it.

I have another question, and it has to do with the comments you made with regard to the bulldozer in the swamp. I had the very same thing happen in a municipality that I represent. Those people came to me, we went to the Ministry of Natural Resources, went to the Environment, we took them to court. The guy has to move the road out of the swamp and we did not have to have lawyers to do it. It is interesting how some win and some lose. That did not have to go to the OMB; it simply went to the court. There are many cases that we can relate to. Whether some of them are frivolous or not, it is all important to the environment. So I guess it does not matter where you are; we all have individual cases. The one that I am referring to is one in the municipality of the township of Oro that had that very problem.

On intervenor funding, would $30,000 be an average amount that would be given out now?

Mr Lindgren: I am not sure I referred to the figure of $30,000, and I am not sure where you are getting that figure.

Mr McLean: On page 5 of the report you had.

Mr Lindgren: Oh, you are looking at the intervenor funding brief that I submitted on behalf of CELA some years ago. That is right. That used to be the maximum that was made available by the order-in-council intervenor funding program that we used to have in this province. Under the intervenor funding legislation that is now in effect, the Environmental Assessment Board has been awarding intervenor funding in amounts much larger than that. In the Ontario Waste Management Corp hearing and in the Hydro hearing, I believe intervenor funding in the amounts of several hundred thousand to millions of dollars have been allocated under the legislation.

Mr Wessenger: Mr Lindgren, I assume you have also had experience with respect to appearing before the Environmental Assessment Board.

Mr Lindgren: Yes.

Mr Wessenger: I am wondering if you could indicate to the committee how you would compare the operation of both boards with respect to the efficiency of operation.

Mr Lindgren: That is a tough question to answer because I am not privy to the administrative mechanics of either board, and I am not really in a position to comment as to how efficient the Environmental Assessment Board is vis-a-vis the OMB. In defence of the OMB, I think it is important to point out that the OMB has a lot more work to do because it administers a lot more statutes. So it is hard from my perspective to say whether the EAB is performing better or worse than the OMB.

Mr Wessenger: What I was particularly concerned about is that it has been stated that the procedures at the OMB are more efficient with respect to submissions and evidence than they are at the Environmental Assessment Board. I wonder if there is any validity to that statement.

Mr Lindgren: I think that is true, because the Environmental Assessment Board is now hearing some very lengthy matters. Some of the hearings are going on for a matter of years. In an attempt to streamline the hearing process the Environmental Assessment Board is attempting to undertake various pre-hearing procedures to try and shorten the hearing process if possible. The Environmental Assessment Board is trying to use things like statements of issue between the parties. It is using pre-filed evidence. It is using a variety of techniques and devices to streamline the process. Those things have not been used to a great extent by the OMB, and those are the kinds of devices that I think the OMB should be looking at if it is serious about expediting the hearing process and shortening the hearings, because some of the OMB hearings can go on for quite a long time, as well. There was an aggregate case that went on for months and months and months, as some of you are probably aware.

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Mr Wessenger: It has also been suggested by some, in view of the number of joint board hearings, that consideration perhaps should be given to consolidating the OMB and the Environmental Assessment Board in one board. How would you feel about that?

Mr Lindgren: I have heard the comments made that there is a need to merge the two boards and the two statutes, namely the Planning Act and the Environmental Assessment Act. I do not believe CELA has actually taken a position on that, although I know we are inclined not to favour such a merger. I think there is a need to maintain separate and distinct planning processes because, quite frankly, some things requiring the Planning Act process do not require the full-blown environmental assessment that is required by the Environmental Assessment Act. We would certainly support a continuation of separate planning processes, provided there is an ability to use the Environmental Assessment Act and the environmental assessment process in appropriate cases to deal with proposed development that otherwise would only be approved under the Planning Act.

Mr Wessenger: You have also indicated you feel the need to broaden the criteria for appointment to the OMB. Do you have any suggestions as to what the criteria should be for appointment to the OMB, aside from the fact of making it more representative of the community?

Mr Lindgren: From my perspective, I think there need to be more women on the board. There certainly have to be more people with environmental backgrounds or interest, and there certainly need to be more visible minorities on the OMB. Aside from that, I cannot give you a checklist of the precise qualifications an OMB member should bring to the board.

Mr Wessenger: Would you agree that many of the issues before the board would be quite complex issues and would require the ability to understand that complexity?

Mr Lindgren: It depends on the statute you are talking about. I would say yes if you are dealing with Planning Act appeals or matters under the Aggregate Resources Act, but even some of those matters are not too complicated. The OMB hears a lot of different things, ranging from assessment appeals to appeals of minor variances which are granted by local committees of adjustment. Those things are not complex. It is my understanding that most of the applications are not terribly complex, but there are the big hearings under the Planning Act and the Aggregate Resources Act that are complex. They are lengthy, and the OMB members should certainly be expected to be knowledgeable on the issues that are likely to be raised in hearings under those statutes.

Mr Wessenger: Do you have any recommendations with respect to the whole question of term and tenure with respect to OMB members?

Mr Lindgren: That is a controversial issue, and I have talked to a number of public interest groups about that. There are some groups which, for example, favour very limited tenure and appointments that take place in a very open process. I have read the Coopers and Lybrand report on that issue, and I do not have any firm recommendations at this point. I understand the concern is that you may need a tenure as long as five years to bring new members up to speed, with a view to reviewing the appointment every three years thereafter. I would not have any objection to that model.

Mr Wessenger: Would you suggest some sort of performance review of OMB members on the question of reappointment?

Mr Lindgren: I would certainly expect and demand that performance be a criterion, or certainly it is a matter that should be looked at when reappointment is being considered. Towards that end, I think there should be an opportunity for public input as to whether or not a member should be reappointed.

Mr Wessenger: On the other side, there seems to be certainly a grave concern about the question of the judicial independence of the board and a perception that if you have a performance review you are in effect taking away from the quasi-judicial nature of the OMB and making it more of an administrative body of the government, so I am wondering if you have any concern in that regard.

Mr Lindgren: Not really, because there is in place a review process for the conduct of judges. I am thinking, for example, of the Ontario Judicial Council, which does look into complaints that judges are not acting appropriately, so I do not think the mere fact that you are looking at how well or how poorly a member does necessarily affects the independence of the tribunal.

Mr Bradley: How do we avoid the problem arising -- and some will make arguments against intervenor funding that this certainly adds to the problem, I guess is the best way to put it -- of it simply becoming a forum for lawyers fighting? There are many people, as you may be aware through your profession and your experience, who criticize what we have done with the Environmental Assessment Board. They would say the Environmental Assessment Board is no longer a court, if we can use that word, for the average citizen; that now it is high-priced lawyers or low-priced lawyers -- whatever happens to be the clientele, I suppose -- battling it out over legal complexities, and each bringing in experts who cost money, and the experts battle it out. The citizen, the average citizen, whatever that is, is really excluded from significant participation in the process. You may contend that that is not the case in the environmental assessment board, with some justification, but how do we avoid that if we bring about intervenor funding and people then hire lawyers?

Mr Lindgren: I think you have to look at the overall purpose of making intervenor funding available. The reason you are making it available is to enhance the ability of that public group to participate on an equal playing field. Quite frankly, if you do not make the intervenor funding available, then the citizen is going to go up there and be confronted with an intimidating array of professional witnesses and lawyers and so forth, so you have to level the playing field.

