CONTENTS
Tuesday 22 January 1991
Agency review
Ontario Municipal Board
Adjournment
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)
Silipo, Tony (Dovercourt NDP)
Stockwell, Chris (Etobicoke West PC)
Waters, Daniel (Muskoka-Georgian Bay NDP)
Wiseman, Jim (Durham West NDP)
Substitutions:
Fletcher, Derek (Guelph NDP) for Mr Hayes
Murdoch, Bill (Grey PC) for Mr Stockwell
Perruzza, Anthony (Downsview NDP) for Mr Wiseman
Clerk: Arnott, Douglas
Staff: Pond, David, Research Officer, Legislative Research Service
The committee met at 1009 in committee room 1.
AGENCY REVIEW
Consideration of the operations of certain agencies, boards and commissions.
ONTARIO MUNICIPAL BOARD
The Chair: Come to order, please. We welcome our witnesses, John Kruger, chairman of the Ontario Municipal Board, and Anna Fraser, who is a member of the board. Perhaps, Mr Kruger, you could identify the other member.
Mr Kruger: That is Doug Colbourne, who is the vice-chair of the board. We have one other member, who must be tied up on a hearing and who may be a little bit late. It is just the normal hazard of the board. That is Peter Howden. He was to be here. He has not yet arrived.
The Chair: We were talking about this yesterday, about the length of opening statements. We are going to try and accept a norm of 10 minutes, but Mr Kruger and I had a discussion prior to the beginning of the meeting and he indicated he had an opening statement which would last no longer than 20 minutes. So if members have no objections, I am going to allow that to occur. Hearing none, Mr Kruger, the floor is yours.
Mr Kruger: I thought what I would do with the opening statement is merely give you some type of concept of what the board is, some of the difficulties that we face. You have the curriculum vitae of the members, so you know what the backgrounds of those members are. There are 30 board members and one chair, and our present complement is 29 plus 1. Some 60% of the members of the board are lawyers, several having a QC.
If I might, this is Mr Howden, who has made it.
We have a couple municipal engineers on the board. This is in background. There are some chartered accountants. There are planners. We have two members of the board who have dual degrees, both land use planners as well as law, and all of the members have some considerable municipal experience. We have an architect, one person from the educational field and one person who is from the farm community, actually ran a 700-acre dairy and beef cattle farm and was a graduate of the University of Guelph. So there is a mixture of these people on the board and they all come from a variety of backgrounds.
Of the members, 19 were appointed at pleasure. I should tell you what that is about. Before the previous government came into power, all members were appointed at pleasure, because in many ways our members come to us when they are in their late 40s or 50s and it is a career choice. We are an operational board and we have an enormous workload and this is probably the final point of their career. So they came to us and they were at pleasure and of course in many ways they were very similar to civil servants. They get pensions and all of those things.
When the last government came into power, they were all appointed at a three-year level. They started getting into a three-year cycle. The difficulty was that many of them did not realize that. They thought they were going to be at-pleasure appointments. That is some difficulty that the board now has and we have representations before the government to get this sorted out before we bring more members in. We have to make up our minds what in fact the member should be.
In the three-year appointments we have started to get visible minorities on the board. There are four visible minorities. We have women on the board and in fact, two of those women are the ones with the joint degrees. The board is starting to reflect the community out there, but it is very difficult to get members. Our best source of members is from the private sector or from the legal departments or the planning departments of municipalities. In fact, we have obtained most of the visible minorities from that particular source.
There are member issues which are before us and which we have put before the government. We need to know what is going to be the status of the new members who are hired and we are coming up to the point where we are going to need six new members. We are in dialogue at both the political level and Management Board of Cabinet on that. There is also the question of salary. When most of the members came forward at the three-year appointments the salaries were competitive, but now the salaries in the municipalities and in the private sector have outstripped that. This board is different from other boards where, as I say, it is a career and they are like civil servants. So there are some of the member issues.
When I became the chairman of the board, the first thing that we called for was a consultant's report. We saw that there were difficulties. This was recognized by the board and that produced this report. It was done by an outside consulting firm, the Coopers and Lybrand group, and it took a look at every single thing the board did.
There were some criticisms of that. They said: "Some of the methods and procedures you've got, you've got a terrible backlog. You've got to change some of your procedures and the way of the past. You have to change some of these things." They also highlighted that the backlog was not going to go away and in fact it was going to get worse.
It takes 18 months to train a member of the board. They have to be trained and they have to understand rules of practice and procedures and so forth. Being a lawyer is of some help, but if you do not have skilled municipal experience, it is not much of a help. So it takes 18 months to get them on stream, and within the next two years we are going to have six members retire. One member retired on 31 December and has not been replaced. I have another member who will retire in June whose time is up. I have another member who retires in September of this year. I have another member who will probably retire in June because the 90-and-out has the pensions. I have a member who will retire early in 1992 and I have one other member who is ill and we are not too sure if that member is not wanting to retire towards the end of this year.
We have suggested to the government that we want to increase our complement of 30 so that we can get these people trained and then within two years we will be back to 30. We are going to lose, on average, 16 years' experience in these members, which is quite a blow to the board. In total, if I add up the experience that they have had in adjudicative work, it is some 97 years, so we are very concerned about that as we go forward. That has caused a backlog, not just the members alone but the weight of the pressures that are upon the board.
Some of these figures might not have turned up in your review. On average, we receive some 6,000 requests for appeals in a given year. I took some figures off as of 31 December to give you an idea. There seems to be some thought out there that in a time of recession the board's workload goes down. The board's workload is stabilizing and is not going down. The mix within that workload is rather interesting.
Back in December 1988, which should be the time people would consider the highest point, we had 266 assessment appeals; that is, waiting to be assigned, not within the system, just waiting to have a hearing date. As of December of this year, there were 347. We had 125 zoning bylaws before; this year 214. But this is the one that does not surprise us, because it happened in the last recession: Consents were 154 and to now, unassigned, 508. What happens in a time of recession is that people do not buy new homes, they try to fix up their existing homes. In the farming community, this is the pension plan of farmers and they want to divide off their land. Every one of the consents requires a hearing. There is no way around it. Variances are the same thing, from 133 to 352.
Per member, we were clearing between 60 and 65 hearings a year. You must remember, a hearing can be half a day or it can be 20 or 30 days. We are now clearing 75, so the productivity per member has been increasing and that is partly due to their experience.
The backlog presently exists. It takes 13 months to get a hearing before the board and that is increasing. In this time, what has happened, although the numbers of appeals have stabilized, is that the appeals are getting longer. There is hardly an appeal where the environment does not now enter into it. We are hearing that even on consents. For example, we have in the system at the moment 1,713 assessment appeals. That involves some 37,000 complaints. So the workload on the board is enormous and we have to find better ways of handling this internally and administratively. We have to look at things like alternative dispute resolution, we have to look at things like mediation and all of these methods, rather than just put on more members. That is what we are going to attempt to do.
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To be of help to your committee, I took a look at the next two weeks of the assignment of our board, beginning 28 January and for the week of 4 February finishing on 8 February. This is what is before us, and I would say that this is not an extraordinary time. You must remember a hearing time is only one very small part of what the board has to do. The board members have to review the file and listen to the evidence during the hearing. Then they have to go back and weigh that evidence, adjudicate it and produce a draft decision. That decision has to go through a process of peer review before it is ever issued. So let us say a half-day hearing could turn into work time of about two actual days when you get through.
One of the things we give priority to at the board is affordable housing. In the next two weeks this is what is going to happen, these are members who will be assigned. We have five days of hearings scheduled for Vaughan affordable housing, five in Hamilton, 14 days will begin in Newcastle, 10 in Toronto, five in Etobicoke, three in the town of Arthur and seven in Wawa. So the members go all over the province.
That is 49 days of hearings. That is going to tie up 14 members, because what is occurring in affordable housing now is that we have two members on every one of these hearings and we get it from both sides. There are always difficulties with the communities where this has to go in. That is generally our experience. I should not generalize, but I would say in most cases there is some difficulty. If we turn it down, and we do turn them down if it is not good planning, we get it from the advocates. We get it from both sides. But that is 14 members.
At the same time that is going on, we are starting 20 days of hearings in Alliston on official plan and zoning bylaws, 15 days in Barrie and 10 days in Blind River. That is going to be in French. We have two members who can take it in French. That is an amalgamation of an unorganized territory, and that has come to be a very political thing up in that part of the country. We have three days of hearings starting at Wasaga Beach, on the conflict between Wasaga Beach and the county regarding their waste disposal facility, and we have 10 days of hearings in the township of Sydenham on official plan. That is another 5 days and we have 10 members tied up on that. So I have 24 members who are going to be tied up in the next two weeks doing work like that.
When I came on the board there was a little do for the retiring chairman. A person came up to me and said, "My name is Thomson." I said: "That's interesting. I have a Thomson on my board." He said, "That's me." I have never seen the man, because he is involved in this hearing on toxic waste down in the Niagara area. Mr Bradley would know all about that. We have not seen him for a year and a half and we do not expect to see him for another year and a half. He writes to us to let us know everything is all right. Every once in a while we phone him, but on these joint board hearings it is like an abyss. I lose these people; they are gone for a period of time.
The board has an enormous workload in front of it, very controversial, and I will just go through some of them. There are the railway lands. We are just finishing the Ottawa-Carleton official plan; that was 60 days of hearings. That will finish up at the end of February. We have joint boards coming up. There is a hydro transmission line in southwestern Ontario, which is going to be a very long hearing. I have the Etobicoke hearing coming up in October; that is going to be a very important one, on the lake front. At this time of year we are getting involved in things such as the ward boundaries in municipalities. This is always controversial. We started off in Mississauga with three days and we are going to have to go back for another five days.
The board has in front of it -- all this was outlined in the consultant's report, which said, "It's not going to get any better, so you have to get your members on, you have to get them trained and you have to improve some of the way you do business."
We have put forward our budget. It is in the process through the various provincial levels right now, and we have expectations that it will indeed be covered. If we get the resources we are hoping to get, we should be able to reduce the backlog from 13 months to, by the end of this year, about nine. By the beginning of the next fiscal period we might be able to get it down to six from nine.
One of the problems we are going to have is the new members. We are trying to go to part-time members. Part-time members would have to be ex-board people, who have been on the board, who know our methods. We can bring them on stream almost immediately. One of the difficulties is whether they are going to be treated as new members. Will we have to go through the process which finally finds its way before this committee? That is one of the difficulties.
We see no problem with the new board members. We will work that out with the minister. We have some members who are coming up for reappointment and some of these things are of concern to us and we are talking to the minister about that.
The state of the board is that we are making our best efforts. Our members are working very hard. Their productivity per member is increasing, but it is just the reality. Our hearings are getting longer and longer in numbers of days. What a lot of people do not realize is that anything that touches land use gets into socioeconomic questions, for instance, when Mr Farnan, the minister, announced he was going to have group homes rather than incarcerate people. Fine idea; nothing wrong with it. I shuddered, because every group home hearing -- you can imagine what it is like in a community. If it is 12 days of hearings, it is two days of evidence and 10 days of emotion. One of the members sitting here can tell you all about that up in Sault Ste Marie, where we have just been through that.
That gives you some ideas that might not have come in your research papers. If there are no other comments from my members, I am in your hands. Be kind to me.
The Chair: As always. I will open it up for questions and comments.
Mr Bradley: I have a question about the rehearing of matters that have come before the board. I think many people in Ontario were probably under the impression, unless they were involved in municipal law or had been a proponent or an opponent in the past, that once the board had heard an issue and rendered a decision, the decision of the board is final, subject to cabinet overturning such a decision, if cabinet can in certain cases, or it going to court for some reason for judicial review. How often do we have circumstances where cases are reheard because a sharp lawyer is able to convince the board that there was something wrong with the initial hearing?
Mr Kruger: If I might amplify on what you said: If it is under the Planning Act, there is generally no appeal to cabinet unless it is a statement of provincial intent. The appeal mechanism is under section 42 of our act, which says the board can vary any decision. That generally comes to myself, and I discuss with some of the vice-chairs, or it can go to court on questions of law.
On certain other matters, there is a cabinet review. If it is a matter of declared provincial interest; a case in point will be the Etobicoke hearing which will go forward. When I first came to the board, which is not that long ago, about nine months ago, we were having not too many. There has been an increased frequency of requests. This is due, as we see it, to three points.
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First, on the consents and variances, I am getting more and more section 42s or requests for a rehearing. If people have to wait 13 months to be heard -- an appearance before the board is, for the average individual, a big thing in his life -- then if they are turned down, some of them get very angry if for some reason they do not win the case. There is always a winner and loser before this board. We are an adversarial board. We operate like the courts. I have been getting quite a few of those. Of every 20 requests for a rehearing, I would say maybe one will turn into a rehearing. I have had in the last nine months about three that actually had to turn into a rehearing.
There was one in St Catharines that came up, and that is probably what motivates the question. I think that was a proper one for a rehearing despite the fact that the ratepayers were quite upset about it. There was a question about it, but there are not that many. However, on the consents and variances, it is coming through.
We also get a few requests on zoning bylaws; a few, not that many. There was one that came up recently; it was an environmental question where a school was to go into a certain area. The Ministry of the Environment came along and said, "That pond is going to cause all of the smell to come forward," and so forth. We particularly heard the evidence, and based upon the evidence given to us we had to turn it down. That came through for a section 42. We took a look at that and reviewed it, but then we listened to all of the points made by the solicitor and decided it should not be done.
There is another thing I should point out. There is another appeal from us, and that is to the Ombudsman. If people are not satisfied with what we do, it goes to the Ombudsman.
Mr Bradley: What criteria are used to determine whether there should be a rehearing?
Mr Kruger: The facts of the case. We take a look at the decision. We take a look how the decision is written. If the points are made from the opposing solicitor, they outline what is their submission and we take a look at all those points and try to determine from that if there is validity.
The board, as a practice, tends to lean over backward, particularly where ratepayers are involved or the community is involved. If there seems to be any question about an error made in the decision that was rendered vis-à-vis planning, we will then put it out for a hearing.
Mr Bradley: In your evaluation, recognizing that you have been there a relatively short time -- you may have discussed this with others -- are some lawyers more successful than others in obtaining rehearings?
Mr Kruger: No.
Mr Bradley: If we were to do a study of the rehearings that were held in Ontario, we would be unlikely to find that particular lawyers are particularly successful.
Mr Kruger: You would find no trend. One thing I must say is that the board is exceedingly evenhanded. In fact, the average citizen looks upon the board as the court of last resort and they put it in without even a lawyer. A lot of the 42s have nothing to do with a lawyer, particularly where there is a consent or something like that. It is an individual. To him, every piece of evidence he gives is important, but what the board members have to determine is what the important parts of the evidence are, and maybe there is something there. After all, we have to write a decision. We might not have mentioned that. That upsets some people.
Mr Bradley: Speaking of lawyers and average citizens, what is your evaluation of the opportunity today, compared to perhaps 10 years ago, for the average citizen, without a high-priced lawyer and experts, being effective in fighting a case at the board? There is a feeling out there, a feeling in government perhaps, that with respect to our agencies, boards and commissions, including the Environmental Assessment Board -- I would be interested in your experience in the Ontario Municipal Board -- it is no longer easy for an average citizen to come before a board to state a case when faced with a battery of high-priced lawyers on the other side.
Mr Kruger: I can speak from today and my colleagues can speak of the time you mentioned, because they were on the board then. Today I do not think it matters at all. There is a concern, and that was brought out in this report. There are not that many cases, and I give a personal example of one I will be hearing together with my colleague here, that is, Etobicoke. Etobicoke is a case in point where the ratepayers have come forward, and I think intervenor funding or something like that would be very helpful. There are only about 20 cases a year where that might apply. That would be helpful. However, I know we are leaning over backward to the citizens who are involved there. Peter, would you like to comment on that? Mr Howden has been around on the board for longer than I.
Mr Howden: There are a couple of things I would like to say to that. First, I have had a number in the last year or two only, where we had citizens involved with no lawyer, no planner, who just came forward with some honest concerns about whatever it was, and they were successful. We try very hard to understand what they are trying to say. They cannot put it in the lingo that, as you say, a smart lawyer can or a planner or whatever. Often there is a very real kernel of a point behind all that which you have to search for, and bring it out, put it in the arena and let the people deal with it, who are represented, but at the end of the day we have to make a decision. We do give weight to that kind of concern, and where it has not been addressed the people whose job it is to address it are going to lose, and that has happened several times with just myself in the last year.
The second thing is that it is difficult always to make people feel at ease where there is a big issue involved with a lot to lose and a lot to win on both sides. Sometimes these are very crunchy issues we are dealing with. We try to maintain a certain decorum in the room which will allow people not to be put off. I know it is difficult sometimes and some lawyers are better at it than others. It is not just us who can deal with that situation. I think the legal profession has a little to answer for on this score -- occasionally; not as much as it used to.
We try from the moment the hearing opens, if it is well run, and I think most of them are, to draw those people in, to ask them, "How many of you will wish to speak at the hearing?" Make sure they have the time allotted so they know when they can, or fit them in if they have time problems, let them ask questions if they wish to. We are fairly elastic in the procedure, much more so than maybe 20 years ago when I first started practising before the board. I am from Barrie, by the way, l am not from Toronto. We did feel up there a certain sense of people coming in from outside, doing their work and getting out, and we had to live with it. We are trying to do what we can to deal with that as best we can and to make people feel as much at ease as we can in a sometimes difficult situation.
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Mr Kruger: Mr Colbourne has been the vice-chair and been around the board for a very long time.
Mr Colbourne: I think the problem for the public generally is in the appeals on bylaws. Consents on minor variances come, probably 60% of the individuals represent themselves, so there is no concern and no problem there, except that they may be intimidated by the county lawyer or the county planner. That is a matter of the weight of the evidence, but of course they are the applicants or appellants, as the case may be. The problem is in the major hearings where you have a battery of lawyers either for the developer or for the municipality, and they are opposed by the individuals.
