CANADIAN BAR ASSOCIATION -- ONTARIO
CONTENTS
Wednesday 27 November 1991
Agency review: Ontario Municipal Board
Canadian Bar Association -- Ontario
Ontario Municipal Board
Appointments review
Marie Rounding
STANDING COMMITTEE ON GOVERNMENT AGENCIES
Chair: Runciman, Robert W. (Leeds-Grenville PC)
Vice-Chair: McLean, Allan K. (Simcoe East PC)
Carter, Jenny (Peterborough NDP)
Elston, Murray J. (Bruce L)
Frankford, Robert (Scarborough East NDP)
Grandmaître, Bernard (Ottawa East L)
Hayes, Pat (Essex-Kent NDP)
McGuinty, Dalton (Ottawa South L)
Marchese, Rosario (Fort York NDP)
Stockwell, Chris (Etobicoke West PC)
Waters, Daniel (Muskoka-Georgian Bay NDP)
Wiseman, Jim (Durham West NDP)
Clerk pro tem: McMillan, Nicole
Staff: Pond, David, Research Officer, Legislative Research Service
The committee met at 1006 in room 228.
AGENCY REVIEW
Resuming consideration of the operations of certain agencies, boards and commissions.
ONTARIO MUNICIPAL BOARD
The Chair: Come to order, please. I see a quorum. Mr McLean has expressed his apologies. He is going to be late arriving today and I am going to recognize a quorum without him.
CANADIAN BAR ASSOCIATION -- ONTARIO
The Chair: Our first witnesses this morning are from the Canadian Bar Association -- Ontario, municipal law section. Mr Jim Harbell is chair of the section. Mr. Harbell, would you like to introduce your colleagues for the record?
Mr Harbell: With me are four other members of the executive of the municipal law section of the Canadian Bar Association: George Rust-D'Eye, Mary Bull, Karl Jaffary and Leo Longo. Actually, we have our past and current chairs and our vice-chair here, together with two other members of our executive.
The Chair: Welcome to the committee. You have some comments to make, and then we can get into questions.
Mr Harbell: This is our second presentation and appearance before this committee. It is our understanding that we are here now to respond to questions the committee may have arising from the submission we filed with you subsequent to our first presentation. We are very pleased to have been asked back. We are hoping our submission provokes some thought and perhaps a little controversy -- that is always a good thing -- and we will be happy to deal with any controversy we may have suggested or created.
We have at least one opening matter. The Retail Business Holidays Act has been amended since we were last before this committee and since our submission was filed to you at the end of September. We have some comments with respect to its potential ramifications for the board and the jurisdiction of the board, and regarding some of the problems dealt with in our submission before you. If that is an area of interest, we would be pleased to lead off with it and then respond to any other questions you may have.
The Chair: I think that would be helpful. Please proceed.
Mr Harbell: I will turn it over to George Rust-D'Eye, who has been leading our committee. We filed a submission with the Solicitor General last week, which he will be speaking to.
Mr Rust-D'Eye: Bill 115 has now been enacted into law. As Mr Harbell mentioned, the Canadian Bar Association -- Ontario filed a submission to the Solicitor General with respect to the merits of Bill 115. That having been enacted, it is now a moot point. The issue I would like to address briefly is the impact of the enactment of that law on the workload of the Ontario Municipal Board and some of the characteristics of the provision added to the Retail Business Holidays Act creating new and somewhat onerous burdens on the board itself.
Section 4.3 of the Retail Business Holidays Act now allows any person who objects to a bylaw made by a municipality exempting businesses from the Sunday and holiday closure requirements of the act to appeal to the Ontario Municipal Board. That appeal must be brought within 30 days after the bylaw has been enacted. Subsection 8 of that section now states, "The board shall use its best efforts to decide appeals under this section within the period of time prescribed under subsection (9)." Subsection (9) allows the Lieutenant Governor in Council to make regulations prescribing a period of time.
I think it fair to say that the government, during the debates on this bill, was talking about a period of 90 days as being the period within which the Ontario Municipal Board would have to make a final decision dealing with one of these appeals. It is our understanding that the Ontario Municipal Board has not been given any additional resources to deal with these particular appeals.