If I could continue for a moment, I am not sure I would agree with the suggestion that making intervenor funding available will degrade or downplay the role of the public. Let's face it: lawyers take instructions from their clients. If a client wants me to undertake a particular course or take a particular position, that is my highest authority and I have to do that.

It is hard to defend the role of lawyers sometimes, and I am sensitive to that, but you have to remember that you are dealing with statutes. These are legal documents that you are dealing with. It is a legal process and, like it or not, some lawyers have to be involved.

Mr Bradley: It brings about, however, a lot of suggestions that essentially the only people who can sit on boards are people with some kind of legal background. The Environmental Appeal Board, for instance, used to be a very informal procedure. It used to be a quick procedure. Today a lot of people, outside of the septic tank cases, come armed with their lawyers and the chair will often ask for people with a legal background, which I read as being a lawyer. So does that not really mean that we are going to see, because of the legal complexity of the cases, more lawyers sitting there on these agencies, boards and commissions?

Mr Lindgren: You may, but it is not inevitable that they be lawyers. I am thinking, for example, of justices of the peace. A number of them still are not lawyers and they may have a certain modicum of legal training that is sufficient to get them through the very complicated tasks they are called upon to do, so you might have to ensure that the new members of these various tribunals have in fact some exposure to legal training of some sort, even a very rudimentary level of legal training. It does not mean they have to be lawyers; it just means they have to be people who can think clearly for themselves.

Mr Bradley: I would hope that would be the case. I just noticed the trend coming, and I can be, I suppose, justifiably blamed for doing it, for putting these people on these boards and for introducing intervenor funding and so on. The arguments against it have been compelling -- I will not say to me, but certainly to some others -- that it is moving in the wrong direction. Even some strong proponents of the system, including intervenor funding, people who I would never believe would change their mind, are beginning to waver, at the least, because they see a very legal system being set up outside of the courts and in these quasi-courts, I suppose we would call them.

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Mr Lindgren: I do not think you have to apologize for a moment for introducing intervenor funding legislation. I think that was a very significant step forward in this province and it is one that I hope is continued when the legislation is reviewed. I think it is an important reform. We have to continue it.

The Chair: I suspect he knew that would be your response.

Mr Villeneuve: The intervenor funding, in some instances, is valid. I am scared of an automatic representation at every OMB hearing. I am not sure that is what we need.

But going to another subject, you spoke of monitoring and compliance. In the Constance Creek golf course situation, were there not some corrective measures done? There was some disturbance here, but could you comment a little bit on what is the situation now?

Mr Lindgren: What I did not say when I was discussing the Constance Creek wetland case was the fact that we very strongly urged the board to require the damaged wetland to be restored if the appeals against the bylaw were granted. The board did grant the appeals against the bylaw but held very plainly that it did not have the jurisdiction to require restoration. I am not sure if I accept that today, because I think very strongly an argument could be made that they did have the authority to require restoration, but let's accept for a moment that maybe they did not have the jurisdiction. I say, amend the Planning Act to say that if the land is damaged without approval, there should certainly be a requirement that the land be rehabilitated or restored to its prior condition by the parties responsible for the destruction.

Mr Villeneuve: Do you think you could effectively do that?

Mr Lindgren: My understanding is that in fact you can rehabilitate damaged lands to something resembling their former state. There has been a lot of experience with environmental restoration in the United States. Some projects have been successful, some have not been, but it is certainly better than letting the damaged land stay in that state.

Mr Villeneuve: I can see your concern whereby the damage had occurred prior to the decisions of the board and what have you, but I go back to monitoring and compliance. You quite obviously feel that is not adequate at present, based on an OMB decision that says, "You will do thus," and whatever. Could you possibly give us a model of what you feel monitoring and compliance should be?

Mr Lindgren: Perhaps I should briefly describe what I mean by effects monitoring and compliance monitoring. Compliance monitoring is simply, "Are you doing what you're supposed to be doing?" Effects monitoring is simply, "What are the impacts of what you are doing" with a view to mitigating impacts if they appear on the horizon. The suggestion I make in the brief is that the Planning Act or the OMB act should be amended to include the equivalent of section 14 of the Environmental Assessment Act, which sets out a very good and illustrative list of the various types of conditions that can be attached to an approval to, for example, monitor environmental impacts or to mitigate environmental impacts if they occur. I think it is a very good list. It is not an exhaustive list, but it is certainly a model that should be looked at.

Mr Villeneuve: Have you ever had litigation against agriculture or farmers?

Mr Lindgren: I represent farmers. I personally have not sued a farmer, but I have represented farmers successfully in litigation.

Mr Villeneuve: In cases where certain people were unsure if indeed the farming practices conform?

Mr Lindgren: I have represented farmers in situations where the farming operation has been adversely affected by the activities of other people offsite.

Mr Hayes: Can I ask a question? I have been so good all afternoon.

The Chair: I will give you one minute and that is it.

Mr Bradley: That is because you have a new moustache.

Mr Hayes: I know the previous group, the Concerned Citizens of King Township, spoke earlier about the inconsistency, the same as some of the remarks you have made, and how it makes a difference in the way they are treated. If there is a lawyer there they might be treated a certain way, and if not, there are some changes there.

Do you feel that if municipalities and government were maybe more consistent themselves and had good sound planning practices in this province, and also if the OMB, for example -- and I am throwing it all in to try to be real quick here -- if decisions were made on good, sound planning and on good environmental planning or that kind of thing, rather than if there was stronger legislation, maybe we would not get into these kinds of situations where it does get into legal battles rather than looking at the real concern, whether it be preserving the agricultural land or protecting the environment? I do not know how you are going to answer this, but maybe we would not need as many lawyers, for example, at some of these hearings if we had the good, sound planning to begin with.

Mr Lindgren: That is right, and I think I can answer this by picking up on a comment that was made by the previous group. I think that there is a very clear and pressing need for a stronger provincial role in land use planning. Towards that end, I would certainly support effective and enforceable policy statements on a variety of issues. I would support specialized legislation for the protection of certain key resources, such as wetlands, farm land and woodlots. At the bottom line, I certainly support sound land use planning being carried out by municipalities and developers. Unfortunately, to this point, that often has been not the case.

The Chair: Thanks, Mr Lindgren. We appreciate it.

CANADIAN BAR ASSOCIATION -- ONTARIO

The Chair: The next witnesses this afternoon are from the Canadian Bar Association of Ontario. Welcome to the committee. Please identify yourselves.

Mr Harbell: My name is Jim Harbell. I am the chairman of the municipal law section of the Canadian Bar Association, Ontario branch. With me this afternoon are the past chairman, Leo Longo, and two members of our executive, Mary Bull and Karl Jaffary.

Each of the four of us is a member of a committee that we put together some months ago to review the role of the OMB, knowing that it was coming under certain scrutiny, learning of the Coopers and Lybrand report and initiatives the OMB was taking, and learning that this committee was meeting and discussing it as well. We welcome the opportunity this afternoon to come before you and hopefully give you some benefit of our knowledge and our ideas in the area and to respond to your questions.

The four of us have divided what we are going to say into four parts. I am going to lead off by advising you why it is that our section believes that the OMB plays a vital role in its current capacity and what its strengths are. After that, Mr Jaffary is going to review briefly our input on the Coopers and Lybrand report and in effect do a critical analysis of it. Then we are going to follow with Ms Mary Bull, who is going to advise about some of the current problems and issues that we see at the OMB and what some of those potential solutions are, and then we are going to turn it over to Mr Leo Longo to do a wrapup on the position of the board. We hope to do so briefly among the four of us and to leave lots of opportunity to respond to questions.