The rail lands is a major hearing, but this is just one part of the rail lands that I am dealing with. We have had three individuals who have fortunately been able to stay throughout the whole process, which has meant five weeks right now, and they are actively participating in the examination of every witness. They are given that opportunity. In terms of the general public, we do set days for their participation. There is sometimes, in those major hearings, a degree of intimidation, but I do not think the board members could ever be criticized for not watching out for that sort of attitude on the part of the sharp lawyers, the developers' lawyers.
Can I back up on the section 42 reviews? There are clearly established criteria which have been in place for at least 15 years. There are four points that are considered on a review. The affidavit must cover the four points -- and error on the face of the decision and some evidence that was available at the time of the hearing but was not produced at the hearing; the other two my colleague, the lawyer down at the other end there -- there are clearly established criteria. There are four of them.
Mr Kruger: Anna, I think, who is one of the newer members of the board, came on to the board at the same time as myself but had experience by appearing before the board and is also a planner.
Ms Fraser: Perhaps I can give some assistance. As Mr Kruger said, I was a city planner before I went to law school as a mature student and I got called to the bar in 1982. Then I practised quite a bit before the OMB, which I suppose seems natural enough given my other work experience.
It was not unusual for my colleagues and myself, with the law firm I was with, and we had a fairly sophisticated group of practitioners before the municipal board to advise people who would come to us for advice to represent themselves before the board, because the reputation of the board among people who are knowledgeable about it in the legal community is that quite often on consents, variances and objections to various matters the board is so courteous to the unrepresented ratepayer that sometimes it is much better to go and speak for yourself. Sometimes we would say: "If you retain a lawyer, they'll think that you've got a lot of money to throw away. You've got good, valid points and you speak clearly. You just go in there and tell the board what you want." Never once did we have someone come back to us saying, "Boy, you really gave us a bum steer." Inevitably people would say that we had been right, that they got a courteous hearing. That is something I can speak to and I know it continues to the present.
Mr Kruger: Mr Bradley, I would finish this off. Sorry for our long response to you, but it is something that is very dear to this board. Let's take consents and variances. If there is one way to get rid of the backlog on this board or to bring the backlog down, it is to say to the board, "You no longer do consents and variances." If we did that, I am afraid there are a lot of little people out there, particularly when you get into the more rural areas of this province, who would say, "That's the worst possible thing that could happen." They want their day in court. l am accessible; anybody who has had a hearing can call me. I have to be very careful as to what I say to them, so I do not get into the merits of the case. They will call up and I have had people say, "I knew I was going to lose, but I just wanted to have my say." This is an individual. People are that way. So we lean over backwards towards these people. In the Etobicoke hearing I have 14 lawyers. I have no less than about 32 intervenors who want to have their say before the board and we are accommodating every one of them.
Mr Bradley: You mention the Etobicoke hearing. Is the board -- you may come back sharply to answer this question -- influenced by the fact in any way that in the Etobicoke hearing the desires of the sitting member in Etobicoke-Lakeshore, now the Minister of the Environment, are well known on this issue?
The Chair: Before you respond to that I just want to say, in fairness to all members of the committee, that I am going to move along and we will get back to you later on if the opportunity presents itself.
Mr Kruger: The answer is no. I can say that in the clearest possible terms.
Mr Colbourne: I have been on the board for 22 years, Mr Bradley. In 22 years, I have never been approached or heard of a letter on any of my hearings or any of the hearings of this board, with one exception which was 13 years ago. That particular member of the Legislature was dealt with by the then Premier. I have never, ever, through a chairman or been advised by a chairman that he has been influenced or has been corresponding with any member of the Legislature at all.
Mr Kruger: I am the worst type of chairman to try that on, I really am.
Mr Grandmaître: That is what Jim Durrell says.
Mr Frankford: Mr Kruger, you said in dealing with some of the problems of membership that you speak to the minister. This would be the Attorney General?
Mr Kruger: We are responsible to the Attorney General, it just so happens. I do not speak to the Attorney General on any case and under the rules right now there is no way that the Attorney General would call up any member of the executive council -- this is true of the previous government and this government -- to talk about any case that is before us.
Mr Frankford: I was not wanting to speak about Mr Bradley's point at all. I just thought to open up another area, the relationship of the board with the ministry, which is the Attorney General.
Mr Kruger: What we do, it is the Ministry of the Attorney General through which we must process our budget. That is the relationship; it is with the Ministry of the Attorney General when it comes to the appointment of members, and I think this is quite proper and valid. I think it is the Attorney General's office that should advertise for the members and so forth, because after all, under your standing order 104(g), whatever it is, he must lay on the table -- those are the terms that are in it -- who these people are. So there is that type of process but it is very distant. The only time I see the Attorney General or his parliamentary assistant is to tell them of some of the problems we might have. It is never about cases and it is always administrative.
Mr Frankford: Perhaps it would be useful for the committee to hear more about the relationships of agencies. I am thinking somewhat more generically, that agencies are under the aegis of ministries. The other thing I just wonder about is, it would seem that the work of the OMB would logically perhaps relate more to Municipal Affairs or Housing.
Mr Kruger: Let me answer. That is what I thought you were leading me towards. Back in 1971, this is the time of Mr Kennedy, at that time the OMB was responsible to or did operate through the Ministry of Municipal Affairs. There were some questions raised at that time about the influence that might or might not have been placed on the board because of that relationship. You must remember, we administer something like about 100 acts. The Ministry of Municipal Affairs is merely one of the ministries. The Ministry of the Environment, the Ministry of Natural Resources, the Ministry of Housing, we are in contact with those all the time.
The nature of our business, being an adversarial board as different to from inquisitorial board, as most regulatory boards are -- we are not a regulatory board -- and being very close to the courts, it was decided back at that time to move us to the Attorney General, where there could be no question about the complete independence of the board. We would have the independence that a court has, and that was the signal. Since that time we have been there. At that time also it was made quite clear that the status of the members should be at pleasure, very similar to the courts, because in many ways we adjudicate like judges. In fact, it was only just in recent times that on some appeals that might have gone to the county court on assessment they had to come to our board; it was the final source of appeal. So there was that history.
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Now if you were to say, "Where is it more likely that I'd get money and my budget would be easier?" sure, it would be nice to be with Municipal Affairs because they would like to have enough members to get through with all of the hearings, but if you were to ask me what the ministry was to which we should be responsible, not only for perception but in real terms for the work we do, obviously that is the Attorney General. Does that answer your question?
Mr Frankford: That is helpful. Thank you.
Mr Kruger: Very good.
Mr McLean: Could I have a supplementary on that? You said that they advertised. Whereabouts do they advertise for the positions?
Mr Kruger: When I came to the board I responded to an advertisement that was advertised in the Globe and Mail and it was advertised internally. I thought, what the hell, I will take a crack at it, and I got the job. So the advertising would be now -- I have suggested to the minister that we should advertise -- and they will make the decision where they are going to advertise, but I would think you would advertise in the daily newspapers. You would get into the outreach communities as well. I think we have to do more of that. Also, one of our best sources for new members is from our existing members who have seen people appear before them. We know most of the smart people out in the municipalities. That is what I mean by advertising. I have never had any problem in searching the total market to try to get the best possible members. The only difficulty is that they must come with certain qualifications.
Mr McLean: That was going to be my next supplementary. Anyhow, carry on.
The Chair: We will put you on the list. Do you want to be on the list?
Mr McLean: Yes, I want to be on the list.
Mr Grandmaître: I would like to address your workload. I know that you are very busy people and the number of applications or appeals or referrals are increasing every year. I have always maintained for the last 15 or 20 years that you should not be in the assessment appeals business, and you see that a number of regions including Metro at the present time are thinking of regional assessment. More and more regions are looking at regional assessment. I have always thought that the experts in assessment are with the Ministry of Revenue and not with the Ontario Municipal Board. I am not saying that you people are not experts or that you do not have experts in assessment. I am not saying this, but when I look at your workload -- and I think you have been very fair. You are not asking for a 50% increase in your membership.
Mr Kruger: No.
Mr Grandmaître: I think you are being reasonable, for the time being anyway, until the number of referrals --
Mr Kruger: We are very responsible.
Mr Grandmaître: I know. I was very surprised to look at the number of assessment appeals, 731 in 1989-90. Also, another field that I feel you should not be involved in is minor variances. That is the way I feel. I do not think that you should be involved in minor variances. I think planning boards, even in northern Ontario where you have unorganized areas where you have transportation boards, road boards and so on -- by the way, can I ask you a question? Write it down. I do not need an answer now. Can they appeal a decision of these transportation boards, road boards or whatever, can they appeal to you? Can the decision be appealed to you people?
Mr Kruger: I am not aware of any.
Mr Grandmaître: In northern Ontario?
Mr Kruger: No, I am not aware of any. Say you want a response to the minor variances and to the assessment appeals. Let me deal with minor variances, first of all. That of course has to be a political judgement of the government in power. The minor variances are important to the individuals. What we have done, and we did this and the question arose in the last government as to whether or not minor variances should be -- the board should not be and they should stop at the municipal council. That was the thought. The board took the position, "If that's what you want to do, go ahead and do it, but know that there are a lot of people out there who are then going to have some access to appeal, so where are they going to appeal to?" That is why the board got into these in the first place, because they were taking these to court. To that individual, be it in northern Ontario or wherever, that is very important to them. I have just had a case, section 42, as a matter of fact, that has come before us where what is in dispute is three inches of side yard, three inches.
Mr Grandmaître: For $3 million you are going to argue for three inches.
Mr Kruger: It was not $3 million. It was not that, but to that individual it was very important. That is a political judgement as to whether or not the board should be involved in things like that. That would take down some of our workload. Now, when it comes to assessments, I would let the person here who is probably the most knowledgeable -- that is Mr Colbourne. Would you like to give your thoughts on that?
Mr Colbourne: Mr Grandmaître, we are not experts in the assessment field. We listen to the experts who present the evidence and adjudicate it on that basis. Our major problem in the assessment field is not on the individual appeals; it is the major buildings. In downtown Toronto I think there is -- almost every office building in downtown Toronto. Our backlog is partly a function of a very small bar who practises in the assessment field and that is where our backlog has a problem. I dealt, for instance, in one hearing two months ago in Uxbridge with 10 gravel pits for five years, so that is 50 files. After four years of adjournments and court actions between the parties, that boiled down to a one-day hearing on one issue. That was dealt with in that way. I would think that -- again it is a political decision -- where the hearings officer should be on assessment appeals, it is my personal feeling that the individuals out there would probably not be too happy with individuals from the Ministry of Revenue dealing with their appeals when it was the Ministry of Revenue that put the assessments on. It is one department looking after the appeals of individuals from another. That is my view. We provide the adjudication -- independent.
Mr Grandmaître: I just said, the Ministry of Revenue sort of in a committee or a board at arm's length but responsible in the long run.
Mr Colbourne: Again, there may be that slight perception of the conflict between -- The Ministry of Revenue is a party, similarly to the Ministry of Natural Resources and Environment and Housing, Municipal Affairs are parties in a lot of our hearings -- so that if we were connected in some way there is, if not a reality, a perception of lack of independence from those parties.
Mr Kruger: Anna has something to add to that.
Ms Fraser: It is true, as you say, Mr Grandmaître, that there are some very, very skilled people with the Ministry of Revenue and we have the privilege of having them appear in front of us as witnesses. Our task is to listen to the facts and to determine what should be the outcome. It has been stated as a principle of administrative law and it has been stated often and I think it can be restated without any redundancy that justice must not only be done, it must be seen to be done. To be seen to be done, it has to be seen to be independent. Since the Ministry of Revenue establishes the very assessments that are then the subjects of the appeals, I would be very, very concerned that you could properly say in good conscience that there could not ever be a perception of bias, that there could always be a perception of true independence with that setup.
I agree with our chairman that the proper ministry for us to be in front of, since we are triers of fact and law, is the Attorney General's department, and then receiving the benefit of the skill and expertise of the various witnesses before us, including the ones from the ministries.
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Mr Kruger: As you would know, sir, from your own experience in government and in the municipal field, the board quite often finds itself in the position of adjudicating matters where there will be two ministries involved, with different views, and it is our independence that comes into play because we are not experts. We listen to the facts and based upon the evidence before us -- sometimes it is a little frustrating. We might have views, but we cannot have views beyond the facts that are presented. Does that answer your question?
Mr Grandmaître: Yes, it does. As you mentioned, as a former municipal politician I was always concerned about your backlog.
Mr Kruger: Yes.
Mr Grandmaître: The average is 13 months, is it?
Mr Kruger: Yes, 13 months.
Mr Kruger: Too long.
Mr Grandmaître: Yes, absolutely.
Mr Kruger: It should be 90 days.
Mr Grandmaître: Well, it could be 90 days. I think it is very costly to the appellants.
Mr Bradley: With more staff and more money, it will be 90 days.
Mr Grandmaître: It is very costly to developers, municipalities and so on and so forth.
Mr Kruger: And better processes, too, Mr Bradley.
Mr Grandmaître: Going back to your consultants' report, did you ask these people to look at your workload, and not only to look at it, but to recommend ways of improving the backlog by another way of accomplishing as much as you are doing now, or more than what you are doing now, with the same number of people? Was this part of --
Mr Kruger: It was, and in fact they gave some very precise suggestions on case load management, what we should do on case load management. They went through every aspect of what the board does. It is along those lines that we are now proceeding. We have put in our estimate of what we believe is necessary. We will be changing the function of case load management within the board to modernize it, to make if more effective and more efficient. There will be a greater relationship between the staff and the board member. We will be bringing in things such as ADR, alternative dispute resolution mechanisms. We will be bringing in mediation.
Now, all of these things have to be codified. We are in the position we need to get some people who can codify these things. Then we will discuss it with a focus group, being AMO, the municipal bar and so forth to see if we can get co-operation from these people. It may be necessary to change some legislation. There is some thought and some view by some people that what we should also do is to not only bring it in, but computerize it better.
We should have more dialogue between ourselves and the municipality to get the files brought up to a point where we are just not sitting there and opening up a hearing and finding, "Oh, well, we did not know that." This is very true of assessment hearings, where a lot of the individuals who come forward say, "Well, had I have known that, that is the way they go about it." So we are getting more and more into pre-hearing conferences, pre-filing of evidence. All of this is going on and this was brought out in the consultants' report.
As you know, consultants go around and they talk to your members. Most of these things are not just something out of the blue that is new to the board. We have thought about these things, but the board members have never had the time to concentrate their minds on these things. What this has done is do that for us. It is based upon that, that we are now proceeding to alter some of these things in the board. Yes, it has been a very important document.
Ms Haslam: Thank you for asking my question, Mr Grandmaître. My question was, how readily available was this --
Mr Grandmaître: Are you satisfied with the answer?
Ms Haslam: That will remain to be seen. My question is, how readily available was this particular report, because we only have one copy here and I do not know how readily available it was.
Mr Kruger: Well, we did not get too many. We had a limited budget and they only --
Ms Haslam: What was your budget?
Mr Kruger: The budget, in total, was $125,000. Of the reports, there were about 50 of these things in these nice things produced. If you want a copy, it means photostatting them. There was also a question I must --
Ms Haslam: Thank you. I will consider that. Now, you have mentioned modernization, ADR, mediation and staff relations. I have a couple of questions. I would like you to go a little more into how you are going to modernize or what you are going to do as this report has suggested. One of the other things you mentioned was change in legislation, and I would like to know a little more about that particular item that was covered in this report. Was there something else that you are instituting from this report that you would like to share with us?
Mr Kruger: Let me just go down the report in its contents --
Ms Haslam: No. You can pick out one, I do not mind one, but I would like to get an idea of maybe a couple. I do not need the whole thing. I would like a couple more. I would like you to elaborate on modernization and what you are doing, how you are doing that and what legislation you wish to have at that time.
Mr Kruger: All right, let me talk about modernization. One of the great difficulties at the board has been in the way we have hired staff. Staff have been hired at the intake level of the Ontario public service. Now, these are qualified planners. They come out of a university and they are paid very low. They have not been permanent members of the OPS. They have all been on contract. What has been happening is that they have come in and because of the low wages, they spend six to nine months on the board and then they leave. They go to municipalities, and having on your curriculum vitae that you have been at the Ontario Municipal Board is really something.
One of the difficulties has been the way we have had these staff operating. Our own senior staff have not liked this, but they have not been able to do anything about it, and that is, you become an expert on, say, assessment. A file comes in. If it is an assessment file, that is what you handle. If there are not too many assessment files, there is not that much you do. So one of the first things you have to do in proper case management is that you have to have your people trained, you have to pay them better than what they have been paid, and you have to have them come in so that they can handle any type of file. So their tasks now will be not only to make sure all of the documents are complete, but of the quality of those documents that are there.
Also, we have to computerize this so that we can pull it off. We have not been completely computerized at all.
It is in those areas that we are going to do it. We are going to pay the people more. We are going to give them training, not only on one-case management but also training itself.
One of the other things that this report says of the members is, what training do they have? The members come in and we have this system whereby they sit with another member and kind of get training that way. We are going to have it now. I have put it in. Our members should be going to seminars. They should come in with an orientation training. There should be a definite training program for each of those members who comes on board. That is now going to be done. That is a part of the modernization of the process so that it will be complete.
They talk about the case for consistency. The board members are now coming forward and we are starting to look at this in our system internally, in our peer review system. The performance review is something that is going to be instituted on the members. Once a year I will sit down with each of the members and we will systematically go over what their performance has been, and this eventually will find its way to the minister. We are going to modernize the personnel part of the things that we do.
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The report, from pages 54 to 103, talks about the whole of the case management system. We will be following that. We will be breaking the staff into area groups so that one group can help out another group and so forth. Some of them will be trained in mediation as well, because mediation starts with that first case manager. We will be looking into the management structure that we have.
On some of the things we are looking at with regard to legislation, we are just starting to get into that, how things could be done a little differently, like the number of days you have to put it out to the people in a particular area. We see difficulties as they come forward and there are some of these that we took to the board at its last meeting.