It is hard to anticipate exactly who may be the appellants in these circumstances. One might predict they might be competitors of businesses that had applied to be open, religious groups basically arguing that stores generally should not be open on Sundays and labour groups and workers in the actual stores which under the bylaw might be open.
Once the appeal is brought, the board would now be required to use its best efforts -- and I am not sure if anyone is quite sure what that means -- to bring down a decision within this period of time, whatever it may be. We are not aware of any similar provision dealing with any other tribunal, or of a court requiring a tribunal to use its best efforts to bring a particular kind of proceeding within any particular period of time.
It means the Legislature has basically declared that whether retail business establishments can be open on Sundays is of the highest priority in matters dealt with by the Ontario Municipal Board. It means that while matters involving development charges, major development review, official plan amendments, zoning bylaw amendments or market value assessment all proceed at the normal pace the board would otherwise operate at within its limited resources, these particular matters must immediately jump to the top of the list because they have a finality imposed upon them.
In addition, it appears that under the act as it now reads there will probably be a two-stage process in most of these appeals, both stages having to be dealt with, if the 90 days is inserted into the regulation, within that 90-day period, because there is a provision whereby the board may hear the parties with respect to the sufficiency of the appeal on a motion prior to a potential hearing.
It is difficult to foresee what criteria the board might be asked to address at a hearing, but I think it fair to say, looking at some of the litigation that has already resulted from Sunday closing bylaws, that it would be very wide-reaching indeed. It could go into the entire philosophy and principles upon which holiday closing laws are based, including polls as to public popularity of such legislation or whether stores in a particular area can compete with American stores. There are any number of issues that can arise.
It is fair to say that in most cases the appellants will bring the appeal. There will then be a cross-application by the municipality, possibly participated in by the area municipality, which will then involve a hearing before the board as to whether it should hold a hearing.
If the board can be convinced that the appeal is insufficient, as the statute now says, it could dismiss the appeal. However, since there would not be full evidence before the board in so far as the merits of the bylaw are concerned, let alone a transcript of any evidence given before the council that had passed the bylaw, I suspect that in most cases the board would have to decide to hold a hearing. Those hearings could take weeks, even longer, to be heard, having had the motion dealt with originally, and all within the arbitrary time period in which the board is required to use its best efforts to finalize appeals.
I am not going to address the merits of the Retail Business Holidays Act, but I think this provision, particularly the two impacts I have just alluded to, will cause very severe problems for the board and for parties dealing with the board in the future.
The Chair: Thank you. We do not have an awful lot of time. I am not going to restrict members from asking questions in that area, but as you know, we were going to focus on the Coopers and Lybrand report and the comments you have made in that respect. If members have some questions related to the Sunday shopping legislation, I will not discourage them.
Mr Grandmaître: I realize that with the new retail business holidays legislation, Bill 115, a lot of pressures are being added to the OMB. But if this bill goes through as is, do you not think it will also add to municipal budgets? We are putting a lot of pressure on municipalities. I know municipalities were somewhat consulted, but I am sure that the additional cost to the municipal governments was not addressed.
I had the opportunity to speak to a number of municipal councillors and mayors after the recent municipal election and the additional costs to appear before the OMB is a serious concern of theirs. AMO is quite concerned. It seems that the government, the consulting government that is in place, has not consulted sufficiently with AMO and the individual municipalities. What are your thoughts?
Mr Rust-D'Eye: In the brief the Canadian Bar Association submitted, it did comment on the fact that this particular amendment arose after the opportunity had been given to members of the public to comment on the provisions of the draft statute. It is a very substantial amendment that has been made.
I certainly agree there will be substantial costs imposed on municipalities, particularly since, even up to the municipal level, it may be a two-stage process. Area municipal governments may now apply for these bylaws, so someone applying for a bylaw -- and I think this would happen in the case of most two-tier municipalities -- may well have to apply to the local government and go through all of the process there, using all of the staff time and all of the research and everything else that would have to be done. The area municipal government could then go up to the region and do the whole thing all over again. The region or Metro could argue the issues. The upper-tier municipality then would have the burden of defending against this appeal, and any number of appeals could be brought by all sorts of parties, without necessarily any recourse financially to the area municipality.