On the strengths of the OMB, it is my submission to you that there are three strengths of the board that we believe are worth the continued support of the function it plays in Ontario and are worthy of resources being expended to ensure that it does stay around and play the role that it does. Those three are: (1) its hearing experience, which results in fair hearings being held across this province; (2) the specialized knowledge that the board has developed over its many years of hearings in a wide variety of areas; and (3) the strong, independent role that the board has had and played in this province.

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As I am sure you are well aware from the submissions that have been made to you, the board has a complex role. It is an arbitrator in a broad number of areas ranging from assessment, expropriation, municipal finance, and probably the most well-known area, the planning area. Within each of those areas, they do a broad range of cases. Some of them are extremely simple. Some of them are neighbours simply battling over whether one should have an extension to a veranda or front porch. Others are of an incredibly broad and expansive type of role, such as interregional planning and transit and transportation, how wetlands are going to be protected and how much agricultural land is going to be taken up by an expanding urban area, how the existing urban area is going to be intensified in its development. All of that may be dealt with in broad official plan hearings that may take many months to be conducted, and they are conducted by the same people who the week before may have been called upon to adjudicate on the veranda and maybe the week before were dealing with a municipal finance or assessment question.

So the board is a complex tribunal. It has many areas it has had to develop expertise in, and it is the submission of our group that it has in many ways well developed that expertise and should be commended for it.

Beginning with my first point on the hearing experience, it has been our experience as members of the legal community appearing before it that the board has successfully achieved the ability to hold a fair hearing, and that is not a matter that should be diminished. The importance of fair hearings to all those who appear before them, whether they are represented by legal counsel or not, is extremely important.

To our knowledge, the board has successfully achieved that. Where there is, for example, the perception of a playing field that has lawyers on one side and perhaps unrepresented ratepayers on the other, the board is extremely cautious and careful in ensuring that the unrepresented ratepayers are fully protected, that the legal issues have been brought to their attention, that they have been well explained to them and that the lawyer on the other side, if he or she happens to be the only lawyer in the room, is well under control and is not stampeding over the process.

The board has developed its rules of procedures to ensure that there is a fair hearing. They are trying to ensure that people have pre-disclosure of what is going to be dealt with at the hearing, that the issues have been narrowed and that the number of witnesses and things are known. You will hear from us that they perhaps can do a little more work in that area, but they have achieved a substantial amount of benefit in the whole area of holding a strong and fair hearing.

The second area we believe they have achieved is in the area of specialized knowledge. As you have heard from Mr Kruger, and you have seen some of the statistics, the board handles a tremendous number of cases. A number of board members, through those cases and all of the evidence they have heard over some of the many years of experience, have developed a very broad and specialized knowledge that they are putting to good use.

They are extremely knowledgeable in the expropriation, the assessment and specialized municipal finance areas, and then in the planning area, which we most often hear about, they have developed a broad provincial perspective. They can step beyond a local decision-making process, they can look at general provincial policy and they have successfully achieved implementing that policy across a broad perspective. One week they may be in Ottawa; the next week they may be in London. They have the same Food Land Guidelines, the same provincial housing policy statement in mind, and they are able to implement their specialized knowledge to broadly apply some of the broad planning policies that have been put in place, and have done so, from our perspective, relatively successfully.

The third point that we believe is a strength of the board and the one we believe is its most important is its independence, both in reality and in perception, which are equally important. The board is beyond partisanship. It is beyond any kind of local decision-making, with all of the various pressures of local decision-making caused by local councillors who have people sitting there in front of them at 11 o'clock at night at a council meeting and they have to respond. The board has more time. It can stand above that fray. They can take a week to decide something that a local council maybe only had a half-hour to deal with. They can hear full evidence. They can go off and think about it for as long as they want to and they can come back with a full written decision that presumably, after a fair hearing, will independently set out for all of those who appeared before them what the decision is.

That independent decision-making role is very important from our perspective. It allows for all persons, whether they be ratepayers, municipalities, developers, the opportunity to stand forward and say, "Perhaps in the heat of the middle of the night in front of this council, things weren't all addressed they way they should be, and this decision needs to be heard again by an independent tribunal which can think about it a little more and can set down a written decision." The independent role is one we think is crucial, and one that should certainly be expanded and should be fully supported.

Those are the strengths of the board. Perhaps to give that some balance from our perspective, I would like to turn it over to Karl to give you our review of the Coopers and Lybrand report.

Mr Jaffary: I do not know if you have read it, but it certainly terrified us. It suggested that the hearing times before the board should be reduced. While it said that could be done over the course of three years if 10 or 12 members were appointed to the board, the solution proposed by Coopers and Lybrand was rather that the staff of the board be increased from 66 to 112.

As far as we could see, the function of the board would change totally if that happened. There were to be case management officers. There was to be a large legal staff advising the board. There were to be planners advising the board. The board would not work in anything like the way the OMB now works if the Coopers and Lybrand recommendations were implemented.

I have watched hearings, for example, of the Atomic Energy Control Board of Canada. That is a board that sits in public hearings for perhaps half an hour on issues, and almost everything that is done is done by written filings with the staff, and the staff reviews it and the staff tells the board members what is appropriate. You can perhaps go and see the Atomic Energy Control Board and tell them the staff got something wrong, if you can ever find out what it was the staff had told the board, but it is nothing like the quasi-judicial process the OMB now has.

The Coopers and Lybrand people suggest that board members' decisions should be reviewed by the board's staff before they are released; they should be reviewed for context, they should be reviewed for consistency with policy. It is then thought that the board members before whom you had the hearing should sit and have a collegial discussion with all other board members before a decision is even written.

The old practice of being able to present your case and present your witnesses and persuade some human beings, who you see, of the rightness of your cause and, if you do that, having a result that works would, in our view, become a very remote kind of thing, which is not a very desirable thing. Our feeling, and here we can echo others who have spoken to you, is that what is very much needed is more members of the board who can conduct hearings and have the time to do that properly.

We have heard that a variety of backgrounds is needed on the board. That is true. But it does not do much good unless the variety of backgrounds can somehow come together and hear your case. It used to be that you got three board members on major cases and two board members on most cases. Recently, you have been getting one board member on most cases, two at the most on very serious cases.

I think the board members have been working hard, but we have been concerned about the working conditions they have been under, about the backlog that has built up and about the approach to dealing with all of that through an increase in staff and case management rather than through an increase in appointed members.

We notice that no public process for adoption, rejection or anything else of the Coopers and Lybrand report exists, but people with the same names as are described in that report -- director of operations, things like that -- are now being appointed to the board. So it seems to us as if the blueprint is that that report will be implemented, and we think it will be implemented at great cost, far greater cost than that of appointing board members -- cost in dollars to the government -- and much greater cost in the operation of the board as a whole, which we think will be diminished by all that having happened.

The value of independence that Jim Harbell was talking about is something that did not seem to the Coopers and Lybrand people to perhaps be as important as we think it is. When you look at the kinds of things that come before the board, they are usually, as one of the members of your committee, I think Mr McLean, was saying, situations where someone believes himself to have been wronged by the planning process, often a citizen, sometimes a citizens' group, sometimes a land owner, sometimes citizens who believe that a prejudicial decision has been made in favour of a land owner. But in any one of those cases, it is a situation where someone thinks that a large administrative structure has gone off the rails. If you want to continue to have a body that will enjoy public respect, it has to be a body that can put those kinds of matters right.