Wherever legislation is made, as a board, we are the end of the line. We see whether it is good or not. We have to become proactive. We have certain ideas. You see, the members will come back from hearings and say, "You know it would be good if they did that." That heretofore has got lost. Now we will have the resources to capture that. We will network with the various ministries that are involved, get to those ministries and say to their policy groups, "When this comes up you should be thinking about this." If necessary, we will take our case forward to the deputy minister of that.
That is a process. There is no one magic thing. It is a lot of little things and it is process more than anything.
Ms Haslam: I keep hearing how poorly paid we are. I would like a contrast in the pay scales. When you say that people stay and then they leave, are they actually getting paid a lot more at a municipal level than they are at your board?
Mr Kruger: No. I am talking about the intake level. They are in what is called, forgive me for being a bureaucrat, an OG 6. They are an OG 6 and they go up, and all that we are asking is that they be put forward. As a matter of fact I can tell you that these are qualified planners when they come in on a contract. If you want to know how much they have been paid, just give me a second. What is it?
Ms Fenn: It is $27,000.
Mr Kruger: These are highly skilled people. They are paid $27,000. They can walk into a municipality after six months and they can get at least $35,000. Anna has got some thoughts on that.
Ms Fraser: Perhaps I could add something to that, Ms Haslam. I was startled to realize that our professional planners, some of whom have master's degrees, would get a salary increase if they would consent to work at the board only as clerical staff, as one of the secretaries. The secretaries are paid more.
Mr Kruger: Yes, at the present. We are going to correct that.
Ms Fraser: That is not to downplay the secretaries; it is just to put it in context. They should be paid at least as much, I should think.
Mr McLean: The board is a non-political board.
Mr Kruger: Absolutely.
Mr McLean: How did you get your appointment then?
Mr Kruger: I responded to an advertisement. As a matter of fact, it is no secret and I am quite blunt and up forward. I was in the process of seriously thinking about leaving the government. I had gone through some difficult times on some of the boards they had put me on. l saw this ad and, after all, I have had a lot of experience in the municipal field, and I replied. I was almost going to return to the municipal field. So I responded to an ad. It was a competition. That is how I got my job.
Mr McLean: Why would one of the vice-chairmen not become chairman?
Mr Kruger: Why would which?
Mr McLean: A vice-chairman not become a chairman.
Mr Kruger: Well, that was a decision of the government at the time, to put out the advertisement, and one of the vice-chairs did indeed apply. In fact, a couple of the members applied as well. I just do not know by what mystery I got appointed.
Mr McLean: The time for zoning bylaw hearings: Is it less than the 13 months? Would they be a priority with your board, to hear them more quickly?
Mr Kruger: No, they are not. The priorities of the board that we have right now -- we are in a bit of a recession -- go something like this: affordable housing, number one; we pull out all stops for affordable housing. Then we take a look at what is involved and the amount of employment it might give and what the difficulties are in the particular community. We do not respond to any pressures. If I responded to pressures, I can tell you that a hearing for the Ottawa Senators would have already been held. We just do not respond to the pressures.
We try to weigh the cases, the number of days that are involved, the number of people who are objecting and the type of objections. That is between myself and, primarily, Mr Colbourne. We are working with the calendar almost on a daily basis and we consult back and forth. It is also the availability of members, because on certain types of hearings we have some members who are very good and very knowledgeable -- if it is assessment, or expropriation or something like that -- and it is how long have they been on the board. I have some members who are excellent when it comes to the more rural things, and that is what they want to do; that is what they prefer. It is a variety of a whole mixture of things.
Mr McLean: You indicated that you are going to do an assessment of the members on a yearly basis.
Mr Kruger: Yes.
Mr McLean: Being that you are doing that, do you think you have some members now who are overpaid?
Mr Kruger: Nobody is overpaid.
Mr McLean: I thought I would get that answer.
Mr Kruger: There is nobody who is overpaid; I can tell you that.
Mr McLean: Is the pay scale satisfactory? Would you deem it to be that?
Mr Kruger: The pay scale for the ordinary members? Three years ago it was; today it is not. One of the difficulties I am finding is whether or not we will be able to attract members to the board at the present level of salary that the ordinary members get. It is no secret how it was decided. They had to be put on some type of scale within the civil service, I guess, so they selected and they said, "Well, these members should be the same as directors," and they were put on a director's scale. That is what is called an executive compensation plan 3.
Those members this last year got a 1.93% increase. If I go out and try to get a person of similar qualifications from a private law firm, forget it; I cannot. Some members will come from a private law firm because they see that the board is a senior board. It is a prestigious thing and they want to make this their career. If I try to attract, as we did before, members from municipalities who are in legal departments, and particularly some of the types of members who we want to get in with the qualifications, I am going to find it very difficult at that level.
We are ranging from about $6,000 to $10,000 below market. Whether or not we will be able to attract the members, the litmus test is coming up when we apply for the members. The salaries of most of the members three years ago, when they came in, were competitive. I have some members who chose the board -- these are the older members. There was a time when board members received more money than judges and they chose the board, not because of that but because they thought it would be more interesting work.
We are troubled by our backlog, because whereas in a criminal case, in a drunk driving case, it is tragic and you have maybe one or two people involved, if we have 13 months for a zoning bylaw we have many people involved. Their lives may be tied up in it.
Mr McLean: Does the board have a position with regard to intervenor funding?
Mr Kruger: The board's position in the past on intervenor funding has been very cautious, because if you start intervenor funding for the board you are getting into a position where everybody will want to come out of the woodwork. However, we have seen enough. The Etobicoke hearing is an example of that, and there are other hearings, the railway lands and so forth, and we now have the experience of the Environmental Assessment Board as to what can happen.
But if your standards are very clear, if the procedure is clear, then I think the board is recognizing there may be some cases where intervenor funding would apply. It is a little tragic to be sitting on a thing as complex as the Etobicoke hearing and find that the intervenors out there are trying to have bake sales in order to get people who will come forward and be able to make a representation. Mr Howden is on that and may have some different views to mine.
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Mr Howden: Mr McLean, I think apart from the regular things that you hear at hearings, the main thrust of what the public has to tell us at a major hearing, and I have done a number of major, major hearings, large plans with a lot of sophisticated evidence and so on, and also very well organized ratepayer groups as well as individuals.
The most common thread among all of that is a frustration in the public at feeling they do not have the resources to deal with the kind of sophisticated planning at the level that is in front of them. As I told Mr Bradley earlier, we try to make up for that by doing our best to understand what they are saying and so on, but just so you are aware, and maybe you are, it is certainly very much in the public mind when they come in front of us.
As far my own views on intervenor funding are concerned, I think that is a matter for the government, and this Legislature obviously, to deal with in its wisdom. We can operate however. I know there are operational problems because of the range of things we do, but there is no doubt in my mind that on a major hearing where it goes beyond one site, where there is a lot of sophisticated evidence coming in from one source often -- often it is just the ones like Metro for traffic computer information; they have it -- it would be of assistance to have intervenor funding for those kinds of major hearings that affect huge areas of a large community like Metro Toronto.
Mr Kruger: There is another aspect to it too, and this was brought out in the consultants' report. One of the things that they said is that they had reckoned the maximum number of times intervenor funding should apply would be about 20 major cases a year. But there is another aspect to it of concern to the board. The consultants said we should become more inquisitorial in our approach. Now, an inquisitorial approach means that you have resources that are available to the board, that in some of these hearings you would have counsel who would ask questions of witnesses and so forth. The best position that the board is in is not to get into that at all; it is to have the group out there so that the evidence cannot be tainted in any way by any perceived prejudice that there is a board member doing it.
In some of those cases, and there are not that many, instead of going the inquisitorial route for the board, we would be better off to have some of the larger cases represented by a planner before the board so we get the evidence that way rather than have to seek it out ourselves. The board members have limits as to how inquisitorial they can be from sitting on the bench and asking the questions of the witnesses. We cannot get into cross-examination ourselves of witnesses. But I think we do the best we can. We lean over backwards for the average individual there if things have not come out.
Mr McLean: It has been said on occasion a board member would ask the people, "Why did you come here without legal counsel?" In what cases would that happen?
Mr Kruger: I have never heard that. If that is being said by a board member, it has not got to my ears. Had it got to my ears, you can believe I would have a wee discussion with the member. But I have never heard that. Have you ever heard that?
Ms Fraser: No.
Mr McLean: I just have two more short ones, and really basic. What they have to do with is what type of a pension plan the members have and the aspect around appointments. This has to be ironed out, as you have indicated. Is it three years? Is it going to be once more reappointed and then at the end of six years out? How are you going to base a pension on that type of a process?
Mr Kruger: Let me answer the last question first. We do not know. That is what we are discussing with the government. The position of the board is very clear. We have considered this matter for some time and we have put forward to the government a very reasoned position, as we see it, because of the nature of the business. If we bring in performance appraisals and all of those things, then the board appointments should be at pleasure, until such time as the person is not performing. In other words, that is what happens if you are a member of the public service. That is the position I am in as a public servant. I can be fired any time if I do not perform. That is the position of the board on that.
As far as the pension is concerned, we get the same pension as the Ontario public service, exactly the same. Of course, I know a little bit about pensions, as Mr Runciman would know.
Mr Waters: I just want to ask a supplementary on what Allan was talking about there. You were saying that it should go basically as long as the person would like to sit on the board, but in the report that you refer to, the Coopers and Lybrand report, is there not a recommendation for a five and a three?
Mr Kruger: Yes, there is. What they said, based upon the influences they saw in the government of the day, was that everything is going to a three-year appointment. There is no mystery to that either. The theory behind the three-year appointment is that once you get an order-in-council appointment, it is much easier to get rid of a person after three years. That is what the thought is. But then you can look back at what happens within the public service itself, that is, if you want to get rid of somebody, you can fire him. It is probably going to cost you some money, but you can get rid of him.
However, they said five years. I will tell you where they got the five years from. It takes 18 months to two years to get a member fully productive, so that means when they are fully trained, you get three years out of them. That is why the five years, and they also said there should be no limitation on the number of times that they can be reappointed, provided they do their job. You are almost talking about it at pleasure.
They also talked about performance appraisals. They talked about those things as well. The board saw this and they considered it, because there is a dichotomy now on the board. But that is where the five and the three came from. It was influenced by the position they saw that the government was taking on other boards. You must remember that this was completed at the time of the previous government. That is as much as I can say. The reason it is not being acted upon, much to my frustration, is of course just timing. I get frustrated if I cannot get things done quickly, but I realize there was an election.
Mr McLean: Mr Chairman, just before Mr McGuinty starts, have all the members been reappointed as they have gone on? Are the long-term members reappointed every three years?
Mr Kruger: No, no. The long-term members are on there as long as they perform. We are coming up to the first group of the three-year appointments, and there is a recommendation within this report that, and I think this is fair, a person should know six months before he is going to be reappointed whether he is or not. You must remember that these people have left the legal profession, they have left their own businesses, and for them to go back into that market at the time when they have made a career choice is very, very difficult. It is for that reason that the consultants recommended that there should be some type of a payment, a resettlement allowance they called it, that should be available to members.
Mr McLean: Some lawyers get elected to the Legislature too.
The Chair: I have been calling on Mr McGuinty several times now. I am going to give him the opportunity to have the floor.
Mr Grandmaître: He is going to fax his question.
Mr Bradley: He is going to tell you the mandarin massacre is coming this week. We heard on the CBC this morning that the mandarin massacre is this week so we will all be watching.
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Mr Kruger: Nobody has called me, Mr Bradley.
Mr McGuinty: Mr Kruger, I take it from what you said this morning it is a fair assessment that the backlog that exists right now is unacceptable.
Mr Kruger: That is quite correct. The standard within the board that we would like to achieve, and we did achieve it back in about 1985, when we had 36 members, is approximately 90 days.
Mr McGuinty: Okay. What I want to explore now to some extent is what it is that we are doing or could be doing at the front end of the system, that is, processes that would weed out or screen cases before they became the subject matter of a full hearing. First of all, is there an application fee?
Mr Kruger: Yes. We have just reviewed those, Mr McGuinty. We were on the horns of a dilemma there because there is some movement among municipalities that talk about abuse of process because you have only got to give $125, $150 and you can get a hearing before the board. That is an abuse of process. But we had to weigh that against the ability of an individual who might not have too much money. That is access to justice before the board. We have done that and we have made certain suggestions. The fees have not been put up for a period of time. We have gone the inflation rate and a bit more and suggested that. Yes, there are a lot of front-end things that we can do within our files.
Mr McGuinty: Just further with respect to the fee, has any thought been given to the possibility that perhaps it could be raised and at the same time some kind of mechanism could be in place to assist people bringing applications if they could establish a prima facie case that they could not afford the fee?
Mr Kruger: Well, we have not run into the difficulty where they could not afford the fee, but the idea of assisting people, yes. One of the things that the case managers would now say, if a person is coming forward and he wants to bring his case forward, is, "Look, if you're going to go to the board, these are the tests that you've got to meet, these are the things that you've got to have." There is going to be that type of dialogue. The staff have got to be very careful. They cannot make the case for the individual, but what they can do is make sure that the file is complete.
One of the things we have been considering -- this is in our representation to the government and it gets into the change of any legislation -- you never know if an application is frivolous or if there is an abuse of process until you hear the evidence, until the end of the case. One of the things we have been wondering about is whether we should not have the ability by law to be able to award costs and whether those costs should be payable to the board to offset some of the costs to the parties.
We are looking very seriously at that because sometimes there is an abuse of process and we know that. I have had classic examples of developers -- you have seen it yourself -- who were putting forward a development. A ratepayer group has held them up and said, "We want this and we want that." In fact there was a reported case on this about six months ago where they were demanding of the developer $750,000 -- and that was in the press -- in which case, if they got the money, they would withdraw the objection. The developer said: "Discretion is the better part of valour. We've got to wait this time." I do not know how much was paid, but a deal was made. That is an abuse of process.
Mr McGuinty: Is there any mechanism in place right now which is set up to consider cases before they become the subject matter of an actual hearing to determine whether or not they have merit on the face of the evidence presented in documentation?
Mr Kruger: I will let my colleague answer that.
Mr Colbourne: One of the attempts I have been making, having responsibility for the calendar and the shortage of members right now -- all of the members are somewhere every day unless they are off sick or they are having to write some decisions and they have a backlog.
One of the things that I have always been trying to do for the last two years is to get some of the members in for file review and to have a paper hearing up front, if at all possible. In that way, in the consents and the variances, that could, I think, clear out some of those files and perhaps negate the need for a hearing. On bylaw appeals we require that municipalities, the council itself, sit down and consider the objections. My experience is that they sit down and consider the objection in isolation in another council meeting.
It is my recommendation, and I am not sure it has not been successful so far, is to have council meet with the appellants on a particular zoning bylaw and not just have an isolated meeting of council, have a participation again dealing with only the appellants in the particular case. It has been my experience in some of the bylaw appeals that people come without really understanding what they are objecting to. I suggest that we perhaps have either planners or council meet with these people subsequent to the filing of the appeal.
Now, there is a view on that which says the municipality passes the bylaw and then they go out and they try to influence the ratepayer, so it is a two-edged sort of a thing. But I think there is some sort of mechanism in between there where we can perhaps get it back to council, and that might negate some, I am not sure how many, but --
Mr Kruger: My two colleagues would like to speak on it and just before they do, there is one thing that I did not mention. We are seriously considering the concept of pre-trial as well. That is another concept that we are considering. Anna and then Peter.
Ms Fraser: Mr McGuinty, there are some points that I would like to draw to your attention. I know when I joined the board and was considering the matter of the backlog and I started thinking about it, my own analysis was that in the circumstances it would have been more surprising if there were not a backlog than if there were, for a number of reasons. This is the analysis that I have come up with, and I have to emphasize this is a personal one. There are an increased number of acts that the Ontario Municipal Board is responsible for that can generate appeals to the board. If you look at the number of acts over the years that we are responsible for, and you can see them outlined in each annual OMB report, you will see the numbers growing. I think it is 121 acts now.
The land in the province, especially in the southern urban areas, is becoming increasingly developed and there is more redevelopment. This seems to lead to more complex issues being discussed, more aspects that the proponents and the local ratepayers are concerned about, and it tends to generate longer hearings. Even if they only go to a week instead of a week and two days, that gets to be a significant increase over the long haul.
There is more environmental awareness these days. This introduces more complex elements. These are serious questions that have to be dealt with. Again, that can result in the hearing lengths increasing. There was the recent boom, and boom times always generate appeals to the board. Now that we seem not to be in a boom time, maybe that will subside, although there may be others that come up in recession times. At any rate, the boom times do generate a number of development-related appeals and land-use-related appeals. If you look at that together with a decrease in the number of members -- I understand it was as high as 38 or 39 members at a time, and now we are down to 30.
I think we have to realize that very few people do knowingly abuse the process. I think there are real reasons why there are large numbers of appeals, more complex appeals and the backlog.
Mr Howden: Just on your question about I guess weeding out at the front end some of the things that should not be in front of us for hearing, I just remind you that in the legislation right now there are remedies of that nature available. One is a ministerial one, and when we get referrals -- Mr Grandmaître is nodding his head, and he used to refer some of these to us -- of official plan amendments or official plans for the Ministry of Municipal Affairs, the minister has the discretion to say to a person asking for that referral to the board, "I am sorry, you have not satisfied me your objection is not frivolous or vexatious, and I am not going to refer it." They have staff who can look into all of this and make that recommendation to the minister and he can make that judgement. If he does refer, I take it that means it is not frivolous. That is there, right now. I had said I could assume that.
1140
On every bylaw appeal, minor variance appeal and consenter severance appeal, there is a section in the act that allows another party, such as a municipality for instance, to bring an application to the board before the hearing, saying: "This appeal has no merit. There are no grounds for this appeal at all." We can hear that motion, and frankly what we have been doing to try to quicken things up a little is, when the notice goes out for that application, often we will couple a hearing with that particular application. In other words, if it fails, if the board says, "Yes, there is merit in this appeal. We want to hear it," we can swing into the hearing right then and there; sometimes not.
Mr McGuinty: What is the turnaround time?
Mr Howden: All I am saying is that the parties can use that right now if they wish to, and do on occasion.
Mr McGuinty: I am just wondering, what is the turnaround time then to bring that type of motion before the board? It is not 13 months.