But in any event, presumably staff and legal bills and everything else which are normally associated with full-scale OMB hearings would apply in fact to the municipalities and the real property tax base.
Mr Grandmaître: One last question. You did say you presented the Solicitor General with the brief. Were you not consulted by the Solicitor General's office before you presented your brief?
Mr Rust-D'Eye: No, sir. I am not aware that we were ever consulted prior to our initiating this particular brief to the government. We were not asked for that. It occurred to us as something that was pretty important.
Mr Grandmaître: So Bill 115 was a surprise to you.
Mr Rust-D'Eye: No, not Bill 115 itself, just this particular provision.
Mr Harbell: Perhaps we should add the caveat that the CBAO does have a government relations committee, which we are not members of, which is very active with respect to knowing what legislation is being proposed, knowing what areas the government is looking for consultation on. I would not like to say that they were not advised of it. I simply say to you that we, the municipal law section, when we learned of first reading of the bill, chose of our own initiative to put together a submission and to file it.
Mr Grandmaître: I find it somewhat strange, Mr Chair, that transfer payments to municipalities, school boards, you name it, are being cut back and here we are are adding additional costs to municipal governments without consultation.
1020
Mr Longo: If I may just add one thing, the concern of the CBAO respecting the business of this committee today is applicable to the OMB itself, which is being asked to hold the line or cut back. Yet we find legislation like this coming through that is requiring additional hearings and indeed suggesting that unusual treatment be given to these sorts of appeals, that best efforts be made to decide them within a particular period of time.
It is not just a cost to municipalities, but a cost to the OMB in dealing with these, plus the greater public cost of a board which is already running 13 or 14 months behind in hearings. To suggest those hearings have to wait now even longer perhaps to make time on the dockets to allow for these sorts of appeals, that is the type of cost that we, as a group, wish to bring to your attention. We believe that sort of matter should be addressed by this committee in its recommendations to the House, that the board is unfortunately overworked and under-resourced. We would certainly be pleased to engage in a dialogue as to suggestions on handling that.
Mr Jaffary: We do not want to appear alarmist, but it really seems to us that the whole process of municipal government may well break down because of this. The load on the OMB in the last few years has been phenomenal. It is the government's policy to finance development through development charges bylaws. They have all been enacted in the last week and they have all been appealed to the OMB. There is just a huge workload there.
There is this bill, and it is going to involve separate bylaws in many municipalities, an incredible number of appeals. At the same time you have government policies about trying to get approval of non-profit housing. Almost everyone requires a rezoning and almost everyone has appealed. You have a litany of things that have to go to the OMB and you are going to break down the whole system of municipal approvals if this board does not get more resources so that it can conduct those in an orderly way.
It is a very serious problem, going far beyond taxpayers' dollars -- trying to actually administer municipal government in the province -- and we feel very strongly about it.
Mr Wiseman: Getting back to the Coopers and Lybrand report, the Canadian Bar Association, I think that is the CBAO, said appointments to the OMB should be until retirement and not for a fixed term as suggested in the Coopers and Lybrand report. I would like you to comment on that, please.
Mr Jaffary: The practice in the past has been to tend to appoint people nearing the end of a useful and distinguished career who may have eight years or 10 years, or in some cases a good deal more, before retirement and they then retire.
We are concerned that if you begin plucking people in mid-career, people who are in their late 30s, early 40s, into the OMB for terms of three or five years, perhaps maximum seven renewable, those people will have to go back into the workforce again. First, we think it detracts from their independence, that they are going to have to go back into the workforce. Secondly, we think it means that trying to appoint from the private sector becomes extremely difficult. That is not an attractive position to a lawyer who is 40 years old, who knows he or she must give up his or her practice entirely and will have to rebuild it again from scratch seven years later. The only people you are likely to get taking those kinds of appointments are people who are presently public servants, perhaps in the municipal government, perhaps in the provincial government.