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The kinds of people to be appointed to the board under the Coopers and Lybrand recommendations is also significant. Their thought is perhaps three-year appointments, perhaps five-year appointments, perhaps renewal for a second three-year term. Then that person should go back into the community or somewhere and do what? We do not know. The practice in the past, of course, was to appoint people coming close to the end of a career, and they would hold office during pleasure or until retirement, and you would have perhaps eight, perhaps 10, perhaps more years of service out of someone.

If what you are going to have is middle-level people leaving one job, taking a board appointment for a few years and then going on to something else, one really wonders about the independence of the board members and what kind of work they will be doing. It certainly is going to be a job that will appeal to people who are provincial government or municipal government civil servants and can go back to that kind of job. It will not appeal to anyone in private practice who will lose his practice if he goes to the board. It certainly can create the possibility of the danger of favouritism by board members who are looking for employment two years down the road, perhaps with the very people who are appearing before them.

That whole concept of moving people in and out of the board reasonably quickly and having them essentially do what a professional staff tells them to do is one that we find disturbing. We feel the independence of the board would be better helped by treating the people who are appointed very seriously. We are certainly in favour of open appointment procedures. They used to be paid something comparable to a provincial judge. I do not know what they are paid now, but I think that parity has long since fallen away. They used to be assumed to be doing an honourable role in the community which they would continue doing until they retired, and we would like to see those kinds of traditions encouraged.

Mr Harbell: I now call on Mary Bull to advise us on some of the other areas where we think perhaps the board can use a little adjustment in its scope.

Ms Bull: As my colleagues have mentioned, we are concerned that the board be able to function effectively and expeditiously and still maintain its integrity and independence. We have all heard that the major problem of the board is a significant delay in having matters finally adjudicated -- the backlog. There are a number of contributory factors to this, but I think the most significant is the fact that the number of matters the board is called on to adjudicate has increased markedly over the past. The increase is due to the increasing number of files in the areas of their historical jurisdiction, and also an increase in the scope of their jurisdiction. A couple of examples, I am sure you know, are the commercial concentration tax area, development charges and, of course, joint board hearings. What has happened is that they have had an increase in their workload without a resulting increase in the resources available to the board.

We have suggestions for a number of solutions that can be instituted while preserving the basic integrity and independence of the board as it is today. I am going to discuss of few of these, and we will set them out in more detail in a written submission to this committee.

There are three areas I would like to talk about: first, to investigate areas in which the jurisdiction or the mandate of the board can be reduced; second, to increase the resources available to the board; third, to try and reduce the length of hearings.

If I can deal with the first matter, to somehow try and reduce the jurisdiction or the mandate of the board, there are some matters that the board deals with now that do not require public hearings. We believe that some of those matters can be delegated perhaps to a provincial ministry to be dealt with when no hearing is required. One example of that is approval of municipal debentures. We do not believe it is a useful use of the board's resources to spend a lot of time on that.

The second issue is to increase the resources of the board in order that it can deal effectively with the matters it does have jurisdiction over. As Mr Jaffary mentioned, one of the most significant ways of doing that is to increase the number of board members. This can be done by increasing the number of full-time board members and also part-time board members. They could be retired members who are called in to deal with certain backlog issues.

It is also important to ensure that the members who are appointed are strong members. By strong, I mean people who are able to understand the complex evidence they are required to hear and be able to weigh conflicting evidence, sift through it and make a comprehensive decision.

One of the ways this can be done is setting up a committee that reviews appointments to the board. Another important factor ensuring that we have strong members is to deal with the issues such as tenure, the working conditions of the board members and also ensure, as Mr Jaffary said, that compensation is adequate so that we attract those strong candidates.

There is a number of ways we feel the board can reduce the length of hearings. As you know, the board has instituted a number of procedures in the recent past to try and do this, and we believe that in some respects, there are other matters it can try, and go a little further. The first suggestion is pre-hearing conferences. Right now, the board has pre-hearing conferences where it calls all parties together, but that conference is chaired by the member who will preside at the hearing. What we suggest is that they have pre-hearing conferences chaired by a board member who will not be at the hearing. At that hearing, all parties should be present and the member will require them to identify issues that are no longer in dispute and identify the issues that still remain in dispute.

Those narrowed issues would be the issues that would be dealt with at the hearing, and they would not be expanded without the leave of the board. This would significantly decrease the length of the hearing if the issues that are truly in dispute are clearly identified.

A second method is to have routine disclosure prior to the hearing and prior to all hearings. It is not in anybody's best interest for hearings to be conducted by ambush and people having experts and reports pulled out of their back pocket at the hearing. I think there should be a requirement for all parties to disclose witnesses and reports before the hearings so that the board can hear the best evidence on all the issues and come to the best decision.

Those are just a few suggestions. We can go on with some more detailed ones, but I am not sure the committee is interested in those. But there are, in our submission, ways in which the existing board, the independent board can increase its efficiency without going to the kind of system that has been suggested in the Coopers and Lybrand report.

Mr Harbell: I call on Leo to conclude our presentation.

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Mr Longo: To be brief, I would just like to deal with one point, that we welcome the opportunity of the committee's review of the board, because if there is one thing we would truly wish it is that this committee not underestimate the board's significance or indeed its necessity. It permits citizens the right to appeal what they believe are arbitrary or ill-founded decisions of their local councils. If anything, it allows citizens to feel they have had their day in court, something they sometimes feel they are not afforded at the local municipal level. While I greatly appreciate that many members here have come from municipal government, you would appreciate that there are many instances where one side of an issue has felt that it requires a fair, independent hearing, and the board provides that.

The board also provides a very helpful check against the influence of any one group. The board therefore represents everyone; it does not represent developers solely, it does not represent ratepayers solely, it does not represent municipalities solely. It is there as a helpful check to keep the balance of legislating and power. Finally, it serves the province. It allows the minister in many instances to refer matters to the board so that a full public hearing will be convened when the facts demand it.

So we believe, if the committee understands the significance and the necessity of the OMB and its functions, it will see that many of the other issues -- having the highest quality of members, ensuring that any moral issues the board may currently be suffering under, overwork, low pay perhaps, or not being tenured -- are issues that demand this committee's attention and positive contributions to ensure that the significance of the board is enhanced.

Rather than dealing with any other issues, I know you asked questions of other deputants and we certainly have some thoughts on those. We hoped you would ask us, as perhaps one of the more significant stakeholders in that we are always in front of the board representing municipalities or land owners or ratepayers. We would like to answer your questions.

I should add that it was our intention to file a written brief to back up many of the things that we would be discussing and to elaborate upon them. I see, though, that you are already dealing with tentative recommendations at 5 o'clock. I trust the committee will welcome any written submissions that the bar association does file because we truly believe this is a matter of significance.

Mr McGuinty: I am pleased that you placed some emphasis on the matter of alternative dispute resolution. There seemed to be a great deal of emphasis in the presentation we heard earlier, which raised some very good points, on the fight itself rather than on mechanisms that we could put in place to minimize the number of issues that we have to deal with.

Ms Bull referred to -- I will use her adjective -- strong members, attracting strong members or candidates.

Mr Bradley: Do they mean defeated candidates?

Mr McGuinty: I am not sure about that, Jim. You will have to wait for your question. First of all, could you pinpoint a minimum salary that would be necessary to attract a strong candidate, and how would you define more explicitly a strong candidate?

There have been suggestions, for instance, that we should have farmers on the board, or we should have a home owner on the board. Just define a candidate or member for me please.