Mr Howden: No. Mr Colbourne is a vice-chairman. The vice-chairmen deal with these, so I will defer to him on that.
Mr Colbourne: On average when I am duty vice-chairman, there are about five to six of these applications every week; we deal with these motion requests. The turnaround time stretches anywhere from, in that case, 20 days to 40 days.
Mr Kruger: However, there is a problem.
Mr Colbourne: You have to be satisfied on the application that there is merit to put it on for a motion to dispense with the hearing. I mean, there have to be sufficient grounds for that initially up front. Under the Planning Act we can also require further filings on certain appeals up front to determine whether or not we have to hold a hearing. We have that discretion in the Planning Act right now. Offhand, I do not think it is exercised that frequently yet, but it is available to us and they would have to provide us with further documentation. We still have to give them an opportunity to respond to anything, but that is available also.
Mr Kruger: There are about 30 cases of this request; maybe two we would not hold a hearing on. I see all of these in consultation with my colleagues. However, particularly the lawyers out there are aware that this might be a way of getting around the 13 months, so what they do, or they started to do, was say, "All right, we will have this and we will have a hearing follow." No. What we are doing more and more is, we will put the thing on for a motion, but you are going to have to wait your normal time in the queue for the actual hearing. We are doing that more and more, because we are not going to abide their getting around it. This is unfair.
Now, you had one other thing, Peter.
Mr Howden: Mr McGuinty, on the matter of what is in the act now to do with bylaw appeals, variance appeals and consent appeals, I could certainly see some value in your committee's considering further that particular section and setting out some criteria as to what you wish us to use. If you wish to direct us in some way, please feel free to consider that kind of amendment. We would like some direction.
Quite frankly, that section is so cloudy that we are very worried about relying on it too often. It says something to the effect of, "where there are no sufficient grounds." That leaves an awful burden on appointed people, without any criteria, to say to the public, "You have no right to a public hearing because we don't think there are sufficient grounds." Okay? So I think that would be an important duty of somebody with the Legislature, to maybe consider that particular one.
Mr McGuinty: One further question then, please, in connection with this matter. Do you now have the legislative authority to, for instance, set aside a couple of members who would do nothing but hold pre-trial conferences?
Mr Kruger: That is a procedure that is available within the discretion of the chairman, yes.
Mr McGuinty: Are you doing that now?
Mr Kruger: We will be. Again, it is a matter of getting the resources to codify these things, get out to the municipal buyers and so forth to make sure that they understand what we are doing. We are looking at this right now, particularly on assessment appeals. I describe it as somewhat like a sausage factory, where we will have the people who come in for the pre-trial, and we will have members waiting in some of our hearing rooms and they will come up, and the member is sitting there saying: "Look, if you go forward, you can go forward, but you have to meet these tests. Hey, you don't have a hope." This is something that is being worked on by Mr Colbourne.
Mr McGuinty: Will you be able to compel the parties to attend a pre-trail?
Mr Kruger: In our process, what we are trying to do is to get it out to folks. If you say, "Use the legislation to compel them," no. I think we are looking to the point of trying to work out a --
Mr Colbourne: We can just simply issue an appointment and say, "Appear, and we are going to do some pretrial, pre-hearing conference," or whatever it may be. In the case of the assessment appeals, I established one member as, if I can put it this way, the case manager for four major properties in Ontario, where the members of the bar involved in those applications appeals wanted pre-hearing consultation to establish certain things as they went along to get productions, discoveries and all the rest of the legal mechanisms out of the way prior to the hearing. Our major problem is that section of the bar, the assessment bar, is a very small one and it is very busy since it has all the properties in Metropolitan Toronto and major municipalities.
That includes problems, frankly. The Ministry of Revenue has a shortage of resources in terms of experienced assessors to appear in front of our board to defend General Motors of Oshawa, for instance, or General Motors in St Catharines. There is not that large a bar in the employment of the Ministry of Revenue, either, to be able to handle seven hearings a week. It is just impossible for them to do, so it is a matter of resources outside as well. But we are trying to manage the files better up front, get them together earlier talking about all these things and not wasting the hearing time.
Mr Perruzza: I have a series of questions and I am just wondering if we can have consensus. Depending on the length of the answers, I would hate to be cut off at 12 o'clock. If the questions go beyond 12 o'clock, would you just simply push back the time we come back this afternoon? Or I will wait until this afternoon to ask the questions. I can wait until 2 o'clock.
The Chair: I have difficulty with anyone going beyond 15 minutes, personally. We can break it into two or three sections. You can get on later on this afternoon as well.
Mr Perruzza: Yes, but I would hate to be cut off in midstride.
The Chair: I am advising you that I am probably going to cut you off in any event. I do not think one member should dominate the floor. I try to rotate it as fairly as I can.
Mr Perruzza: Mr Chairman, some members have dominated for 20 or 25 minutes, but okay.
Mr Bradley: In all seriousness, I am prepared to be cut off.
Mr Perruzza: Okay, maybe we can keep the answers short.
Mr Bradley: That is something that is not going to happen. You will learn that.
Mr Perruzza: Generally, just to learn a little bit about the operations of the boards, it was mentioned by the chair of the board that the members who are appointed to it do not bring to it any specific expertise in zoning and rezoning matters. They bring experience, but they come from all backgrounds, all walks of life. So you have educators, you have some lawyers, and I forget the others.
Mr Howden: Chartered accountants as well.
Mr Perruzza: Chartered accountants, farmers. There was a farmer who was on your board.
Mr Kruger: Planners, architects.
Mr Perruzza: I think that is wonderful. I think you need that kind of thing.
You talked about an 18-month indoctrination or training process. Can you expand on that a little bit? What kind of training and what kind of information?
Mr Kruger: This is one thing that the consultants' report was critical of, and we have not had it. There should be orientation, and it does not matter what walk of life. If you are a chartered accountant, you probably do not know too much about the rules of practice and procedures. You have to know that, because all of our things are appealable to the courts on questions of law, so you have to learn that. So we put a member with a sitting member, and they go around. We try to put them with a variety of these members so that they will get experience on how to conduct themselves. We go all over Ontario and we do that. To get to the point where they could take on a consent or a variance by themselves and do a proper job, it generally takes about nine months.
1150
Then we will start them on more involved hearings, a zoning bylaw or something like that, depending on the experience of the member. That is going to take them up to about 12 months. They are starting to be an experienced member, and that means they can chair one of these things themselves. Heretofore, they would just be a member of it.
You have about another six months before they can chair the more involved ones. It depends on their experience. Anna, as an example, with a dual background, having worked in a municipality, being a planner, being a lawyer, having practised outside, is now taking a very involved thing in Alliston of 20 days on official plan and zoning. She can do that; there is the odd member like that. But the mere fact that you may have practised before the board is no criterion that you will be able to conduct a hearing.
That is generally what occurs. The other thing where we are falling down is that our members should be going to seminars, on environmental matters, for example, or on changes that are being contemplated. Mr Crombie, for example, is contemplating the greening of the Planning Act and things like that. We should even once a year have people come in to teach them how to write a decision, so that is all a part of the training.
Mr Perruzza: They act and behave like judges but they are not really judges trained in law and do not deal only with the legal issues related to a particular appeal.
Mr Kruger: That is right. They have to have ability.
Mr Perruzza: How much does it cost for someone to appeal a municipal decision to the Ontario Municipal Board?
Mr Kruger: It is $125.
Mr Perruzza: So virtually anybody who takes an issue to a municipality can afford to take a decision --
Mr Kruger: That is the access to justice rule, yes.
Mr Perruzza: You talked a little about sensitivity to ratepayers and citizens who appear before the board without a string of lawyers attached to them. Can you expand on that a little? Sensitivity in what sense, in simply hearing them out or in weighing their concern?
Mr Kruger: Mr Howden put it well, and I think it deserves repeating. Everybody who comes before us has a point of view. You have to listen to it and you have to try to get out of that point of view -- there is a kernel somewhere.
If you ask the average individual, I think any individual ratepayer is an expert on a road. They know if it is straight. They know where it is going. They know if they want it or do not want it in their neighbourhood. They know what they conceive the traffic is going to be like. They are an expert on their communities. If you put that large building in our community, it is going to disturb the structure of our community. You are an expert on that. This is very important evidence for the board.
Mr Perruzza: You have concerned ratepayer X who understands his community very well -- I am thinking of the city of Toronto, an appeal in Toronto, because the urban environment is what I understand best; it is where I have always lived -- who has a concern. You have developer X before you who has a municipal decision, and the municipality has provided a considerable amount of factual detailed information related to a specific application, all kinds of professional reports, legal reports, transportation reports, sewer analyses and some social service reports, with a string of lawyers. You will have also the developer's consultant reports. They have been able to go out and seek professional and expert advice and provide a considerable amount of information before you.
What I am trying to say is that ratepayer X understands his community and says: "I can't drive down this street during these hours. I have to wait in a lineup for an hour before I get from this point in the road to that point in the road during peak hours." But you have a transportation report which says: "Hang on a minute. There's plenty of capacity. We are not at full capacity on this artery." It has been generated through a process with some political influence. You cannot get away from that in a municipal environment, especially in the development industry and the development environment as well.
Mr Kruger: That is right.
Mr Perruzza: How would a board member deal with that, not being able to go outside and commission your own reports? This ratepayer cannot afford the $50,000, $70,000 or $100,000 it requires to refute all this hard physical evidence that has been provided by a considerable number of consultants and experts. How do you deal with that?
Mr Kruger: I will start at this end of the table and then I will finish up, because I had that experience consistently as the chief administrative officer of Metropolitan Toronto, so I know whereof you speak.
The Chair: We will let you answer his question. Then we are going to break for lunch, and Mr Perruzza can continue his questioning after.
Mr Howden: I will just tell you off the top of my head what occurs to me. First, this is where some experience does come in. It has to. If you know what to look for from a traffic expert, for instance, and some of the analysis you have seen or have not seen in this particular case, you know what to ask him at the end of his evidence and draw out if there are deficiencies and what they are.
The other point, though, that I think has to be made is that I think you underestimate some of the ratepayers, especially in this city. Many of them are well organized. They do not have a lot of money but they do an awful lot of work preparing for these hearings, believe me. They go through these reports often and do help in our weighing that evidence in terms of questions they are able to ask or points they make themselves which we then insist on the experts answering, which they may not have done in the first place. It is always surprising to me that after this process you talk about, many people -- and these are neighbours -- come in front of us and say: "This is the first time we have ever heard any of this explained to us. This is the first time we have been able to ask a question about why they think traffic can be handled."
All of that I think you have to bear in mind, the experience of the board members involved and the involvement of an informed public. Sometimes they are not, I agree. Sometimes they just come and say, "Look, I've got a problem." Sometimes the developer wins because he has prepared very well and has addressed all of those concerns. But 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 if they are significant, then the developer loses.
That is part and parcel of the whole process. It is very difficult when you have one group over here and another group over here who are affected totally differently from each other, and a ministry or two involved, saying, "We've got policies," plus the developer, plus the municipality, which may or may not have approved that bylaw. We get people who do not succeed at the municipal level as well; the municipality is fighting it. So you get all shapes and sizes of circumstances, and all I can tell you is that we do the best we can to bring out of all that what are the matters of significant public and neighbourhood interest and see that they are addressed.
Mr Kruger: A ratepayer has the right to seek status before the board, where he has the right to cross-examine these people. If they have a thought in mind, quite often they will start into their cross-examination. Maybe they do not even know what they are starting, maybe it is a bit of a fishing trip, but they have every right to do that. It is very important for the board to listen to what is coming forward, because they have the right to make submissions as well. They are not limited at all. Anna, do you have anything?
Ms Fraser: I can confirm what Peter Howden has said based on his years of experience on the board, from the point of view of somebody who has worked both as a city planner and who has been active in ratepayers' groups, as well as somebody who is active as a lawyer. You cannot underestimate the efficiency and the sharpness of mind of the ratepayers when they are looking at consultants' reports. When an issue is brought up by them, I think you will find that the board members query it and investigate it further. There often are municipal representatives, for example, councillors and aldermen, who go to bat for ratepayers' groups and who will appear, sometimes in support of what their council has proposed, sometimes against what their council has suggested. The professional planning staff with the municipalities have a professional obligation to give their opinions, not just what they are told to say by their councils but what their professional opinions are, and they can often be extremely helpful to the ratepayers in explaining these matters.
Something I also agree with Peter about is that it is amazing how often you have people say that they did not hear it before, they would have appreciated a fuller explanation at the local level, something like that. Sometimes you hear people say, "If I had understood that, I wouldn't be here today." Perhaps, as Mr McGuinty says, this goes to the pre-hearing matters, the narrowing of issues, the explanation of things and the full exchange of reports so that people have as much information before the commencement of the hearing as is humanly possible.
Mr Kruger: I would like to touch on that one point. The ratepayers have access to the reports that come forward. They are public documents. It is not uncommon to have before the board a position of council and a position of the land use planner that are entirely different. The ratepayers know that and will use that to their advantage.
Mr Colbourne: Briefly, in the worst-case scenario in the major hearings, the exchange of reports is in a lot of cases not done in advance of the hearing. In the worst-case scenario it is done at the time the witness is going to be examined. In the railway lands hearing, as I indicated, we have three individuals who do not have formal party status but who have been there all the way along, and every witness has been examined by these individuals.
In advance of the hearing, I know the concerns of those individuals and the areas of concern they have from their pre-filings, because every application arises from an appeal or an objection filed by a ratepayer; every municipal council decision we get does. So we know the nature of their concerns, and once they start to examine a particular witness called by the developer and/or the city, as the case may be, we can build on that with them to get a real response to their concerns.
In my experience, which is fairly significant over the years, I do not think I have ever been accused of cutting anybody off or lacking recognition of any particular concerns, nor do I know of many members who have had that. Individual applicants have been offended by an ultimate decision, but it is a 50-50 win situation, in any event. I do not think we have been unduly criticized for that lack of sensitivity.
Mr Kruger: Just to finish off, I would like to say that we are going more and more to the pre-filing of all written evidence, whatever is going to be the evidence of experts, so that when you start a case there are no surprises. We are not involved in murder trials. We are involved in trials where there should be complete disclosure by everyone. I just reinforce that the ratepayers out there are not dumb.
The Chair: We are going to break for lunch. We will resume at 2 o'clock with Mr Perruzza continuing his questioning. At this point, I have five other members on my list.
Mr Kruger: Just before you retire, are we on deck again tomorrow?
The Chair: Unless we can abbreviate the responses, perhaps, and be finished this afternoon.
Mr Kruger: We will try our best.
The committee recessed at 1204.
AFTERNOON SITTING
The committee resumed at 1405 in committee room 1.
The Chair: If we could come to order, we will continue.
Mr Perruzza: Thank you, Mr Chairman. Just to follow up a little bit on where we left off, essentially we were talking about the board and how it deals with the information and the evidence that is before it when it is in the process of adjudicating a decision. Some very good and useful information came out of the last exchange where some of the board members and the chairman of the board indicated that a lot of the community groups and individuals who appear before the board without lawyers and without having generated extensive professional reports to substantiate or defend their position and their claim are duly being considered. That was in a way reassuring to hear. However, I do not know in practice, and maybe this is something that we can go into at a later date in a little more detail.
I want to wrap up very quickly and I have two questions. In our binders we have a list of the appeals that the board deals with, and I want to know from the chairman of the board, if he has the information, in regard to the major applications that have gone to the board with a particular municipal position, how many times a decision has been reversed, refused, turned down by the board. What are we talking about percentagewise -- 50%, 80%?
Mr Kruger: That is one of the statistical pieces of data which we do intend to keep in the future. We do not keep it. I can tell you by sight of the appeals. I read all of the decisions, of course, as they come out, and it seems to me that in at least 50% of the cases a person who appeals will win. This is particularly so in the cases of consents and variances.
Mr Perruzza: Hang on a second. I am not talking about the variances or the minor zoning bylaws. I am talking about the major decisions, the big developments that come before the board. How many of those are actually turned down by the board?
Mr Kruger: Rather than turned down -- and I would also have my colleagues comment on this -- as a result of the evidence that comes forward, there are changes that are quite often made.
Mr Perruzza: That was going to be actually my follow-up question, but I wanted to know if any have been reversed or turned down, say, within the last two years -- outright refusal of major development applications.
Mr Kruger: Any outright refusal? Yes, let me give you a case, the West Carleton hearing which went on. This is where there were wetlands involved and a developer wished to build a golf course. That was fine for most of the holes, except four of the holes intruded on what were wetlands. That was a major hearing, and that particular bylaw was turned down. That occurred a couple of months ago. There is also Sydenham, the cases of consents, and Mr Murdoch would be aware of these, where there was a development that was turned down, again based upon the evidence that came forward.
There is one thing perhaps I should also say for further information. Anyone who comes before the board is sworn and, if there is a gap in the evidence, we have the power of subpoena. Normally we do not have to use that, but we have made it clear to the ministries, if there is a gap, we will not hesitate to use that. But most of the ratepayers would do it. So those are two that immediately come to mind where there was an outright turndown.
Mr Perruzza: These are bylaws that were passed by the municipality or the regional council and reversed by the Ontario Municipal Board.
Mr Kruger: Yes, that is right.
Mr Perruzza: Okay. My follow-up question would he the frequency of change and to what degree are there changes in the kinds of decisions that come from municipal councils. I guess we look at a minor variance that comes from a committee of adjustment and you were saying that is about 50%.
Mr Kruger: About 50% of those who appeal.
Mr Perruzza: Complete reversal.
Mr Kruger: Yes, they would be successful on appeal. That is just by a sight, a look. These are people who have applied to the committee of adjustment and for some reason were turned down at the committee of adjustment.
Mr Perruzza: Okay, the people who have been turned down. How about the decisions that have been approved by the committee of adjustment that would come before your board and are actually reversed or turned down?
Mr Kruger: I have no figures. It would have to be from memory of the individual members. We can canvass them right here and now and just see if they can be of a help.