Since the whole thrust of the Coopers and Lybrand report was very much one of increasing the staff responsibility and downplaying the member's responsibility, it seemed to us that the board would be changing from an independent tribunal that heard evidence and made decisions to essentially something like a government department with people who would move in and out of positions of chairman or hearing officer but would be constrained by their future employment prospects and would be directed by staff to a point that we would lose the independence of hearing that we have been accustomed to in the past.
A preferable general approach seemed to us to involve the person who was going to accept an appointment in his mid or later 50s and hold it for five or seven years until retirement. Obviously there are exceptions to every rule and there have been young and vigorous members who have done good work for many years; I do not wish to single anyone out. But the prospect of where someone will go for employment after they have been an OMB member is the one that concerns us.
Mr Wiseman: You commented, if I remember correctly, previously and again just now about staff reports. You have some concerns about how the relationship to the tribunal and to the staff was going to work itself out. Could you go over that again and perhaps add some new thoughts?
Mr Jaffary: The concern is whether you are getting a decision by the board chairman made on the evidence or whether there is input to the hearing officer's decision that is not known to the parties and is not available for the parties to comment on or rebut if they want to do that. I said when I was here before that I have had some experience with tribunals where most of the work is in fact a staff function and there is a rather cursory public hearing process. But the OMB has not worked in that fashion at all.
The idea of having a planning issue reviewed by a staff planner for the OMB who will come to some conclusion about it and give advice to a board member really concerns us quite a lot. We wonder, is the decision being made by the staff planner or is it being made by the board member? That is not to say that there are not planning issues that the board needs staff to address, but we want to be very certain that any opinion on how a matter should be decided is an opinion that is expressed under oath at the board hearing and subject to cross-examination and is known to the parties. That is our concern.
Mr Wiseman: So it is the idea that some decisions may be made on a basis of data that have not been discussed in the open forum of the hearings.
Mr Jaffary: It would certainly concern us very much if that were the case. We think the decision should be made on the basis of the evidence presented at the hearing and known to all the parties.
Mr Wiseman: Since they do not keep court records the same way at the OMB as they do in court, how can you be certain that data or that information has not been presented and just been missed by somebody?
Mr Jaffary: You rely pretty much on the integrity of the board members and on the fact that there is a public file that has everything in it that is known to the board. I mean, the question of transcripts, yes, there is a court reporter in all courts, but there is probably only a transcript prepared in 5% of the cases. Virtually everything decided in a court is decided on the basis of the judge's notes.
The judge keeps them in exactly the same kind of red bound books that we give to the OMB members to keep their notes. If anyone wanted to find out what happened in a session of a particular court, he would have to pay for a transcript in exactly the same way anyone appearing at the OMB would have to have paid for the transcript. The OMB person has to arrange for the reporter in the first place.
But we take it as a matter of faith that the board chairman relies only on what he finds in the file and does not discuss the matter with others. While there have been occasional rumours over the last 30 years of strange cases where there might have been something that looked like bias on some individual member's part, those have been very rare. Generally the board members, and particularly in recent years, have been scrupulously careful to rely on nothing except what they hear in the hearing.
Mr Longo: A fundamental principle that we rely on and subscribe to is the concept that he who hears shall decide. When you went through the Coopers and Lybrand report, you found it was he who hears shall do a draft report which would then be sent to staff to be vetted for issues of consistency and other matters. As soon as you start crossing that line of the person who hears submitting draft reports for editing and scrutiny by staff, we believe you have crossed into an area where it becomes potentially a bureaucratic position or decision that is rendered and not one that is made based on the evidence. In fairness to all parties, it should be based on that. That certainly was another basis for our concern, that there seemed to be a potential erosion of that fundamental role that we have been operating in for centuries.