Mr Longo: I will leave the dollar figure to my learned colleagues, but in order to have a strong member, I would think that salary, with respect, is less important than the tenure issue. I believe that if you are looking for quality people to serve on the board, you are looking to set the right framework to attract the right person. In the circumstances of a three-year review, you are, at the beginning, ruling out many who would serve, and indeed have served, with distinction on the board because they would not be able to accept a position for that short period of time.

It is my belief that one way to ensure strong members is to create the characteristics that would attract them. A strong, independent member would have a secure tenure in order to act in a responsible and fair way. I will turn it over to my colleagues.

Mr Harbell: I will attempt to respond to your dollar question and I am going to do so in typical lawyerlike fashion, indirectly. It is my submission that it is not the dollar sum that is important, it is where it ranks. If X is making a certain sum of dollars, and the OMB members believe their role in society and in this province and the complexity of what they are doing are as important as X, then I believe they are going to want the same salary that X is making.

For example, Karl referred to provincial court judges. At one time there was a traditional relationship between the salary of a provincial court judge -- I do not know what it is at the present time -- and OMB salaries. I believe it is significantly higher than OMB salaries at the moment, probably somewhere in the order of 40% to 50% higher would be my guesstimate at this point.

I would say that OMB members believe their role is as important, their day-to-day jobs are as complex, the amount of pressure on them is the same as on a provincial court judge and therefore that would perhaps be an important role model to look at in setting the salary of an OMB member.

The point is that you might not get members of the private bar to join the OMB because of salary and, I think more importantly, because of the tenure question. The provincial court has certainly attracted a large number of well-qualified people in this province -- at least from the private bar, in our experience. Again, that could be used as a comparison. If you can attract a provincial court judge who is well qualified, then you should be able to attract an OMB member with a similar salary.

Mr Jaffary: Although the OMB is traditionally looked on as being the equivalent of the Supreme Court of Ontario -- the General Division rather than the provincial court; its subpoenas have the same weight and it is given the same regard by that court -- I think you got them at bargain rates when you paid them what you paid provincial judges, and I think you are underpaying them now.

I think there are a few characteristics a strong member has to have. He has to be able to conduct a fair hearing, he has to be able to preside properly, and there is no magic in being able to do that in terms of one's profession. It can be done; a lot of people can do it, but I think whoever you appoint has to be able to do it.

It would be helpful if they had a reasonable acquaintance with most of the statutes that have to be administered, not necessarily a lawyer's acquaintance, but they should at least have read them; and it would be nice if they had had to work with some of those statutes at some time.

I think there should be some kind of review that at least suggests people who might not be acceptable. The bar association used to do that with federal judges. I know that previous governments used to consult the previous chairman about possible appointees, and if he thought they would be awful for some reason, they would not be made. There are probably some informal procedures in effect now. They could be formalized and crystallized somewhat. I think a variety of backgrounds is, of course, desirable.

Mr McGuinty: How do you respond to Mr Lindgren's position with respect to intervenor funding?

Mr Harbell: I think we knew that question was going to come up; the four of us were attempting to discuss it.

As a group, the Canadian Bar Association, at least the Ontario branch, has not made a policy decision that we can bring forward. We are going to be meeting as a group within the next month, and we understand we have the opportunity to file a written submission. What we would like to do is think about that issue further. There are pros and cons that we were discussing among ourselves that we want to flesh out further, and we will make that a part of the written submission that we expect to file within the next four weeks.

Mr Jaffary: There are some things about it with which we are in total agreement. Some cases cry out for having the intervenors funded. We are not sure that they always cry out for having the intervenors funded by the proponent, whoever that is.

Often at the OMB the proponent is a single-home owner and it costs him a great deal to go there at all. If the intervenor is the municipality and he is going to have to pay those costs as well, the whole thing could have a tremendous backlash and keep people from going. We are worried about that, as well as about the other things the committee has raised, increasing the "lawyerliness" of it all.

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The Vice-Chair: We have 15 minutes left and we have six people who would like to ask questions. Judge yourselves accordingly.

Mr B. Ward: I will be very brief for the benefit of Mr Hayes.

We have heard today -- and I think it is a reality in my riding of Brantford, if not across Ontario -- that the private citizens or ratepayers feel the need to have legal representation at OMB hearings. I think this is a change from what has been occurring in the past. It seems to be a trend where more and more people feel they cannot present their cases on their own, that they need legal representation.

What do you perceive has happened at the OMB hearings to require or at least to create this perception among private citizens? Have things changed or are we just getting more sophisticated as we progress into the 1990s?

Mr Harbell: Perhaps I will start and I will be brief. The OMB has become more complex in its procedures, certainly in the last five years. They have put in place procedural guidelines, they have put in place cost guidelines, there have been many more motions before the board in the last five years.

Those kinds of issues are more lawyerlike issues. People perceive that on legal arguments about motions, about costs, about what items can be heard and what items are going to be dispensed with, you need a lawyer present. I think that kind of sophistication has caused the public to believe that more lawyers need to be before the board.

From my perspective, having been at hearings where I have had members of the public unrepresented on the other side of me, they have been extremely effective, and I believe that you were advised of that earlier this afternoon. From my perspective there is nobody who knows his backyard better than the person who lives there. If these people are in any way articulate, the board is very happy to hear from them and very careful to ensure that they are well protected. So I am not sure there is reality behind that perception. I think it has in part been caused by the more procedural matters that the board has put in place to try to relieve the backlog.

One of my colleagues may want to add to that.

Mr Longo: Not to repeat what Jim said, but another reason why it may appear that lawyers are required is partly due to what happens at Queen's Park. You are writing legislation which is much more complex and much more all-encompassing than existed even five or 10 years ago. Think of two matters that the OMB are currently going to be dealing with that will be very time-consuming and very complex.

One is the whole issue of the Development Charges Act. The clock is ticking and by November of this year all municipalities will have had to pass this bylaw which allows land owners the right to appeal to the OMB. That is a complex piece of legislation.

Another example is the interim guidelines that have just come out on the Oak Ridges moraine: another example of where the government is not just talking of the merits of the law but is creating more law. The more law and the more regulation you create, obviously the more complex some of these issues become and, fortunately or unfortunately, create the necessity for a lawyer.

Lawyers are accused of making the laws and then interpreting and applying them. But that is partly the Legislature's role too. Things are complex. Also, it is a recognition of the fact that we have attempted to bring the public in to the OMB hearings, and the more you bring them in the more knowledgeable they become and the more they want to be part of the process.

That is why there is a demand that they be represented by lawyers and have their consultants. It may be that we have been too successful in trying to make a public forum.

Mr Frankford: We have had some reference to the fact that the OMB does not make transcripts of its hearings, causing difficulties to citizen groups. Would you like to comment on that?

Mr Jaffary: Anybody who wants to hire a court reporter to come and make a transcript is always able to do that, whether it is a municipality or anybody else. There is a little table in every room. It is a bit of self-help. If you want a transcript, hire a reporter and pay for a transcript; and if you have to get funding from somebody, that is part of the funding you should get.

It is very, very rare for any of the parties to think it worth going to the expense of doing that. If any of them ever do, then they all get copies of it. The board does not think it is part of its mandate. You have Hansard people here, you know what it costs. It would add to the costs of the board's work significantly and I do not think there are many cases where it would help.

Mr Hayes: I have a short supplement to that question. I guess people, individual citizens or groups, sometimes feel intimidated if they are not represented by a lawyer. I guess the lawyers can use certain pieces of -- I should not say legislation but maybe terms -- legal terms that the individual just does not automatically understand. I think that is probably part of their concern.