Mr Perruzza: If we can get a rough estimate or a rough idea. My other question is actually fairly detailed or specific. The ones that have been altered or changed, to what degree? You receive a decision or a recommendation that has been put forward before you by a municipal council. You have an applicant. You can refuse it outright or you can modify it. To what degree? Do you generally try to find a middle ground for both parties?
Mr Kruger: Yes.
Mr Perruzza: On the ones that you do vary?
Mr Kruger: It depends on what is before us. Let's go through the members and see if they can try to answer those questions.
Mr Howden: My problem is that I am having trouble with your assumptions. You are assuming what? Just give me what you are assuming, because this is only a bit, a part of the work we do. We get all shapes and sizes of things. These are just ones where the municipal council has approved?
Mr Perruzza: I am trying to understand the role that you play and I guess my questions have all been directed --
Mr Howden: But you are assuming only part of our workload. As soon as you say "ones where municipal council has approved" -- that is just a part of the bylaw appeals that we do. Some of them have been refused by municipal council and they are fighting it before us, you see. You are taking out part of our workload as soon as you make that kind of assumption of only taking the ones where the bylaw has been passed. Did you mean that or not?
Mr Perruzza: I know the ones that municipal councils have turned down and the reasons why they turned them down or I have a general idea as to why they do that.
Mr Howden: I doubt that you do.
Mr Perruzza: I purposely excluded that part of your work.
Mr Howden: That is on purpose. Okay, as long as you understand that you are just narrowing it down to one part of what we do. So you want to know about the ones where a municipality has passed a bylaw to allow a development, how many of those have been turned down or changed in some way.
Mr Perruzza: In rough numbers, percentages.
Mr Howden: I cannot. I do not know. I wish you had told us beforehand. We could have got you that. All I can tell you is that I have dealt with everything, for example, the North York official plan which covered the whole downtown area. It was not just one development. We refused to approve it until about 10 different things were looked after and dealt with seriously in that official plan. You can call that a turndown or you can call it changing it. I do not know. I just said, "In effect, we do not find this acceptable until you do one, two, three, four, five." They did, they came back and then they proved why they should be allowed to modify it in certain ways.
The Rosedale subway station again is a difficult case to categorize. The municipality was trying to zone it so a development by the TTC would not go ahead. We upheld the city of Toronto on that so that a major office building that the TTC wanted to put in that sort of park area at the end of the central area did not go in. But we were caught there between a municipality saying no and a developer, another public agency, by the way, that wanted to develop.
I am having trouble with the categorizing that you are doing. Basically, we do allow some appeals and repeal certain bylaws, but I cannot give you numbers. All I can tell you is for the people who were involved they were all major. If you just mean Toronto when you say "major developments" -- is that where you are narrowing it down to, just Toronto?
Mr Perruzza: Not necessarily. I suspect that the more rural communities and other urban centres have their processes as well.
Mr Howden: Yes.
Mr Perruzza: I am just trying to get an idea.
Mr Howden: Sure.
Mr Perruzza: I put these numbers before you, these appeals that are before you, and I guess the numbers --
Mr Howden: I think you are entitled to that. We can probably get that information for you. If you want a percentage, I am sure they can get that information for you.
Mr Kruger: It would be my assumption from looking at them that the number of times outright that we overrule a council and say, "That's bad. You can't have that," would be really the exception. The number of times that we would say, "This has to be modified. There isn't enough on this and you should look into this and you should go back," that is what I would say in about 90% of the cases. When we come into conflict with --
Mr Perruzza: Can I just stop you? When you say that, what do you base your evidence on?
Mr Kruger: Planning evidence.
Mr Perruzza: And that is to say that the council has not duly considered that evidence.
Mr Kruger: Sometimes.
Mr Perruzza: That is what the assumption is, correct?
Mr Kruger: Yes, that is right.
Mr Perruzza: In your opinion, for what reasons?
Mr Kruger: It has to be consistent with the act. It would be for good planning reasons; it would be for other evidence that might come forward from a variety of sources. It is different to a council. These witnesses who come before us are put under very rigorous cross-examination, so you test the evidence.
It is not uncommon, as I have already said here before you today, to find that the planning department may have a different view to the council on something. We have to weigh why is that so. Outright turndown is seldom it. What we would say is: "There seems to be this deficiency. Could you look at that?" We see so many conditions. Generally, at the end of the day you will find that the counsel for the municipality generally is not bucking that. They will generally say: "That's fine. We will get back." A lot of these things end out by consent at the end of the hearing.
Mr Perruzza: It would be interesting to see some of the data. My last question is not along that line at all. You mentioned earlier, and it related to how you prioritize and schedule your hearings, that you give affordable housing precedence.
Mr Kruger: That is number one.
Mr Perruzza: Are there any other criteria? Are the rest of the appeals first come, first served?
Mr Kruger: No, not necessarily. As I said before, it depends on the hearing. Is it going to have an effect upon the recession, employment, things of that type? Where it is located? The complexity of it, the number of objections out there. How long is a hearing going to take? We have to spot that into our calendar. Is it going to be a thing where I need really experienced members on it or could newer members take it?
There are a variety of interconnecting factors that have to be brought together. It is no such thing. As an example, what we have right now is the Etobicoke hearing. We had representation by both the government lawyers and the lawyers for the municipality, "Let's have another pre-hearing," and so forth. But we also had representation from other people at the hearing who said, "No, set a date," so we set a date for it. The consideration of that was the availability of the members, how long it was going to take and just where this would come. It is a very important development. It is going to set the mood for right across the waterfront. All of these things are balanced.
Mr Perruzza: It sounds like the decision has been made already.
Mr Kruger: What on? On Etobicoke?
The Chair: Mr Perruzza, I have been pretty fair with you because of your concerns expressed earlier. I would like to move on to other questioners and give you a chance later on, if you are finished now. I am going to cut you off now in any event.
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Ms Haslam: This is just a supplementary that Mr Perruzza has brought up. Is there any particular case that would be pushed back and pushed back because other things have come forward that are more important?
Mr Kruger: No.
Ms Haslam: Is 13 months a very --
Mr Kruger: It is standard, yes.
Ms Haslam: Okay. There is nothing that has maybe gone on beyond 13 months.
Mr Kruger: Except if adjournments were necessary and the parties to it could not get there.
Ms Haslam: But it is within 13 months.
Mr Kruger: Yes.
Ms Haslam: It has caught some sort of the process.
Mr Kruger: That is right.
Mr B. Murdoch: I have got about four things here, but most of them are pretty quick, I think. I know you expressed concern about getting new members at the present salary that is being offered, and I would just like to say that by looking over the list, I am sure if you had some more rural members on the board, maybe like farmers with the qualifications, at the present day's salary I am sure they would be glad to take the job.
Mr McLean: Provided they were qualified.
Mr B. Murdoch: Well, provided, but I am sure there are a lot of farmers out there. One whom I know of is well-qualified, and I know of other ones who would be.
Mr Kruger: That is right.
Mr B. Murdoch: They would be happy to take that salary, so I do not think there would be any trouble there.
Mr Kruger: We need balance, of course.
Mr B. Murdoch: I was going to say, though, that I notice a lot of your work is in the rural areas with severances and things like that. Some of these people would be quite qualified.
Mr Grandmaître: You are committed for three years anyway, Bill.
Mr B. Murdoch: You do not think I can get this job, then. Okay. Well, all right. I was just getting a plug in. The second one was, I was glad to hear what you said about lawyers at the hearings. Now, I can go back -- and I have been involved with the Ontario Municipal Board for quite a while -- and I can remember some OMB officers chastising people because they did not have a lawyer there.
Interjection: That is terrible.
Mr B. Murdoch: I know. I thought it was terrible at the time, so some of my impressions of the OMB were not as good as maybe they should be.
Mr Kruger: I am delighted they have improved.
Mr B. Murdoch: That is what I was going to say now, and with your comments today, that is good to hear. But I think somewhere along the line you are going to have to get this message out to municipalities, especially in the rural areas, because being on AMO, I would be surprised if I would talk to anyone over there when I was at a convention if they were going to have some of their people go to an OMB hearing, regardless of what it was. I would suggest they take a lawyer, because I always have. Any constituents that I had, they would say: "We've got an OMB hearing coming up. What are we going to do?" And I would say, "Get yourself a good lawyer first or there is no sense going." That has been my experience.
Mr Kruger: That is a valid point. The communication of the board, Mr Chairman and Mr Murdoch, I must tell you, as to the things we do and getting out into the communities we serve, has not been what it should be. That is why I was talking about focus groups, bringing our procedures to AMO and places like that, asking them for their input. Not that we have not been conscious of it; we just have not had the resources to be able to do it. But that is a valid comment on the board.
Mr B. Murdoch: I would like to see you at a panel at AMO or the Rural Ontario Municipal Association or some of those organizations, because in the past the past chairman had been there but I found him quite unfriendly towards the municipalities.
Mr Kruger: I have been invited by AMO, the Ontario Good Roads Association, the committee of adjustment group. I am going to be out travelling quite a bit.
Mr B. Murdoch: That is what you need, because if this is true and you do not need a lawyer -- in a lot of cases, I do not think people do, but it is unfortunate they feel that they are going to have to hire a lawyer to go to fight the case too. It adds a lot of money.
Just in that same instance then, we talked about $125 to appeal. Not necessarily all the time does the person who is appealing have to pay this. I maybe should clarify that for Anthony, because he mentioned that, "How much does it cost for somebody to appeal a hearing?" You talked about putting it up. I would not have any problem with that, either, but in some cases if a developer has put in for a development and the municipality has approved the rezoning and someone appeals the rezoning, the developer or the municipality -- it depends -- has to put up the money, not the person who is appealing it.
Mr Kruger: Yes, that is good.
Mr B. Murdoch: I do not know whether that is right or not, though. There are some times I do not feel that is right.
Mr Colbourne: Excuse me. If I can interrupt here, the current proposals seek to change that position. The municipalities do pay on bylaws and official plan amendments that they have instigated and somebody has filed an appeal. They do pay now the $125. There is a proposal to change that; the appellants would pay.
Mr B. Murdoch: That only sounds right. If somebody does not like a decision that a municipality or someone has made, then maybe he should pay, because I know in severances the person who wants to appeal pays the money.
Mr Kruger: Yes, right.
Mr B. Murdoch: I just wanted to make that clear, because it did not sound that way.
The last one, and you maybe can explain this to me, because I have never heard of it before, is that if somebody has appealed a decision for a hearing, you mentioned that the municipality could apply to have that hearing dismissed on the grounds that it was frivolous. I did not know about that.
Mr Kruger: To the board. Yes, you can do that.
Mr B. Murdoch: Can only the municipality?
Mr Kruger: No, anybody. An individual can. In fact, it mostly comes from individuals. That is under the Planning Act.
Mr Grandmaître: I would do it automatically.
Mr Kruger: You would.
Mr B. Murdoch: I know people can appeal the decisions.
Mr Howden: The bylaw, subsection 34(26) of the Planning Act, talks about it is not narrowed down to just municipalities. Any party can bring the motion to have a finding made that there should not be a public hearing because of lack of grounds.
Mr B. Murdoch: That was new to me. That was interesting to hear, because I know probably some municipalities would like to ask that sometimes.
Mr Howden: We do not cut off people's right to a fair hearing of course just like that either, but you do have to show that the objection is either frivolous or completely groundless, or we have no jurisdiction to deal with it, that kind of thing.
Mr B. Murdoch: I do think, though, that some time somebody should stand in in a lot of these cases, and they are frivolous objections. The minister can also do that, can he not?
Mr Kruger: Yes, the minister can.
Mr Howden: On official plan amendment.
Mr B. Murdoch: Yes, sorry. We are talking about official plan amendments. The Minister of Municipal Affairs can. I know they do not, but it would be nice if they would.
Mr Kruger: I am finding that, more and more, that section of our act is becoming known to participants and they are writing letters to us asking that this thing be put aside because it is frivolous. That is probably in part due to the length of time it takes to get a hearing.
Mr Fletcher: First, let me say that from a lot of people I have been talking to, as far as the OMB is concerned, your reputation and what people think of you is not very high. They think you are just another slime organization in the back pocket of developers and municipalities and that there is no sense to even try to go to the OMB. That is a perception. That is not my perception. I have met you and you look all right to me so far.
Mr Kruger: I am delighted to see that there is no slime on me anyway.
Mr Fletcher: That goes along with what Mr Murdoch was saying about your perception in the public.
Mr Kruger: I would not dispute that. There has been a perception out there at times that we might have been perceived to be a developers' board. What people do not realize is that we deal with as many environmental matters as probably any other board.
Mr Fletcher: I understand that. I have perhaps three questions. I was just looking at the makeup of the board. As Mr Murdoch was saying, it is nice to see the odd farmer thrown in. I do not see as many environmentalists' names in here. In fact, I do not see any at all.
Mr Kruger: When you say environmentalists, I just happen to have one member of our board who came from the Environmental Assessment Board, Mr Eisen. He is a lawyer. The people who are here with me today, when you say environmentalists, I think nobody would dispute that they themselves have a very strong feel for the environment in the hearings we are having.
Mr Fletcher: Let me clarify that: environmental activist, rather than someone who has a strong feeling.
Mr Kruger: Activist? We cannot be activists.
Mr Fletcher: A lawyer is an activist.
Interjection: You are not here to argue.
Mr Fletcher: I am not here to argue, I am just getting questions, you are right.
Mr Kruger: There is a difference between an advocate and an activist.
Mr Fletcher: Okay. That is great. When you hired your consultant, did you say the cost of that report was $125,000?
Mr Kruger: That is right.
Mr Fletcher: And that was just that the consultant came around and asked everyone on the board or all people involved with you.
Mr Kruger: No, the consultant did extensive interviews with the municipal bar, with other levels of government. They spoke with AMO. They did a fair amount of research.
Mr Fletcher: When you look at the OMB -- I want this to come from you, not from anything that is written -- what do you see as the function of the OMB, as far as you are concerned and as far as the public who use it are concerned?
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Mr Kruger: In a capsule form, the OMB is an adjudicative board that operates in an adversarial environment. When you come to the board, there is a winner or a loser. We deal with matters that primarily are associated with land use, but that touches all things, socioeconomic -- it touches everything that might be associated with lands. It touches group homes. It touches everything.
Mr Fletcher: I know what it does technically. I am asking what do you see the board --
Mr Kruger: I see it as a board where the average citizen has a right to come without legal counsel to be heard. I see it as a source that if they feel they have been disadvantaged through some process of a municipal council, they can come to the board. Everything we do is open. There are no secrets.
Mr Fletcher: One more question. Is the board fulfilling what you have just told me?
Mr Kruger: At this point in time?
Mr Fletcher: Yes.
Mr Kruger: Yes. I think the board is fulfilling that but, and I have admitted it, we have not got this message out as to what it is about. We have to do a much better job that way. We have to improve, internally, our product. We have to have better case management. I think the position we have started on by expanding the membership of the board to touch more communities, we have to do that.
One of our great problems is there are quite a few people who would like to come on the board, particularly women, and several of them are perfectly bilingual, but they have young families. To be on this board, you have to be willing to travel all over the country.
Mr Fletcher: Take your children with you.
Mr Kruger: That is a bit of a disadvantage to certain people. We try to accommodate that as best we can, but it is a disadvantage.
Mr Fletcher: Supply day care.
Mr Silipo: I would just like to say before I ask a couple of questions that I have that I am not sure what the perception from Mr Kruger and the other members of the board who are here is in terms of some of the questions that have been asked, but I just want to make it clear that at least from the people sitting on this side of the table, the questions that have been asked represent the particular perspective of the individual members.
Mr Kruger: I understand that.
Mr Silipo: I wanted to just pursue a couple of questions. The first few actually have been asked in various ways and I just want to sort of clarify that I have understood and perhaps pick up any additional comments.
Although I know that there was a concern expressed around the salaries of the members, I think there was an additional comment that was expressed, particularly around salaries of the staff people. Did I understand that?
Mr Kruger: Yes.
Mr Silipo: In fact, I wanted to hear a little bit more about that second part.
Mr Kruger: About the staff salaries?
Mr Silipo: Yes, because I was concerned about the problems that you identified.
Mr Kruger: We are in the process of attempting to correct that. The consultant's report pointed out the inequities in the salaries and said, "You have to do something about that."
What we have done in our submission to the government on our estimates for this year, and we have discussed it with the Human Resources Secretariat, is looked at the job requirements of these people. We have gone through it systematically and said, "Well, that job should be rated by such and such," and that is now being incorporated into our estimates, which are on their way to Management Board of Cabinet. So we are in a corrective mode, if you will, to bring that forward.
Mr Silipo: I asked because I wonder whether it may be something that would be useful for this committee to have some information on, to see whether there is a role we can play to assist possibly in that.
The other area that I also wanted to just clarify is this whole issue of the membership on the board as a career path, as opposed to something that I guess might be, in general terms, called term appointments or whatever other way one does it. Am I understanding correctly that from your perspective as chair and members of the board, you are saying that there is clear merit in a board like the OMB -- in our, in effect, having appointments to such a body being viewed very clearly as career appointments?
Mr Kruger: Absolutely. As a matter of fact, the members on the board, who are here, if you want to haar from them individually, can tell you from their own personal experience just how strongly they feel about it and why they feel it.
Mr Silipo: It is the "why" that I really wanted to get into.
Mr Kruger: All right. They can tell you their experience of how they got on to the board and what their perception was in coming to the board.
Mr Howden: I just want to make two points, I guess. First of all, I was a litigation lawyer in Barrie before I came on this board. Unlike Mr Fletcher's perception, I acted mostly for ratepayers' groups, people who were outside the system in regard to this board and in regard to a number of other boards that I appeared in front of.
I had a lot of clients and I had a lot of other lawyers referring cases to me, and frankly, my practice was doing quite well, almost too well. But I wanted to do something in the public sector, finally. I had had 20 years or so of law and I thought I had really done as much as I could as an advocate. I wanted to start having some say in the decisions in this province and I was attracted to this board because of the public interest aspect of it. This affects communities, neighbourhoods, environment, all of those things, and I feel very strongly that this, for me, was a career move, maybe for the rest of my career; certainly the public service probably is, in one way or the other. I would not have shut my doors if it was for three years, I will tell you that right now. I think we need much more of a commitment than just a three-year appointment for somebody like me or Anna or some of the others from the private sector to come in.