Mr Harbell: The question of fairness did cause us considerable concern. While each of us is a lawyer, each of us has a client whom we have to guide through the process and whom we have to discuss the results of the process with. As we envisaged it, we saw a decision come down that bore little resemblance to the actual evidence that went in, that the client sat through. How is it that we would be able to sit down and describe to clients that they had just gone through a fair process? They had just spent real dollars to participate in a fair process and yet that process permits extraneous material, extraneous people to be involved, and a decision potentially to come down different from what took place within the hearing room.
1030
That whole concept of fairness would equally be applicable to unrepresented ratepayers, who are a substantial constituency of the Ontario Municipal Board by the very nature of the work it does. They are a group that, while we obviously do not represent them, we have to think about them in any kind of procedural effort we put forward. If they see a decision, participate in a process where they do not know the reason for the results because the results have taken place outside the room they have been in, they are going to call into question the full process, call into question the fairness, potentially bring it into disrepute, and will more than likely increase the number of section 42 motions, which are the motions by which the board is requested to review the decisions it has made. Those motions can be brought by anybody, and they usually are brought because people perceive they have been badly dealt with by the original decision, either by way of process or by way of substantive nature. The issue is a larger issue than simply the legal concept. It is a question of perception that has to be kept in mind.
Mr Wiseman: You have indicated that more resources should be given to the Ontario Municipal Board to function properly. If the Coopers and Lybrand report is implemented, is it fair to say that those resources would go into building an infrastructure below the tribunal level and not to the tribunal level where the decisions are being made? Would it be fair to say that you would not agree with that process happening?
Mr Harbell: Yes. We very firmly believe that the OMB deserves more resources, that it has an important role to play in this province. The Legislature just last week reconfirmed that by placing more jurisdiction on that board. However, our very strong view is that the board operates through its members -- the number of them, the salary that each of them has, the secretaries they have behind them -- and that is the board that needs the strong, substantial financial support that we perceive it is not receiving for the time being.
However, we have a significant disagreement with the conclusions of the Coopers and Lybrand report, which suggests there should be a significant increase in staffing in the order of 100%. We do not foresee a need for that. We foresee that the suggested use of those staff persons is not appropriate and that more board members, better funded, can handle some of the issues that Coopers and Lybrand suggest should be handled by staff.
Mr Wiseman: They suggest that if the tribunal judge needs further information, he should have a staff to ask that information of. Would you say that if he needs further information he should be calling the witnesses back and asking for that information in the open hearings?
Mr Harbell: I think it is a mix of the two. If you look at a court model, a judge has certain resources behind him that he can call upon. He usually has a court clerk who is a law student who has completed his or her legal education and is there to be a research assistant to the judge. So there are certain resources the judge can call upon as well as going to the parties. We suggest that kind of concept is an appropriate concept to apply to the board.
As a first resource, by all means call back the witness who has left questions unanswered. The board has the current powers to subpoena other persons it believes will be of assistance in its decision-making, whether it has already heard from them or not. That is a resource they have now. They at the same time, though, should have some minimal amount of resources they can call upon in-house to assist them with whatever background research they may require so they do not have to do it in a public proceeding. The board has started doing that, for example, by selection of a counsel to the board, and we certainly see that as a good thing. We would draw a line: one counsel or two is probably a good thing, 10 might not be a good thing and would not be the right way to utilize limited resources.
Mr Longo: As a follow-up to that, the process has to be open. Any evidence-gathering or fact-gathering should be put and discussed in the public process. The board, under its act, now has the power to adjourn hearings if it wants more evidence. They have done that in the past, saying: "There is a significant missing piece of the puzzle here. We will adjourn this hearing and send people off to bring that evidence back."
I believe that under the board's own act, the board also has the power to retain its own experts and provide evidence at the hearing. But I think we would strongly resist the board's hiring experts to give it advice after a hearing is over, because then the public and all participants of the hearings are denied the ability to test the information being given to the board. Fairness dictates that if you are going to make a decision on such evidence, it should be publicly put on the table to allow everybody to understand that is your process. I think the process is there if the board wants to gather information too, but it should be done in a hearing setting.
The Chair: Mr Marchese, and then Mr Wiseman, if you have something further.