In my experience on municipal council, I have myself seen inconsistencies in the past. Sometimes I was in one particular one and I thought I was really in a court of law, and that was as a member of that municipality. I just wanted to make that part clear.

Mr Jaffary: I would suspect that a great majority of the present board members would really resist anything like that happening, would make lawyers use simple language, would make sure people felt comfortable. But you know, it is a personal style of whoever is presiding, and some will simply do that better than others. Many of them do it very well.

Mr Hayes: That leads me to another very brief question, Mr Chair. Ms Bull, you mentioned about the pre-hearings. I guess they are more for kind of fact-finding and just to see whether there are real, legitimate appeals, whatever the case may be. But one of your suggestions is that the person who goes from the board for that pre-hearing should not be the same one who hears the final meeting.

I would like to question you on that because getting back to the other part, where it is not really recorded and you have someone who is going back and making a report to another member of the OMB, what happens when they go back and one of the parties says, "That's really not what we presented at this particular one"? Is there a danger of that? Because if I was going to sit into a meeting and be the person who makes the decision on which way it should go, I would think I would like to be in there from day one. I would like to hear you could elaborate on that, please.

Ms Bull: One of the problems in getting the parties to clearly identify the issues in dispute and the issues not in dispute is that if you are there before the member who is ultimately going to preside on the hearing on the merits, you are unlikely to be as candid about which issues are very important to you and which issues might not be important. You are more likely to throw in the whole kitchen sink in case one of them turns out to be significant for you. If you are there with a member who is not going to be presiding at the hearing, you can say candidly to that member, "Look, ground water really is an issue for my client," and you can hive specific issues like that off the table and just deal with the issues that are really in dispute between the parties. I think it is similar to the process they use in the courts for the pre-trial process and I think the member deciding writes up a memorandum of the pre-trial conference, setting out the issues that have been identified as still being in dispute.

Mr Harbell: I think perhaps if I could just add to that, that similarly the board members would be concerned that they could not be tough, that they could not be frank, if they knew they were going to have to hold a full and fair hearing two or three months from now. They would not want anybody to accuse them of any kind of bias. They have to stand back from it two or three months from now and say, "Okay, I've heard everything." They are really quite reticent early on about starting to show their hand as to what they think is an issue, what is not an issue and say, "Look, no, don't do that. Let's cut this hearing down by a couple of days because I don't think that's an issue." They are not going to do that if they have to deal with the hearing three months from now.

Mr Bradley: The interesting observation I draw from this representation is that I really do not see how we are going to get away from appointing more lawyers to the Ontario Municipal Board if what you are saying is true, but I will let that one go and look at the long-term appointments situation again, because that has been a matter of great contention. Many of the people who have made representations have wanted shorter-term people.

If, as you say, it is advantageous to avoid the circumstance where a member of the board may make certain decisions to be reappointed to the board -- that is suggesting that the person is a human being and may wish to be reappointed to the board so tends to make decisions which would please the provincial government, or tends to make decisions which would please a potential employer when coming back into the workforce. On the other side, how then do we keep in check -- that is a dangerous phrase as well when we are talking about independence -- how do we keep in check the people who, when appointed for life, which "at pleasure" is, in terms of their becoming lazy, arrogant or incompetent?

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Mr Longo: If I could start by assisting the committee and its research officer, our parent organization, the Canadian Bar Association, has done a very thorough investigation of the issue of independence of federal tribunals and has dealt with the issue of tenure and indeed that very issue as to how you have a check. I think it was Mr Wessenger, the parliamentary assistant to the AG, who mentioned about performance evaluations and what do we think of them.

It is very hard to provide a comment as to what we think of them until we see what the performance evaluation is. I would think some performance evaluations might serve a very helpful purpose. Others, however, may be written in such a way as to ensure that the person being reviewed knows he has to toe, if you will, the party line to maintain his position. Certainly we could not endorse that. So we believe there are existing frameworks with respect to judges who are at pleasure but can be removed under certain circumstances.

Comments in this document here, which are too lengthy to get into now, provide the committee, I believe, some assurance in balancing recommending tenure due to independence but also having that ability to have a check and make sure that a member who is not performing is one who can be called upon to perform or be removed. But in my personal opinion, the independence of the member is the overriding goal to best serve the public interest.

Mr Jaffary: The most irascible ones usually become irascible after about 10 years, it seems to me, so if you can get them at a point where by the end of 10 years they are going to retire, that is sometimes a help. I am thinking more of judges here than I am of OMB members, but when they have been around a long time they are often a little touchier.

Mr Villeneuve: To the bar association, thank you for making a very good presentation. The OMB tends to be an area where politicians at the municipal and provincial level like to dump the hot potato and have the board resolve it. That is fine, except it creates a terrible backlog. We have instances where one farmer is willing to sell to another and keep a retirement home and the Ministry of Agriculture and Food says, "I'm sorry, your buildings are too close to the house," and all of a sudden we are into an appeal which is 16 to 18 months. Politics are being played.

Could you tell us maybe where we could cut off some of the more frivolous things that the OMB has to decide on? You know, as a former real estate appraiser, I have been before you on a number of occasions and some pretty meaty stuff goes on there. But I also see some areas where there is not a lot of anything going on. Could you tell us, maybe at the assessment end or the assessment appeal end, where you feel we might remove some of the minor variances type of thing? Where can we take away some of the workload so it becomes manageable?

Mr Harbell: Leo, you are nodding your head. Do you want to have a go at that one?

Mr Longo: I was just going to say I would not take away the minor variances role, because that is a significant role. The committee should recognize that there are existing powers in the Planning Act right now on minor variances, on consents, on official plans and on zoning bylaws that allow the municipal board to dispose of a matter without conducting a full hearing when it brings the person in who has objected to determine if it is frivolous or vexatious. That power exists. Now the board and sometimes the courts have put limits on how far the board can go in exercising that power, but that power is there and perhaps if it were more often utilized by the board itself or by municipalities, you might be able to shorten it.

I think the board membership right now is 31 and they just appointed two, I think on August 1. Three years ago I think there were 37 or 38, when they had a lower case load and were able to manage around four or five. So it may be nothing more than coming up with some more members rather than staff people, and you will find the hearing schedule will start collapsing, because you have more bodies to handle more cases. But there are mechanisms now that are in place which I think the committee should not underestimate. Just because they are little-used does not necessarily mean they are not appropriate tools. It may just be an education system to get more lawyers and municipalities to use them.

Mr Jaffary: Another thought we had was that while we think there should be appeal on consents in minor variances, you might have almost two levels of board members. You might have part-time board members, and they might sit in different regions; and you might have two weeks in Kingston where you clean up all the minor variances from eastern Ontario in a shot, and something where you would not have to wait for more than a month for that kind of hearing. So you might take some of them at a lower level of hearing.

Mr Grandmaître: One short question, again on the workload. I have said this before and I told Mr Kruger that personally I think the mandate of the OMB is too broad. They stick their nose into just about everything, and I have had some experiences with the OMB. I am not here to chastise them; personally I think the provincial government is responsible as well because we are loading these people -- like the concentration tax.

Do you think a breakup of its mandate would make the OMB much more acceptable than it is right now? Going back to the perception, personally, I think the OMB has lost a great deal of faith among our citizens. Do you think by breaking up the mandate we would improve the perception?