The second point is I appeared in front of five other boards while I was a lawyer. I can tell you that I could probably serve effectively on any one of those other boards -- and I will not get into them; I just am telling you the difference in the range demanded of the person -- fairly adequately with a day's work.
I have appeared in front of at least -- well, I will give you another number. Those were specific appearances where I did my homework, did okay for the client, in fact went back to one board several times because we were successful. But it really did not take the kind of preparation that it takes to work on this board, where the range is across all of expropriation law; all of assessment law, on which whole texts are written; all of planning, which is more an art than a science and which requires a definite feel and sensitivity to community values which just cannot be taught, and -- what was the other? Anyway, that is what I am trying to convey to you. There is a range here that is more like a person in a court, where your experience as you go on continues to fortify you for the next cases that you are going to deal with. It is an accumulative process and I would hate to see that lost every three to six years.
Ms Fraser: I realize that at a forum like this you do not necessarily want to reduce things to the personal level, but sometimes personal backgrounds can be useful and it might be useful to some of you, just as Peter has told you a bit about his background, for me to tell you a bit about mine. I have been referred to by our chairman as being a fairly recent member, and it is true, I am. I feel like one of those people whom you hear as being an overnight sensation at something when they have actually been slogging in the trenches for 22 years.
I worked with the provincial ministry. I was with the Ontario Housing Corp from 1968 through 1972. Then I was in the non-profit co-op development field for a couple of years until the federal government changed section 45 of the housing act and we lost all the money, which happens in the non-profit co-op sector from time to time.
I was then hired by the city of Toronto as a city planner. At the same time that I was doing that, I was a community activist and wrote the funding brief and established the South Riverdale Community Health Centre, which is going to this day. I also was the planner who was responsible for the area with Canada Metals in it. I became keenly aware during that time that there were extremely difficult problems that I could not deal with as a planner solely, nor as a community activist, and it was at that point that I decided to go to law school. I had always wanted to serve the public and feel useful in the public sector.
I worked with private law firms for a number of years, always with the ultimate goal of wanting to feel really useful and try to make a contribution, because I think it is a great privilege to be able to work on behalf of the public in a truly responsible way. I was never quite sure what shape that would take, but when the opportunity came and I was made aware that there was a possibility of joining the board, I realized that would be a very good time to do it.
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As our chairman has mentioned, many of us who join the board do not join as 25-year-olds. We tend to join in our late 40s and our 50s. In part, that is because you need a fair amount of experience under your belt to be able to deal with the complex issues. I like to think that I am more useful now than I would have been when I was, say, 27 or 28. I hope that as a person who is going to be 50 this year, I might bring more to the board than I could have 20 years ago.
I was on the point of being made a partner at a major downtown law firm. After I had expressed my interest in joining the board, the request to submit myself for interviews coincided exactly with when I was being made a partner. It was a crucially important decision for me to make. I did not hesitate once I had looked at what I would be doing, and that was a major decision for me to make. I never seriously thought that it would simply be a three-year appointment, partly because I was told the matter was under review. Also, it did not strike me as being sensible that anybody would be brought up to speed and then told, "Oh, well, you can go off and do something else now," because it is a terrific investment that has gone by the board.
You also, I think, tend to join the board later when maybe your responsibility to your family diminishes. I am a great believer in day care. My son who is 19 entered day care when he was first four or five months old at the Canadian Mothercraft Society. Then he was up at the day care centre at Jesse Ketchum until he was 10 years old and thought he was far too old and sophisticated to still be there. My family jokes that I am allowed home on 48-hour passes now, from Friday night until Sunday night. Day care is not sufficient if you are off in Thunder Bay and your family is in Barrie or Sudbury.
I am taking too much time, but I wanted to give you a little bit of insight into how one of the women members of the board got on the board, why it is a career decision for me and why I want to maximize my usefulness.
Mr Colbourne: I am perhaps one of the two exceptions on the board. I was appointed in 1968. I am a chartered accountant by background. At the time, I had articled with a major CA firm in Toronto, an international firm, and was about to enter into a partnership with a smaller CA firm in the municipal finance field. I was appointed in 1968 for that particular purpose. We have a major role to play in the finance and control of debt, so far, for municipalities in the province. I was brought on for that particular purpose.
By way of background, my father was a carpenter who developed into a home builder, who developed into what some might call a developer now. He was a very modest developer. I had some familiarity with the planning background therefore.
My background as a CA has helped me, I think, on the administrative side of the board. For the last three chairmen at least, I have been involved in the administrative section, looking after, initially in 1983, the major backlog of assessment appeals. There was a special team of the board that was put together to clear the backlog that was neglected by the county court. That has been one of my particular interests, and now, with the latter two chairmen, being involved in the calendar.
Being a chartered accountant, I do not come with a background of law, but I have sure developed some background and some experience in the law field, to be able to handle the motions that are put before us on sort of a daily basis. I am not sure I made the career decision at that time. I looked upon it as an opportunity, making a choice between a partnership and the services I saw on the board. I have, I think, grown in the role and I have thoroughly enjoyed the role of a hearing officer, if I can put it that way, much more than the administrative side. The administrative side has its problems. I enjoy the participation in the hearings. There are two of us who have been there 22 and 21 years respectively. We made it a career.
The Chair: I just want to say that I understand the strongly held views of the members of the board on this particular issue, but I want to say too that those answers took up a significant amount of time. Obviously, we cannot attribute any of the backlog to this sort of wordiness, can we? Excuse me, please.
Mr Kruger: No, Mr Chair, I hear and as chairman I will be mindful of your admonition.
The Chair: We appreciate how strongly held your views are on that particular issue.
Mr Kruger: Very strongly held.
The Chair: As I said at the break at lunch, I would encourage you in the remaining time left, if we wish not to have your presence here tomorrow, to try to be as concise as possible.
Mr Kruger: We will try to be incisive and quick.
Mr Silipo: If I have understood the sort of general discussion around the OMB in terms of generalizing the two perspectives, those that strongly support the continued existence of the OMB I think generally see that it categorizes the need for its continued existence as being a place sober second thoughts, where the average citizen or group or municipality, as the case may be, will have an opportunity to sort of further its particular position and make sure that everything is being considered properly.
On the other hand, there is the view that says that really the OMB ought to either not continue to exist or its powers be severely curtailed because it is no more than supplanting the rights of the elected councils. Can you talk a little bit about it. Obviously, I am assuming from the kinds of things that we have heard that you obviously see a need for a continued role by the OMB, subject obviously to the kinds of things that you have said. But I would like to hear what other comments you have on those two perspectives.
Mr Kruger: Yes, it is quite valid. I know there was a time in my career when I was an elected member of a council. I had a love-hate relationship with the board; I must admit that. I had my speech number 34 that I used to pull out in hate of the board, but let me focus it on the type of hearing and what is going on in this community generally.
If you have an affordable housing hearing that comes forward, particularly in the time now that we are coming up to municipal elections, a lot of the appeals that are being made to us are where the municipal council for some reasons, ratepayer reasons in the area, may have turned the matter down on a pure political basis.
In those hearings that come forward, we hear from representatives of the public who might not have had the type of hearing airing they felt was necessary. Now, we do not approve every one of these. There is a provincial policy which we must give weight to. It does not say that just because there is a housing policy, we are going to override everything out there. It is not. In fact, I have turned down -- not I but the board has turned down -- two cases recently. It is almost, in a way, if we approve it, we hear from the councils, and yet we have had some members who have been approached by council members after at some other hearing who said, "You know, politically, we just couldn't have put that through, but it was the right decision."
On the other hand, if we turn the request down, we hear from the advocates that we have done the wrong thing. So we are caught in the middle and the only way you can survive in that type of environment that you have to have integrity and you have to make sure all the facts are out.
Unfortunately, it gets beyond just land use planning; it gets into socioeconomic values. After all, the government of the day sets forward policies, and as I say, we must give weight to it. So there is an argument to be said that all right, say the OMB does not exist. In fact, back in 1971 York region -- I was the chief administrative officer of Metro at the time -- said that what the OMB should do is the council should make the decision, the OMB should then hold a hearing, then tell the council everything it has found out and then the council will make the final decision. That was their answer.
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Mr Silipo: Maybe the council should do that.
Mr Kruger: That has just reared its head again, as a matter of fact. If you do not have the OMB, what are you going to have? Does an individual have the right of appeal to some body against a decision of the municipal council? Should the municipal council be it? Should the committee of adjustment? Should it stop there? If it does not, then it is probably going to go to the courts.
Mr Silipo: I guess that is more the aspect that I was interested in, not the kinds of issues, but the basis on which you see that your role is sensible, is useful or is appropriate. I understand the kind of political implications that you talked about and that whole aspect of things, but quite frankly, I would not want -- I do not think you have said this, nor am I in any way saying that what you are saying is really the major reason for the continued existence, that it is in order to give politicians a way out of dealing with difficult decisions, although I am quite conscious that sometimes, as you have described, it is used in that way.
Mr Kruger: I would never, ever say that of politicians.
Mr Silipo: No, you would not, but you are clearly saying that there is a role beyond that aspect of it that you think some group or some body has to perform.
Mr Kruger: I must tell you from a personal level. My background is both psychology and economics and I have had a fair amount of experience on administrative tribunals. From my experience in the municipal world, and I have spent a lot of time there, I did not appreciate until I got on this board just how much this is looked upon as a court of last resort by the individual in the community. I see those letters. I see the types of questions that they have. I have grown to appreciate very much that if you did not have the board -- I have wondered to myself -- what would you have in its place? There needs to be some appeal mechanism. If it is not this board, then you have to find some other by right.
Mr Silipo: I have one last and I hope quick question. You just touched on some of it in the last answer and also earlier on when you said that you often hear from people, whether or not they win a particular decision, that their pleas -- in fact somebody has pointed out a particular aspect to a problem or a decision that nobody else had done prior to that. As you are going through the decision, you no doubt come across things like that whereby you, as members, might conclude, "If only people back at the council had actually done this a little bit differently in explaining to the public, etc, maybe we would not be dealing with this issue now."
Are there mechanisms that allow you, when you come up with those kinds of things, especially if they are things that recur, to be able to filter back either to the councils or through the ministry, whatever the appropriate way is, suggesting procedures or changes in procedures that municipalities ought to follow that maybe might diminish the need for people to go to the OMB?
Mr Kruger: Generally, we do that via the decision that we render and in the written reasons. That is why we reserve on a lot of these decisions. You will see there are things within it. I have some excellent examples of environmental matters that have come forward where we have made suggestions to the ministry that it ought to look into its standards, for example, for septic tanks, which we found in one particular hearing were terribly outdated. We run into that all the time.
If it is important enough what I do as chairman after the decision is rendered, because due process demands this, is send the decision directly to the deputy minister or to whoever because there is a deputy within the system. I will say, "Here, you better take a look at this because there's something here." I have found, particularly with the Ministry of the Environment, that where that has happened it has got down to its planning group. A lot of this has occurred when we are talking about the Niagara Escarpment, particularly some of those hearings. They have taken it and they have looked into it.
I go up and I speak to these planners myself, not on a specific case, but the message gets through via those devices. Also, as we start to network better than what we have been doing at the staff level, there is a lot of dialogue goes on as the case comes forward. With the respective ministries we say: "Did you think about this? This thing is coming forward. We might have a difficulty here." So there is a lot of that.
Another device that we will have is as we look at the legislation. As I have said before, the members will pick up: "This doesn't seem to work. Maybe there's some other way." All of that gets filtered. Generally, if it is via the decision, it is by myself to the deputy minister and so forth. So we are starting to bring in those network devices, but it is an exceedingly valid point, sir.
Mr McGuinty: I would like to please touch on the salary aspect with, I think, a new dimension. Mr Kruger, at the outset you indicated, I believe, that the salary for a new member is in the range of $85,000?
Mr Kruger: Yes, $84,000.
Mr McGuinty: How does that compare, do you think, with an equivalent position in the private sector?
Mr Kruger: If you are talking about the type of planner we would want to get as a director of long-term planning or something like that, they are pushing $90,000. If you are talking about a lawyer out there, you are talking about $95,000. As a matter of fact the city of Toronto about three months ago advertised for a lawyer to do prosecutions and things of that type and it said the starting salary was $93,000 and change. If you are talking about attracting people from the private law firms, you are talking about a much larger sum.
One of the difficulties I have, and it is a very real difficulty, is that I have members on my board who have the QC designation who have been there on the board for 17 or 18 years. In the civil service now we have what is called a CC 2, for example, a lawyer who is the working level lawyer within the Ontario public service, who will get $96,000 or $98,000. Yet my ordinary members who have had 17 years' experience at this are earning less. That is a cause of great discomfort to the members and it is also one of the impediments that I will find when I talk to lawyers outside.
Mr McGuinty: Something I have detected just from what the members have been saying, and I think it is something that is very commendable, is that in addition to the financial reward this job provides them with an opportunity to render a public service.
Mr Kruger: Yes, absolutely.
Mr McGuinty: Given that, I would think that we should not be trying to set salaries that are equivalent to the private sector, for instance. What do you think of that?
Mr Kruger: I think whenever you join the public service you make a sacrifice. I know when I joined the public service many years ago I made a very conscious sacrifice, and I knew that was the way it was going to be. But you get to the question in your mind, how far should you go down? If I looked to equivalents in the public sector, in municipalities or outside, I would not be talking in terms of those moneys, of $93,000; I would be talking well in excess of $100,000 to attract a member. So in effect I am not looking for equivalents. I am looking for enough that I can convince -- because in the review of people who would want to come to the board, if the only thing they want to talk to me about is salary, I do not have that much of an interest in them. There has got to be a desire for public service. There has to be an understanding of communities.
That is a balance you have to weigh, but surely they should ask and we should expect that they would ask to be compensated reasonably well in comparison with the industry. I am not going after the top at all. To do a proper comparison you are over $100,000. But again, there is a way of going about this. You draw up your job description of what the job requires and entails and then you go out and test it. I would not be looking for the equivalence in the private sector.
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Mr McGuinty: I wonder if I could take that a step further. Does the discrepancy between what members are being paid and what is offered in the private sector constitute a morale problem among the members of the board?
Mr Kruger: The morale problem the board has right now is the treatment the board had in getting a 1.93% increase last year. I am not blaming anybody; it is just the way these things work in a bureaucracy. When they were placed into what is called the ECP level, which is the director level within the public service, they said, "All right, this is the salary you've been getting." There used to be order in council appointments, and the salaries used to go up every year by OIC appointments. They said: "Let's get rid of that, because it becomes very visible. Let's put you on a standard type of thing so you can get the same as everybody else." It sounded reasonable.
So they put them at what is called 104% of the range, not 100%. Then the government came up with a directive last year that said nobody should earn more than 100% of the range, because if you are performing very well you get more than that. Therefore, the salary came down, so that is a factor.
Where I am concerned about the salary is the attraction of the type of members with the background and the qualifications that I would expect to get. If I were to say what is of concern to the members, there are two concerns: we have to get resolved this "at pleasure" or otherwise, and we have to get resolved what is going to be the salary level that is set. But obviously the term and the "at pleasure" is more important. The reason I am looking to getting the salary, just as a lot of the members who came in three years ago, they were somewhere around what was going in the municipal field. Today they are not; they are higher. But they are not really screaming that much about it.
Mr McGuinty: Two more questions. First, is there a quota system in effect now for hiring new members, of any kind, to your knowledge?
Mr Kruger: No. What we try to do is attract the people from all of the communities we serve, as many as we can, who have the qualifications. We look for the qualifications. In the last group, more women came in, more visible minorities. That is because we went out and we knew where some of the visible minorities were. They were lawyers and that, and we said: "Well, they're qualified. Let's see if we could interest them to come to the board." There is no quota as such, but there has to be a balance.
One of the difficulties we have is trying to bring on the board a handicapped person, because they have to be able to drive cars, they have to be able to -- we do not have staff who take all of the documents with them. They have to be able to carry documents and things like this. They have to be able to go up to Timmins on an aircraft and struggle off the aircraft in the wintertime. That is somewhat of a difficulty for us.
Mr McGuinty: There does not appear to be a formal quota system as such, but from what you have told me I think it is fair to infer that there is a certain direction you are trying to take in terms of hiring.
Mr Kruger: Yes, and I think that is legitimate. But I must tell you, if I have to bring on six members and I cannot find the mix of the members, I am quite willing to bring those people forward if they are the only ones who we can attract who have the qualifications.
Mr McGuinty: My last question: With respect to the salary for members, some $84,325 --
Mr Bradley: This is not the members of the Legislature?
Mr McGuinty: No. Is that a base salary, and is there anything in addition to that if it is only a base salary?
Mr Kruger: That is the salary. They do get pensions, they do get benefits.
Mr McGuinty: Expenses?
Mr Kruger: They get expenses, but they have to justify every one of those expenses. You will not get very fat on their meal allowance, I can tell you.
Mr Bradley: How much is it?
Mr Kruger: In a given day, and if you are in Ottawa, you have to be able to live for breakfast, lunch and dinner on $32.
Mr Bradley: That is more than this committee.
Ms Haslam: The trouble is that I have a lot more questions now. There seem to be two distinct areas here. One says we like them with varied background, there is no preconceived expertise, and we are looking at farm people, more women and so on and so forth. On the other hand, you indicated the need -- and Mr Howden brought this forward -- for some very heavy expertise to handle the position.
Mr Kruger: Experience.
Ms Haslam: So my question is, bottom line, if I showed up for a job on your board, and I am not a lawyer, would l have --
Mr Fletcher: She is looking for a job.
Ms Haslam: No, I am not. I have three now. What expertise did the farmer who is on your board bring with him in order to be hired for this position?
Mr Kruger: He had been warden of the county, he had graduated from Guelph, and he had run his own farm with some 700 head of cattle, and had extensive municipal experience.
Ms Haslam: Extensive as a warden?
Mr Kruger: As a warden, as a municipal councillor. He had been on every committee that ever was up in that area, he was on planning and so forth, and he knew the area. He is one of the people who did get attracted to the board and who likes to take rural hearings. We have a person also who has a degree in philosophy and in education as well.
Ms Haslam: I understand that. I am just trying to find a medium here between the expertise Mr Howden is mentioning and the other side.
Mr Kruger: Experience.
Ms Haslam: That brings me to another point: the experience you give her in 18 months' training is usually added to a QC or some of that expertise. I am just trying to find out what --
Mr Kruger: I am not speaking out of school. Anna does not have a QC, not that that matters.
Ms Fraser: There are not any being made any more.
Mr Kruger: But there are not any being made any more, that is right.
Ms Haslam: Or you would be one, Anna, I know.
Mr Kruger: I have one person on the board who was in education, who is actually sitting with Anna on this particular hearing, who has been longer on the board but needs more experience and understanding.
Ms Haslam: I am not going to dwell on the salary. I can see the point. I do not perceive that Anna would be making less than what she is making on the board in her private practice.
Mr Kruger: She was making much more.
Ms Haslam: Right. I am trying to draw the connection between the fact that on one hand you say it is not necessary to be a lawyer because we give you 18 months' training; on the other hand, in order to get good people on the board we have to offer them a lawyer's salary, because they will not leave a practice.
Mr Kruger: That is not a lawyer's salary.
Ms Haslam: But you are offering a salary that is much more than some people would anticipate receiving, and I am trying to find the connection between those two lines you have put forward.
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Mr Kruger: If you were applying to the board, as an example, we would look into your background, your life experience, what you have done, how diverse that has been, whether it has been channelled in one direction, and try to determine whether you have the intelligence to be able to absorb the matters that come forward. You can do that from an interview coupled with the background of the individual. If it looks as though this is a good prospect, this is what I would tell that individual: "You're coming on board. There is always a chance of failure" -- they would know that -- "but we have every expectation that you will succeed." We would put you through the program. If you happen to be a lawyer, all the better."
The salary I am talking about -- when I talk about this within the municipal field, you will notice that I gave a planner and I also gave the other. I think when a person gets to the level of everyone doing the same type of job, they should be compensated the same. The question arises whether at intake they should be receiving the same amount of money. You can argue that, but the present position --
Ms Haslam: That is not my question. I think the first part of your answer answered my question, so I will come in very quickly with my second. Do you have a library covering technical, legal and policy aspects that you can draw on? In other words, when you are making your decisions, what type of background support do you have in the way of research?
Mr Howden: Good question.
Ms Haslam: Thank you. I work hard at my questions.
Mr Kruger: We have a very extensive library. Our problem is that we do not have the research staff who can come forward and look at that. We do not have that ability. As a matter of fact, this is one of the issues I am sure Anna will address from her own experience when she came on the board. If I heard it once, I heard it a hundred times from her: "Where is the research staff?" But we are going to correct that. One of the reasons I was attracted to this board was that despite the fact that I have done a lot of adjudicative work in administrative tribunals, I am primarily a public administrator.
Ms Haslam: It just comes back to the fact that the good library in this building helps me do my job. While I am elected, I am not a lawyer and I am not a municipal -- as this is your situation, where you are sitting in a quasi-judicial board, if someone wants to get into that position who does not have the qualifications of a lawyer, then good research is very good.
Mr Kruger: We should provide that. As a matter of fact, we have all types of great ideas where various important cases -- eventually these will be computerized so a member can call up specific cases.
Ms Haslam: Will that open up the possibility of people on the OMB without so much of the qualifications, where the salary is then not a drawing card?
Mr Kruger: I do not know that it will open up without so much of the qualifications. Again, it depends on the individuals. If the thrust of your question is: Do we need as many lawyers on the board? That always is the first choice, but no. I would like to see a mixture of people who are not necessarily all lawyers. We have been very heavy, and that is a product of the past.
Ms Haslam: Again you say, "We do not need all the lawyers," but on the other hand you say, "Without that lawyer's pay, then we do not draw some people in." I was trying to see the connection between the two and how we could come up with solutions to help you overcome that connection.
Thank you, Mr Chair. I am looking at time, so I will pass on.
Mr McLean: Very briefly: Members have been expressing opinions today and I do not mind expressing mine. I have watched the board in 28 years of politics, and I think it is one of the best things we have in Ontario for the ordinary person. It has operated well, in my opinion. I have referred many people to them, and I tell them, "You don't have to take a lawyer with you. Just be up front and tell them the way it is and you'll be treated fairly." And I think that is the way it should be.
There is one concern I do have. When hearings are taking place, our legal system appears to get caught up in the hearings. I remember the one in the Tiny-Penetang area with regard to the landfill.
Mr Kruger: Tiny township? North Simcoe landfill? I remember that very well.
Mr McLean: It went on and on and on.
Mr Howden: Joint board.
Mr Kruger: Joint board. That is the type of thing that comes out of a joint board. This is one decision which the OMB member really had great difficulty with, this particular decision. That was a joint board. That is different rules.
Mr McLean: Joint board with who?
Mr Kruger: Environmental assessment. You have to go through the whole process and so forth. You would be aware of this: this is the one that is in Meaford, in the township of St Vincent. That was very, very difficult.
Mr McLean: How are you going to curtail? Are you looking at that aspect of getting caught up in the legal system.
Mr Kruger: The Environmental Assessment Board is taking a look at all of their procedures -- this is the position of the government -- because I think there is a general recognition out there that under the Environmental Assessment Act it takes too long, it is too expensive, it is unnecessary in a lot of cases and it frustrates me. Every time I have a joint board I have the feeling that my member is going to fall into an abyss somewhere, I am not going to see that member for seven to eight months. The North Simcoe hearing, for example, eight months of hearing time when I just could not afford the member's time.
The government is looking at that. We are attempting to contribute to that. One of the reasons we are trying to codify all of our procedures is to see if there are not quicker and better ways we can do it. I have been in touch with Grace Patterson and some of our members have actually been up there sitting on their committees. We are hoping to be able to find a much more expeditious way -- still fair, still reasonable, still covering all of the points. Because this is a case in point, where after it is all through the process that was followed was not any good, whereas if the process had been known to the people beforehand it might not have come out this way. I know we put right in there and our member laboured over making sure that there was some direction at the end of this as to how it should go.
Mr McLean: But that is on your joint boards. What about where there is a three-member board, probably hearings such as the Barrie-Vespra-Innisfil annexation that went on for months through the legal process, and there did not seem to be any stopping? Common sense could have told them what to do.
Mr Kruger: Those types of hearings, the fact that it is a three-member board -- we have three members on controversial hearings, like this thing I got when I went back to lunch: "Senators suffer setback." That will have a three-member board. The Etobicoke hearing will have a three-member board.
But under the processes we now have, of pre-hearing conferences where all documents have to be pre-filed, where it will be taken as read, where they have to put in a summary of their evidence and they lead evidence based upon the summary, not on page 1, page 2 and this type of thing, there are procedural methods by which you can really speed up a hearing. I think the Innisfil one, for example, that will not occur again.
Mr McLean: One final question, Mr Chairman. A lot of people would want me to ask this question. What will the chairman of the board get for this fiscal year in salary?
Mr Kruger: I am a deputy minister. It is in your documents.
Mr McLean: I know what is in the documents, but that is not the question I asked.
Mr Kruger: I think I will plead that as with any deputy minister, I am in a range. Okay?
Mr McLean: Somebody told me it was $140,000 and I thought I had better ask and find out.
Mr Frankford: An area of the board's work which I do not think has been touched on today, "Capital expenditures of municipalities and school boards." I notice it seems to have the largest number of cases.
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Mr Kruger: I was just going to do that. We have very few hearings on capital expenditures. Bill 229, which died on the Orders and Notices of the last government, said in effect that this was something that would be taken away from the board because we get most of our information from Municipal Affairs and also from the Ministry of Education. We had no problem with that because we have a few staff who do most of these. Very seldom does it come to a hearing. There is a section in our act, section 64, that says where sometimes there is an objection -- I have an objection right now, where Northumberland county wants to put up a new building. All of the area municipalities say no and it just so happens that the members who sit on county council from these area municipalities vote with the council, vote with the county. I saw the warden and I saw all of the opposing things. They went to court. They were unsuccessful. We have to hold a hearing because this is a family dispute. It has nothing to do with whether they have the capacity, so on things like that we will hold a hearing. It is very seldom.
Now under this new act, if you go beyond the limits which are laid down -- that is, the 20% limit -- we may be forced into holding some hearings. We have no problem with that being taken away from the board because that is not hearings. We have very few hearings on capital expenditure because they will come in and they will say, "Well, we want to do this." We will say: "That is over your limit. Sorry, you can't do it." Generally, they say, "Okay, we won't do it," but they know the rules, most of the municipalities. That is not a problem for us, those hearings.
Let me tell you about the section.
Mr Frankford: Excuse me, could you slow down? Could you explain to me, a very new person in this game, what are they required to apply for?
Mr Colbourne: Mr Frankford, if I can help you out, briefly, under our own act, all municipalities, when they want to have an expenditure approved and borrow for it and the borrowing goes beyond the term of council they have to have our approval. Irrespective of whether it is an objection or not, we get an application for approval. What the chairman has said is correct. Very few of those applications are objected to in general so we have very few hearings resulting from that application. We have to deal with them all, but we deal with them administratively.
Mr Frankford: You are sort of like a bond approval agency in a sense?
Mr Colbourne: We set the limits for borrowing for each municipality in Ontario each year based upon their revenues. We have a formula which has been in existence for a number of years and we approve the borrowing up to that limit.
Mr Kruger: Some councils do it by bulk order, you see. We used to do it by bulk order at Metro rather than on individual projects. That is what we do. Most of the time, where there is an overrun today that we have to be a little concerned about it is generally that somebody in a smaller community is putting in a sewage system or something and the initial reviews they had from the engineers said, "Well, this is going to be the cost." They ask us for the cost because it is going over the term of council and we approve it. But when they get in they find that they did not have this and they did not have that and they have to go over. So we have permitted some of them to do that because there are environmental considerations. But that is not a problem for the board. It is not a problem of workload at the board level, nor really that much at the staff level. It is pretty automatic.
Mr Frankford: So you are saying that it is basically a formula and it is a rubber-stamping.
Mr Kruger: Yes, that is right.
Mr Frankford: But it would seem to me that capital expenditures could have an impact on the long-term economic tax base and so on of a municipality.
Mr Kruger: That is why the board was set up back in -- and we started -- that became very evident back in 1923. We have been doing it. That gave a degree of comfort to all of the bond rating agencies when they go down to Moody's and Poor's and they are able to say -- and I used to use this at Metro or whenever I went to New York. I would say, "Don't be concerned about us because the province has got this OMB bunch of people over there and they review everything to make sure that we don't go over our limit." It is a great degree of comfort, but I think most municipalities are now mature enough. They know what the standards are. They know what the formulas are and the Investment Dealers Association -- after all, there was a review that went on for a couple years where they decided that maybe it was time to change now. But it is a formula type of thing.
I do not know whether or not this government is going to proceed with that. But you are quite right. It does give investment dealers and the bond rating agencies a great degree of comfort to know that there is Big Brother looking over their shoulders.
Mr Grandmaître: Can you be of more help to Mr Frankford and talk about that formula?
Mr Kruger: Okay, do you want to talk about it?
Mr Colbourne: It has been in existence over a number of years and it is based upon the municipal own-purpose revenues, if you are familiar with the financial stuff from the municipalities, and it is a present value of a capitalized current interest rate which we get from OMERS. In other words, if the current OMERS rate is about 13%, we capitalize their income based upon that interest rate to set the debt limits. Each application within that upper limit comes in regularly, for sidewalks or whatever, and unless it is objected to, we do not have a hearing and it is handled administratively and goes right through, so the only impact upon the economy or anything else in delay would be where there might be a hearing or where they go over the limit and we have to recalculate and rethink about their upper limits, based upon the application. It is at 20% or 25% in certain circumstances.
Mr Grandmaître: That is what you wanted to hear. My question is a very simple one. Who makes the selection of the member or members to sit on a specific hearing? Let's pick the environment. It is an environmental problem. Who makes the selection of your membership?
Mr Kruger: That is the chair. I will consult, very much so, with the person who is handling the calendar and we have it down to a pretty well automatic thing if there is no problem. If there is a controversial thing like that which would come up or some other particular type of hearing, Mr Colbourne would consult with me and he would say, "Who should we put on?" and we would go over our calendar. We have a pretty good straightforward process on that, but the ultimate responsibility is mine.
You should know, one of our problems to try to keep our workload down, Mr Grandmaître, is that there is a section called section 15 of our act where the chairman may delegate one member to sit on a hearing. If you read our act it is obvious that our act was never designed to have one-member boards. It was always designed to have more than one member on, but in extraordinary circumstances have one member. Because of our backlog, 65% to 70% of all our hearings are one-member and I sign them off on the files daily.
Mr Grandmaître: One very short question. I would like to go back. I was minister at the time of the Dale Martin decision.
Mr Howden: The World Trade Centre?
Mr Grandmaître: Yes, the World Trade Centre. Will you be doing more of this in the future, awarding costs, or let's use the word, penalizing people for being frivolous?
Mr Kruger: We have an ability there. We are very judicious in our application of that ability. But if we see a trend developing, we will not hesitate if there is a clear abuse of process, and we are finding some of those and that is what I mentioned earlier to a question. One of the things that could change in our legislation is giving the board the ability to award costs so that the costs will come to the OMB to offset the costs of hearings where it is obviously frivolous and an abuse of process. The number of times that we would do that is rare and we would be very measured on it, because a lot of people -- although to the other side, Mr Grandmaître, as you would appreciate, it might appear frivolous and stupid and everything -- when you hear their point of view, to them it really was not, so we have to balance that. But until you get the hearing, no. But the Dale Martin type of thing, yes, that was clear.
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The Vice-Chair: Mr Waters?
Ms Haslam: We have asked all your questions, have we not, Dan?
Mr Waters: Yes. That is what happens when you sit and listen for a while. I have a few questions. I will try to keep them short. One of the things that I find I guess somewhat distressing here is that there was a comment this morning made that not only do you have to be fair, but you have to be seen to be fair. I would say that you would have to not only be fair, but seen to be fair not only when you are making your decisions, but also in your hiring practices. I have somewhat of a problem with your practices, the way you are implying that you hire people. You say that you have to have lawyers, or basically lawyers; after all, 60% of your people are lawyers.
Mr Kruger: That is a product of the past, yes.
Mr Waters: You say also that when you advertise you advertise in the Globe and Mail for positions or you get your other positions from contacts of members of the board.
Mr Kruger: Members of the board or outreach.
Mr Waters: This was stated here this morning.
Mr Kruger: Yes, and if you will remember, I also said that one of the recommendations was that we should advertise in the outreach newspapers as well.
Mr Waters: Okay, but then you have gone on and you have said that it is difficult for women, because you made an assumption -- at least I have taken that you have made an assumption -- that women of child-bearing age are at home with a family or all want to have a family.
Mr Kruger: No, I did not make that assumption. I got four or five names of people who are bilingual who happen to be women who would love to be on the board, but in their particular case they could not do it. We have women on the board who are not in that case. I have ones sitting right here who do not have children of that age. A lot of women do not have children at all. They are single parents. Well, they have children but they are single parents. You see how confused you can get.
Mr Waters: The same with handicapped people.
Mr Kruger: The problem with handicapped people, and I addressed that, was that there has to be an ability to be able to drive a car, to be able to travel, to be able to carry exhibits and things like that because we do not have staff who accompany these members. I have one handicapped person on the board. That person was a board member and then he got injured. In that particular case, I cannot send that member to certain parts; he has to be located pretty well around the area here. He is concerned, I should tell you, that he is not pulling his weight. So we have difficulties. It is the type of handicap; we would have to look at that.
Mr Waters: You have given me a bit more background on it. You commissioned the Coopers and Lybrand report. Are you going to try to institute any of the recommendations of that report?
Mr Kruger: Yes, absolutely.
Mr Waters: Because the recommendation of the report included that.
Mr Kruger: Absolutely. As a matter of fact, when they came around and I had a steering committee, as you will have seen by reading the report, yes, that was very strong. We do have to try to expand the membership. That is a commitment.
Mr Waters: Going on with the report, do you, as the chair of the OMB, decide how much of that report is going to be instituted or does it come through the ministry?
Mr Kruger: I make recommendations. To give you an idea of what we are doing, pretty well all of the report in some form is going to be instituted. Some of the things are beyond my capacity as the chairman. The question of salary, the question of appointments, that is OIC, those arc political decisions, wherever there are administrative decisions that are being made here.
We have set up committees, for example, to look into the question of adversarial, changing the role; we have a committee to look into intervenor funding, so we are acting upon that. We are bringing on the case management. All of that is being acted upon. We have to phase it in, because you will see the amount of money there. The consultant said we should double, pretty well, our budget. I have described it before. It has been a little bit of an administrative wilderness there and as an administrator I can tell you that. But we are phasing it down so that we can phase the thing over a period not just of one year, but over a period of two to three years. All the things we are going to inquire into.
As an example, the question that we were talking about, the inquisitorial approach: Perhaps the way around that is to be able to have some form of intervenor funding whereby the people out there whom you might want to bring in an inquisitorial approach for can bring forward their own evidence if they want to; and this would only be on larger hearings, so they could do it.
So we are looking into every aspect of this. The question of consistency in decision-making, yes, there is a committee of the board looking into that as well, but we have to get the staff resources to be able to do some of these things. A question was asked about research. When I came to the board there was not one lawyer on staff. There is a lawyer on staff now and we are going to have a few more.
Mr Waters: Okay, I understand what you were talking about there for a minute. You had said 60% of the people were lawyers. I know what you mean now. Going along with this, the backlog, how are you looking at clearing the backlog? Are you going to do as was done in 1983 when there was backlog to clear?
Mr Kruger: No, I am not asking. I am going to try to do something that is a little different instead of just asking for more members. First of all, we want to bring on board part-time members. These part-time members will be people who have been on the board and have now retired from the board for some reason. There is only so much they can work during the year because of pension arrangements. Those people would concentrate probably on consents and variances and things like that. That is one thing which we have not had as a standard.