Mr Longo: I am not an apologist for the board but, with the greatest of respect to Mr Grandmaître, the OMB does not stick its nose into anything that the province has not first told them it is their business to look at. In fact, with the greatest of respect, the OMB always tries to stay within the jurisdiction given to it rather than go beyond its jurisdiction, so if it is sticking its nose in, it is because the province in its wisdom has decided that it is the most appropriate body to do so.

Secondly, the board probably has more than 100 acts plus hundreds of private municipal acts. They do have a very broad mandate. It is always open for the province to say, "Let's review the mandate." But you know what? Somebody is going to say, "If the board isn't going to do it, who is going to do it?" And you know what? The board, being the senior administrative tribunal in this province, I think, has shown itself throughout its history -- and I think it is proud of it -- to have earned its stripes to deal with many varied matters in a competent way.

So yes, you can always review its mandate, but if you do, sir, I would ask that before you change it you go and consult with the public and all the municipalities and the ratepayers and the land owners to ensure that, whoever you are giving it to, they are pleased with the system. Because that drastic a change should only be done with public consultation.

Mr Harbell: The specialized knowledge that the board gains is very useful between the different areas that are within its mandate. For example, assessment or expropriation have historically been dealt with by other commissions and then were brought under the OMB. It has been very helpful, though, that they have been brought under the OMB, because each of either expropriation or assessment involves a significant review of planning issues, of highest and best use, of what is the best planning for those lands before you determine what their value is for expropriation purposes or for assessment purposes.

If you get a significant case, for example, in either of those areas, by being able to put a board member who has perhaps done a lot of planning cases together with somebody who has financial expertise, you have a stronger board than you might have if you broke up those particular matters back into specialized tribunals. So there is strength in that collective whole that they have put to good benefit over the past few years.

The Chair: Thanks, Mr Harbell and others. We appreciate your appearance here this afternoon and your testimony.

Mr Harbell: Thank you for giving the opportunity.

Mr B. Ward: Just a point of clarification: You said the written brief would be forthcoming.

Mr Harbell: Yes.

Mr B. Ward: How long would that take?

Mr Harbell: We expect within four weeks, and we are told that works for the committee's timing.

Mr B. Ward: Four weeks?

Mr Harbell: Four weeks. The Canadian Bar Association has a rather complex procedure that we have to go through to get you a written brief.

Mr B. Ward: Bureaucracy?

Mr Harbell: I am sure you will understand and sympathize with us on that.

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JOAN COXHEAD

The Chair: The next witness is Joan Coxhead, a private citizen who has asked to appear before us and has submitted a brief in writing. Ms Coxhead, welcome to the committee. I assume the clerk advised you we are talking about the general issue. We do not see ourselves as a court of appeal in respect of any decisions taken by the OMB that might have impacted upon you. We are looking at the broader issues with respect to the operations of the OMB. You have an opening statement. Please proceed.

Ms Coxhead: The statements you have in front of you are for background only. What I have today you do not have copies of. I am going to speak from the perspective of a layperson rather than a lawyer. We have been sitting here listening to a number of lawyers. I have appeared before the OMB on two occasions as a spokesperson. In neither case did we have a lawyer. The first occasion went smoothly. The second occasion was a real eye-opener and my intent this afternoon is to give you some idea of the experience that I personally and the people who were supporting me had in front of the OMB. We came there with the expectation of getting our questions answered, questions which neither the city nor the developers were willing to answer.

There was no transcript. Therein lies a lot of our problem. Without the transcript we were unsuccessful in proving that the hearing was not conducted according to established guidelines, guidelines that should have provided us with the opportunity to present our case, to have argued the merits of our case and to have our questions answered. Yet even without the transcript, the OMB has defended the actions of the hearing chairman and dealt harshly with those of us who dared to object to the manner in which we were treated.

There is a double standard here. The letters written by the chairman of the OMB, a person not present at the hearing, show how he defended the hearing chairman and condemned those of us who dared to object to the treatment received. At the hearing we were threatened with costs and we were denied the right to have our evidence considered seriously because it was not presented by experts. We were chastised for appearing without legal counsel. The chairman allowed and encouraged the lawyers for the developers to attack the character of the appellants. This was done by both his word and his actions.

As the appellants, we were subjected to the openly expressed bias of the chairman. Our presentation was called gobbledegook and our actions cavalier despite months of preparation and supporting evidence. We were treated as individuals and our support, which numbered in the hundreds, was not acknowledged, whereas the support of the developers was accepted as being overwhelming. Our evidence showed otherwise, but it was not accepted.

The point, however, was not to demonstrate popularity but to have the issues addressed. We were insulted, ridiculed, reprimanded. We were subjected to the chairman yelling at us, shaking his fist at us and pounding on the desk. Despite all this we maintained, outwardly, our composure and behaviour at all times. The inappropriate behaviour of this chairman was such as to discourage any citizen from ever attempting to make a presentation to the OMB.

In a report addressed to this committee, dated March 1991 and accompanied by a letter to the Ombudsman's office dated September 1989, we presented details of the manner in which we were treated and we provided quotes as to the disparaging remarks he made. One of our supporters who was there took notes during the proceedings, so we did have some quotes.

The decision itself shows the chairman's contempt for the appellants and his bias in favour of the developers. The decision focuses on the character of the appellants as perceived by the chairman rather than the development issues. Where the development issues are looked at, the assumptions made by that chairman as to statements made in the written presentation just do not match the material we presented. We are still left with all the unanswered questions. In fact, we prepared a 10-page report on all the unanswered questions, questions that the developer will not answer, the city will not answer and neither did the OMB.

The answers to many of those questions could show that approvals of the development violated both the Planning Act and the Municipal Act. Our written presentation tried to address these matters, but the chairman was unwilling to listen to this presentation and our attempts to get answers through cross-examination were totally unsuccessful. We were competing with planners and lawyers, trained professionals who evaded the issues and concentrated instead on attacking the character and integrity of the appellants. The chairman allowed the attacks and encouraged them.

We were there to discuss development issues. They were avoided. We have since learned that lawyers tend to try to discredit their opposition as a way to avoid the issues. However, we might have expected the chairman to have put a stop to such attacks. To allow the lawyers to continue in this manner would have been bad enough, but to encourage this behaviour by agreeing with them and by offering his own uncalled-for remarks was very discouraging and intimidating.

The decision reached was that the appellants were guilty on all counts, although we were not even supposed to have been on trial. The developers got their approvals but the issues were not addressed. Another report was written -- the Ontario Municipal Board Policies and Procedures Review, of which you have been provided with a copy -- that provides details of the errors made by the chairman in his written decision. He made assumptions when there was no evidence to support those assumptions. In fact, in many instances the appellants' written presentation presented evidence totally at variance with the material the chairman attributed to us.

John Kruger stated before this committee that decisions had to go through a process of peer review before being issued. It is beyond our comprehension how this particular decision could have passed such a peer review. Nor are we able to understand how the co-chairman could have co-signed that decision. The co-chairman attended the hearing as a member of the board, but he appeared to have been there only as an observer. We wonder if he was there for training purposes and without authority to question the conduct or expertise of his superior. Had he done so, might it have been detrimental to his career? We do not know.

Peter Howden, also of the OMB, appeared before this committee. He stated: "I think it is the board's job to make sure that those ratepayers who come and raise those points get them answered. If they cannot be and they are significant, then the developer loses." Our questions were not answered, but the developers won. John Kruger stated before this committee, "I see it as a board where the average citizen has a right to come without legal counsel to be heard." We were denied that right.