I want to bring these people on immediately, the six people who will take care of the ones who are going to retire, so that I can have them trained, so that I can keep, by 1992, the same number of members. I want to bring in the staff that can start in the process of doing the case management, doing all of these things to improve our procedures. We have to change our procedures. So it is a combination of a whole group of things. If we can do them and we do them on schedule, we should be able to control the backlog.
Mr Waters: Basically what are you looking at? Developing specialist fields so that they deal with just one special thing --
Mr Kruger: No, no.
Mr Waters: -- or every member will be sitting on every type?
Mr Kruger: From the member level, that is what they are trained to, because you cannot adjust your calendar based upon the fact that this person only has this specialty. We train them in a variety of things. If there is a particularly difficult case, say, on an assessment or that, we will have some members who are very skilled in that. Then we would try to put that member on, but generally they would take a variety.
The same thing at the staff level: The case managers are going to have to handle all of the cases rather than concentrate on just one type of case, because that gives you an uneven workload. We are not masters in our own house when it comes to the type of volume we get. That is external to us. It depends on legislation, it depends on what is happening in the community, so we have to have the ability to shift people around and they have to be trained to the point that we can put them where the need is.
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Mr Waters: Just one more point, because most of my questions had already been asked. I have one. It concerns, as was started earlier on, the combination of OMB and the Environmental Assessment Board. Have you looked at or is there anything in the works about maybe creating a superboard? In other words, instead of having, as you are now, two boards going down two different roads at the same time, is there any other way of alleviating the problem?
Mr Kruger: You could argue two ways. You could argue that you really did not have to create an Environmental Assessment Board, that could have been done out of the OMB. I would understand why it had to be created. They were good political considerations, because it was a specialty. You must remember that there are different acts that we administer. Even if you had a superboard, you are subject to the acts that govern you on that. If you had one superboard, it might help a little bit in the workloading.
I can only repeat to you what a member of the Environmental Assessment Board who is now on our board told us. He says he has never worked as hard in all his life as he did when he came to the OMB because of the volume of that. But it is different acts. Whether it is the Environmental Assessment Act, the Environmental Protection Act, as to what it is, if it is a joint board, all of those things are governed by very set rules, so just having a superboard does not really solve anything for you.
What it might do, if you are going to argue on that, I would go a step further as an administrator. I would say, "Why don't you have all of your administrative tribunals, maybe four or five of the larger ones, housed in one building and have certain rules for them, share your legal staff, share your administrative staff, share some of that?" That is something that is out there that even Macaulay in his report suggested that one should look at. I do not think you can just look at it here. That goes beyond your question, but to create a board between ourselves and the Environmental Assessment Board is not necessarily the answer.
Mr Colbourne: We have received, in the current fiscal period anyway, five applications of a joint board nature. One carried over previously. I think the chairman has already indicated it is going to be on for three or four years. That involves one of our members. The five that have come in recently are not of the major type, although they can involve the Simcoe landfill, which went on for four months, from time to time. Currently we only have -- I say "only" -- five out of the Niagara Escarpment combination.
Mr Kruger: And when we get the question about a waste disposal site in this area or other areas, that will probably be a joint board, so that will take a fair amount of our time. You must remember the composition of our board. When the people come on the Environmental Assessment Board, quite a few of them arc part-time members. We do not have any part-time members.
Mr Waters: The reason I am asking some of these questions is, when I talk to my people in my part of Simcoe, I know they are frustrated over certain things. Also it is trying to do the best job for the municipalities and the individuals out there. Is there a faster, better way?
Mr Kruger: I think it is a matter of looking at those acts and determining what you have to do when you have a hearing under those acts. That is the way to go. The procedures are around that. I know the Environmental Assessment Board is looking at some of those procedures now, because some of those procedures by their nature presuppose that you are going to have a very long hearing. So that is the way to go. I think, first of all, you have to look to legislation before you start looking at the respective boards. You also have to look at the various acts. I understand the government is doing that right now.
Mr B. Murdoch: Just to wrap up --
Ms Haslam: Did we wake you?
Mr B. Murdoch: Yes. No, I thought we just could wrap up.
There is just one point I want to make before we do wrap up. I did hear the perception that the Ontario Municipal Board is sort of there to protect the townships and the municipalities and everything. I want to make it quite clear that some of the municipalities are not of that same feeling. They think it is there to protect everybody else and not themselves, and that is where I challenge the board. It will have to go out and do a lot better job of selling itself to everybody in Ontario, but it is not just a one-way street, let me tell you. I just wanted to put that in there.
Mr Kruger: We understand that, Mr Murdoch, very, very well.
The Chair: I think the chairman is probably aware as well that this is something that this committee has not done too extensively in the past. We are going to have client groups appearing before us as well. The Association of Municipalities of Ontario, for example, is one of those that will be providing its views in respect to the operations of the board. Mr Fletcher.
Mr Fletcher: Thank you, Mr Chair. I always seem to be following that Murdoch fellow.
Mr McLean: Do not follow him too far.
Mr Fletcher: No, I might fall over.
The first thing is I am glad there is an OMB. I am very glad there is. I do not know if it works the right way or if there are changes to be made, but I am glad it is there for people on both sides. You are right. It is a two-way street. There is a sort of an ombudsperson to take your case to, and I am very glad of that.
I am just wondering about your role with the Attorney General's office and that ministry. Do you feel that you are too restricted by the Attorney General? Would you like to see more arm's length? Would you like to be taken in a little more or would you like to be taken out of that ministry and put into another ministry?
Mr Kruger: I have said if I wanted to get money, I would be attached to the Ministry of Municipal Affairs.
Mr Fletcher: You would not be attached to anything else in government.
Mr Kruger: If I wanted to be in the right ministry for this board and its functions, I am right where I am in the Attorney General. No, the relationship with the Attorney General at the ministerial level is very, very arm's length. In fact you will find if somebody writes in complaining about a decision of the board, the Attorney General has a pretty standard letter. He would say, "That's up to the board, and you must write to them," and so forth. I know. We draft the letters, and that is the standard type of thing that goes forward.
If they get a call complaining about a member, that is referred to me, and I do get those calls. They do come in, and I will investigate them. Generally the complaint about members is that they made the wrong decision because, you see, when they write the decision, if you are on the losing end, you are going to look at every word and you are going to find why those members did not know what they were talking about. I have no concern about the relationship with the Attorney General.
Mr Fletcher: So you are happy to be with that ministry?
Mr Kruger: I am very happy to be with that because we are the closest administrative tribunal to the courts that you can get.
Mr McGuinty: Mr Chairman, I am going to try to ask now what I think they call snappers, those questions where you --
Mr Kruger: Snappers? I love them.
Mr McGuinty: I am going to ask brief questions and I am going to try to elicit brief responses, Mr Kruger. First of all, with respect to intervenor funding, we do not have it right now at the OMB.
Mr Kruger: That is right.
Mr McGuinty: Would it be a good thing to have it?
Mr Kruger: It would be a good thing to have, in my view, on certain cases. They would have to be very large cases; they would be not totally across the board. It would be the Etobicoke type of hearing.
Mr McGuinty: More complex and sophisticated.
Mr Kruger: Very complex, very sophisticated. Yes.
Mr McGuinty: Okay. Perhaps I can ask this. How would you recommend that we go about distinguishing or drawing lines between the different types of cases?
Mr Kruger: By the procedures that you bring forward. That would govern it.
Mr McGuinty: I gather there are still a fair number of laypeople appearing before the board.
Mr Kruger: Yes.
Mr McGuinty: Is it fair to say that a layperson can require more of the board's attention, in that it can take more time for the layperson to present a case than it would a lawyer?
Mr Kruger: Sometimes that is quite true. It depends on the layperson and how long he wants to talk.
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Mr McGuinty: Would it be of assistance to the layperson and of economic benefit perhaps to the taxpayers of Ontario to provide a layperson with legal counsel at an OMB hearing?
Mr Kruger: It depends on the type of hearing that you are talking about. It would have to be a complex hearing. We have considered whether or not there should be a staff lawyer on staff who could help out in those cases, but I would think you are talking about something that goes beyond the average case. You are talking about 20 cases maybe a year.
Mr McGuinty: I spoke earlier about and you answered questions regarding pre-conference hearings, I guess we call them. That is something I gather you are anticipating bringing into effect.
Mr Kruger: It is in effect now.
Mr McGuinty: How broad a scale?
Mr Kruger: It is starting to get broader and broader. There has always been an element, within the board's practice, of practice directions and things like that to try and do it. The only difference is we are tending to formalize it just a little bit. For example, next month there are 12 pre-hearing conferences.
Mr McGuinty: Why are we not holding them in every case?
Mr Kruger: It is not necessary on a consent. If, and this is where the staff would come in, you do a proper job on your file, your file is complete, you know what the decisions are, that is where your pre-trial type of concept would come in. It is not necessary to hold them, but there are certain ones that you would hold them on.
Of the ones that we are going to hold them on, we have this affordable housing thing that is coming up, which we held it on, which was in the Goodyear site. We were very precise about what was to be done and how they would be done on that. The pre-hearing conference or the procedure order that followed the one on Etobicoke runs to about nine pages of very precise things. We will be doing a pre-hearing on the Ottawa Senate as we will be doing a pre-hearing on a whole group of things. We have Bill 20, which is development charges, coming down the line.
Pre-hearing, it depends, there are a variety of things that have gone on in the board. It is just that we are tending to formalize them a little more.
Mr McGuinty: You are intending to formalize that. I can understand that. What kind of a commitment can you give, if any, with respect to bringing into effect a more formal procedure, for instance, for pre-hearing conferences and I guess, a commitment, generally, with respect to the backlog? When can we have that whittled down?
Mr Kruger: Give us the money, give us the resources, and we will do it. I have already stated those times in my submission to Management Board. I said: "Give us the resources. Don't hold us up on the number of members we can bring on and the speed with which they are to be brought on." By about the end of this year -- I have already stated this -- we hope to have contained the backlog to about nine months. By this time next year, at the beginning of the next fiscal period, we hope to have it down to six to nine months. We might even beat that, but we need the resources.
The Chair: Mr Kruger, when you received your appointment as chairman of the board, how were you informed of that? Was it through the Attorney General's office or the Premier's office? l am just curious on that.
Mr Kruger: No, I was informed of it by the Secretary of the Management Board of Cabinet. He said: "I shouldn't be saying this you, but you are the person who has been successful. You will be getting a call, I believe, from the Attorney General." Then I got a call from the Attorney General who then said: "You're it. Let's see some changes."
The Chair: Did he specify the sorts of changes at the time that he wanted to see occur?
Mr Kruger: No, not really. I had to go back, talk with the members, sit down, and then I had a little agenda the next time I saw him and said, "These are the things I think we should do." Some of the big items there were some of the things that we discussed here. I heard almost contemporaneously from him and from the Premier at that time.
The Chair: I gather they both had concerns about the way the board had been functioning up to that point in time. If the Attorney General suggests changes --
Mr Kruger: I would not know that. You would have to ask them that. I could not get into their minds, nor did I ask them.
The Chair: I am wondering with respect to the agenda if you, as a chairman appointed by a previous government, received direction explicitly.
Mr Kruger: No, I did not receive any direction explicitly, "These are the things that you must do." I would never have taken an appointment on that basis.
The Chair: But there was a suggestion that changes were required.
Just a couple of quick ones about your support of at pleasure appointments: I guess when we had this discussion prior to meeting you, we were concerned about the ability of any government to dismiss an individual who perhaps was not performing up to snuff. I guess your interpretation of that is something different than ours. We felt that it may be difficult. We were equating it with perhaps a judicial appointment. It could be extremely difficult to remove someone from the bench.
Mr Kruger: It is not in the same league as a judicial appointment. I see the members of the board to all intents and purposes as very similar to civil servants. They have the pension and so forth and every civil servant is at pleasure. You control this by the performance appraisal. I think it is the responsibility of the chair. There is a variety of sources by which you know how well the member is performing. You try as best you can in the performance appraisal to say, "These are the areas of your weakness, and we will help you to try and improve them." If there is not, then I would have to go forward to the minister and say -- I would say this of course to the member beforehand -- "This person is not acceptable."
What happens within the board, if the government agreed, would be the same thing as happens within the civil service. You may have to come to some agreement on some settlement of the member leaving. I can tell you right now that is not a problem on this board. I can tell you that without any qualification. There is not any member whom I would see who should be released. If there was, I would be talking to that member.
The Chair: One final question: You quoted earlier from our temporary standing order with respect to the additional responsibilities this committee has had placed upon it. You have obviously read the standing order.
Mr Kruger: Yes, I have.
The Chair: Do you have any views to express today as the chairman of the board?
Mr Kruger: It is a very difficult standing order. It is going to be very difficult for this board. Let me give you some examples.
The Chair: Go ahead.
Mr Kruger: When it comes to new members, I have less of a problem, going through your subcommittee and then doing your 35-day bit and so forth. I have less of a problem with that. The role of a chair in this becomes somewhat like a personnel director. That is what I would be, and I have been discussing this with the ministry. They are yet to tell me what role they want to play in the initial oral board that we would have. We would interview the various people and I would make recommendations to the minister and he would bring them forward. There is a process there. It is going to take time and time is my enemy, because if I am going to achieve the objectives I have set out here before you today, I have to get these members on as soon as I know I have the money. But that is less of a problem.
I have a problem on the part-time members, because my present level of understanding is that the part-time members would be considered to be new members, yet the qualification of these members is that they should have been ex-members of the board. I have already been told by a couple of my board members that if suddenly they have to go through a whole new process like this, I am going to find it very difficult to attract those. I would think they should be treated somewhat like the members who are coming up for reappointment. I understand they would not come forward. They would just be automatic with the minister. I would think that the part-time members, because of the particular situation we have and the fact that they must have those types of qualifications of having sat on the board -- I have to get these people up and running in order to attack the backlog. That is the purpose of having part-time members. So I am just a little concerned about that.
I am also concerned about the question of vice-chairs. This is one of those things that has not yet been resolved. Of the three members who will be leaving, three of them are vice-chairs. How am I going to appoint vice-chairs? The normal thing used to be that the chairman would make recommendations to the minister who in turn would make them to the government. Are these going to be advertised or are they not? There is clarification which I am now seeking from the government as to how that would be done.
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The one saving grace in this process is that I think it is good to have a process down. I think it does open it up, but I notice there is a six-month limit on it. I think that is probably the best insurance you have, but I do have problems with it. I have problems of time regarding this board. We are not like any other boards that I have sat on. It does not matter. You can have a complete layperson who can sit on the board and his qualifications do not matter that much, because you have all the staff resources, and particularly if instead of an adjudicative board that operates in an adversarial environment, it is a regulatory board. A regulatory board has a much better ability because you have all the staff. You are inquisitorial in your approach and so forth. We are different to that. Yes, I have some difficulties. I have been in touch with the minister's office and we are attempting now to work out a procedure by which this can be done.
The Chair: We appreciate your input on that and we appreciate your appearance here today. We can wind it up. I will alert you to the fact that there always exists the possibility that following our meetings with client groups, we may request you to appear once again before we finalize our report to the Legislature.
Mr Kruger: On behalf of the board and my colleagues, let me say we have welcomed our appearance here. We have been treated very well, very fairly. A couple of the comments went by me and I did not comment upon them. I have learned that skill through many years, but thank you for your attention. I am delighted that at least there are some members of the Legislature who have a little better understanding of what this board does. One of our greatest problems, and it was touched on by Mr Murdoch, is the ignorance generally out there of what the board actually does do. Partly that is one of our problems. I thank you for your courtesies, Mr Runciman. It is very nice to see you again, sir. I look forward to coming back any time.
The Chair: I wonder what hat you will be wearing that time.
Mr Kruger: Yes. Thank you.
The Chair: Before we break, two minutes with the committee: The question was raised before lunch about the press comments about the appointment of Mr Sears and whether this perhaps was in contravention of the standing order. Our clerk has looked into this and it would appear on the surface, and we will pursue this perhaps a little further, that this particular appointment does not fall within the mandate given the committee with respect to this particular appointment falling under the definition of an agency, board or commission. So it looks like that appointment is not one that would have to be given consideration by this committee.
Mr Grandmaître: I have a question, Mr Chairman. Can I ask you, not who the former agent general was, but was he appointed by an order in council?
The Chair: It is an OIC appointment. Have you got the standing order in front of you?
Mr Grandmaître: Yes.
Mr Silipo: Sorry, Mr Chair, what is an OIC?
The Chair: Order in council. The intent is to appoint a person to an agency, board or commission. We have secured the list of ABCs falling under the Ministry of Industry, Trade and Technology and these sorts of trade offices or whatever the term is do not fall under that definition, so therefore they do not fall within the mandate of this committee. As I said, the clerk is going to pursue this further. If there is a different understanding tomorrow we will bring it to the committee's attention.
Mr Grandmaître: What section of the standing orders are you reading?
The Chair: Number 1.
Mr Grandmaître: We are going to pursue this, Mr Chairman, because I am not sure that --
The Chair: The clerk is going to talk to Ms Phillips in the appointments secretariat and to a few other people who can perhaps provide advice and report to me and I will report to the committee tomorrow.
Mr Grandmaître: Just for the record, I have looked into it very briefly, and apparently that appointment would fall in that category of OICs and we can request that this appointment be reviewed. We will wait and see what your report says.
The Chair: This may be a tempest in a teapot as well, because Ms Phillips may well be bringing that forward to the subcommittee on Thursday. We do not know at this stage. As I said, the clerk is going to talk to her.
Mr McGuinty: It is news to me that there now exists apparently a category of appointments which will not come before this committee for review. I think it would be helpful if we had a list of all other possible appointments which will not fall under the mandate of this committee.
The Chair: Order-in-council appointments? Yes. We shall endeavour to obtain that.
Mr Grandmaître: Because, who knows, we will not have to meet again.
The Chair: We will adjourn until tomorrow morning.
The committee adjourned at 1607.