When we wrote to the chairman of the OMB, the result was further condemnation for daring to question the expertise of a man of that chairman's standing. An "investigation" had been conducted, but it appears to us that the goal of this investigation was to protect the chairman and the OMB rather than to look at both sides of the story and to reach the truth.

A North York group had also received similar treatment as we had from that same chairman. For that reason, several representatives from that group chose to attend part of our hearing. They observed that we were treated equally as badly as they had been and they too wrote a letter of complaint. The reprimand we got from the chairman was totally unexpected and unwarranted. Since then we have been in touch with another group which was subjected to the same outrageous treatment, so we know that there are other groups who have experienced this.

It appears that this is not unusual behaviour for this particular person, regardless of whether the citizens have legal representation or not. It would be hard to believe that all OMB chairmen treat citizens in such an offensive, discourteous manner. In fact, we are personally aware of at least one OMB chairman who was willing to listen to the citizens. That was the first time when I went to the OMB. We were treated with respect and we were listened to.

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Unfortunately, though, through contact with others who have appeared before the OMB, regardless of who the chairman is, we can only conclude that to appeal council decisions to the OMB requires more time, money and total commitment to the cause than most private citizens or privately funded groups can afford. With all the obstacles to be met, even before a hearing, why would citizens want to subject themselves to the potential harshness of a hearing? For those people who might want to follow through, most would not have sufficient time, money or energy left to appeal a council decision, let alone to fight an unfair OMB hearing, and of course they would need the expertise to do battle with the bureaucracy.

Because we believe so strongly that the developments received approvals they were not entitled to, we have continued the battle despite the roadblocks put up by the political system, the roadblocks being that an agency can go through the motions of a planning process without really giving consideration to the evidence being presented and then no one being willing to take the responsibility for the consequences.

In our efforts over the past two years to have someone address these problems, the first problem being the chairman's behaviour and the OMB's response to that and the second problem being to get answers to the questions raised, we have had no success. The response has been that it was not within the jurisdiction of the agencies contacted or that the planning process was followed and therefore we have to accept the outcome.

We understand the OMB is making attempts to reduce the number of cases coming before it and to shorten the time involved in each case. We think it has already found the formula to meet that goal. Whether or not the resulting decisions are fair or just does not seem to matter. But this does not meet the criteria under which we believe the OMB is supposed to operate.

The planning process failed both at the municipal level and at the provincial level. No one is willing to accept the possibility that the concerns raised by us could be legitimate. The OMB failed in its duty to the public. This conclusion is not the result of the decision reached, but rather the manner in which the hearing was conducted and the manner in which the decision is written. Based on reading Hansard and the comments made by John Kruger and Peter Howden, it can be concluded that what they believe happens during a hearing and the reality of the situation are two different things.

I have a number of recommendations.

Transcripts of major cases should be made, and once citizens are granted a hearing, it is to be expected they have legitimate grounds. Therefore, the citizens' questions relating to the issues must be answered. Greater effort must be made by the OMB to try to understand the point the citizens are attempting to make. Peter Howden of the OMB acknowledged before this committee that citizens may have difficulty competing with planners and lawyers.

The chairman must fulfil his duty by ensuring that the issues are addressed and that the opposition not be allowed to attack the appellants on a personal level. The chairman must follow OMB guidelines and not set his own just because he does not agree with them. Citizens have the right to expect that these guidelines will be followed. Transcripts would ensure that members would not stray too far in this regard, or if they did, they would have to account for their actions.

Chairmen must reserve their comments regarding the issues until all the evidence is in. Personal comments are not appropriate at any time. To show bias is not appropriate at any time. Transcripts would aid in monitoring this.

Pre-hearing mediation might benefit all parties.

There should be greater consistency in decisions. At present, it appears that the type of decision one gets could be related to the chairman hearing the case.

Citizens appearing without legal counsel must be treated with equal consideration as those who do have counsel. Otherwise, many people without the resources to pay for such counsel would be denied their rights. According to statements made by Mr Kruger and Mr Howden, this is the way things are, but our experience indicates otherwise. As citizens have already paid their taxes to have planners look after matters of development, citizens should not be expected to have to provide more dollars to hire lawyers and expert witnesses to appeal matters. If the grounds for appeal are legitimate and a hearing is granted, then we would suggest that something went wrong at the municipal level.

The reality of the situation appears to be that the city can do whatever it wants and get away with it. Very few citizens have the knowledge to determine if these actions meet acceptable criteria; that is, the Municipal Act, the Planning Act, etc. Citizens should not be penalized for this. It must not be left to the citizens to attempt to compete with city planners in resolving such matters, nor should citizens be expected to compete with development lawyers. It should not be the responsibility of citizens, lacking in planning expertise, to monitor the actions of city planners or council, but that is the planning process and the citizens are at a distinct disadvantage.

Considering that the particular chairman who heard our case is a vice-chairman of the OMB and that his actions are so far from the guidelines, we are at a loss.

Do you have any questions?

Mr Frankford: Just to give you a chance to elaborate a bit on what you said about transcripts: You may have heard my question to the previous group.

Ms Coxhead: Yes.

Mr Frankford: Would you like to comment on their response?

Ms Coxhead: First, private citizens do not know the ins and the outs. We ask questions before we go down, trying to find out what is expected of us. We took it for granted that there would be a recording. We should never have assumed anything. That is one of the laws of nature: Never assume anything. We made a mistake there. We were rather surprised that there was no transcript. Today I heard that had we wanted, we could have had it. It would have been costly, and any money for this has come out of my pocket and the people -- Dennis Piper, who is my partner in this. We just did not have that kind of money, even if we had had the opportunity. We thought it was part of the process.

Mr Frankford: You have had some correspondence and some people who were witnesses have raised questions about the way you were treated. What response have you had?

Ms Coxhead: The response has been, "It's not in our jurisdiction."

Mr Frankford: So their evidence has been discounted, has it?

Ms Coxhead: They are all passing the buck. It is just going from one desk to another, and we are getting our knuckles rapped for daring to even challenge.

Mr McLean: Have you had any written replies to these letters you have sent? Have you had written correspondence back from Mr Kruger?

Ms Coxhead: What letters are you referring to, sir?

Mr McLean: There were some you had written here.

Ms Coxhead: I have written many, yes.

Mr McLean: You wrote one to David Warner, you wrote to David Peterson and I am sure you wrote to Mr Kruger. I would be sure of that.

Ms Coxhead: Oh, yes.

Mr McLean: Have you ever had any correspondence back from any of them?

Ms Coxhead: The answers come back. David Warner has been supporting us, and he has been encouraging us. I believe it is through David Warner that we are here today. Mr Kruger has answered, yes. We get answers. We get responses, but they are: "You had your day in court. The planning process was followed. Forget it. Carry on with your life."

Mr McLean: I would have liked to see those responses to some of the ones that were written, how they are defending themselves. I have no idea. All I am hearing and seeing is one side of the story. I do not see letters in reply, for them to say that they were right or that they were not wrong.

Ms Coxhead: I am sorry. I could provide those at a future date. What I am saying now is that I have been told basically, "The planning process was followed and you have no grounds for complaint."

Mr McLean: You have certainly done a lot of work on it.

The Chair: Thank you very much for appearing before us, and certainly we will take your testimony into consideration when we make our final report.

Members, as our agenda indicates, the next part of the meeting is devoted to closed session discussion. I am going to have to ask the public in attendance if they would kindly leave the room. We would very much appreciate it.

The committee continued in camera at 1701.