Mr Marchese: I have a question I hope some of you might have an opinion on, personal or political. There are some people who say that the OMB, both practically speaking and democratically speaking, should not continue to have the final word on planning decisions on councils and municipalities across the province. Some people also say that the OMB should have a role as an Ombudsman or review body to allow some municipal decisions to be reviewed in another arena, but that it should cease to be a decision-making body. Instead, its findings should be referred back to the municipality for a public meeting or council meeting where elected representatives will have the final say. This approach would ultimately be more accountable or democratic and could reduce the work of the OMB, thus relieving that body of the resource problems it appears to be having. Do any of you have an opinion on that?
Mr Jaffary: I have held both opinions and have expressed them both publicly, so I can take all sides of it. When I did some work for the Robarts commission some years ago, I remember ultimately concluding that perhaps the decisions of councils on planning matters should be final and that an OMB decision might not be required. Of course, I think most of us would agree that if that were the case, municipal council decision-making would become vastly more responsible than it is now. It is extremely easy to vote for the popular thing, knowing that if you are wrong the OMB will fix it anyway and you do not really have to be fair.
However, the more I have looked at municipal councils, the more I have decided that probably they do not think they have to be fair anyway. I am not sure if the way that land use rights, good planning and political views should be resolved is at the municipal council. I ultimately have concluded that the brake of saying that absolute unfairness is something we will not permit municipal councils to do is a good thing, because otherwise they will do it. Municipalities will zone your development site for parks; they have been doing it for years. Only the OMB stops them from sticking to it.
I could go on by the half hour telling you about totally ridiculous decisions that municipal councils have made that the OMB has upset. The decision the municipal council makes, it makes in a few minutes, it makes without a full hearing, it makes with a staff report, it makes with every member of the council having talked to his or her constituents, it makes with no obligation to be fair, it makes with no obligation to have the same people hear it as make the decision and it ultimately makes the decision in whatever way each member of council thinks will suit his political future the best.
I say that as a former municipal councillor who has attempted to resist those things. But if you have a council chamber filled with people screaming that we must have a law about such-and-so, voting against it is a very difficult thing to do, even if it is a dead wrong thing that you are being asked to do, so ultimately I have concluded you need some further tribunal. You probably should say very clearly what its rights are, and indeed the OMB is very conscious that if it upsets a local democratically made decision, it must show very clearly why it is doing that. But I have ultimately concluded, I think to my sorrow, that one needs such a body.
1040
Mr Longo: Another point, to pick up what Karl has just said, he has referred to situations where municipalities make ill-founded decisions. Half of the board's work is when municipalities refuse to make a decision and allow the individual land owners to take that inaction to a higher body for some resolution. It is nice to say the board should not have the final decision and it should go back to council, but half the times we are in front of the OMB it is because the council did not want to touch it in the first place and the land owner has the right to have someone make the decision. That is how it gets to the board. That is the other side of the coin that should not be lost in your consideration.
Mr Harbell: Perhaps to add to that, in other jurisdictions where there are no tribunals similar to the OMB, there still has to be a way of dealing with problems of natural justice and fairness, and that has then fallen to the courts to deal with. The difficulty then is the right of entry to the courts. For example, if I am representing ratepayers it is very difficult. If they happen to be on the wrong end of the natural justice question, that probably does not get rectified because they cannot afford to deal with it. It also takes longer to do it.
You are dealing in the courts with decision-makers who are not accustomed to dealing with the broader public policy decisions that the OMB has developed the expertise to handle, but rather are called upon to deal with issues between two parties and to make the decision on the basis of private decision-making as opposed to broader public decision-making. There will still be issues that need to be addressed if it is turned back to the municipal level to follow through. I think if that is the process contemplated, then full thought has to be given to how all of those issues would be addressed in the upside and downside of that.
The Chair: Mr Grandmaitre, did you have anything further?
Mr Grandmaître: No, I totally agree, especially with the former councillor.
Mr Longo: As a former mayor?
Mr Grandmaître: In most municipalities they absolutely are using the OMB as a relief valve. That is what it is being used for.
Mr Wiseman: I have read through some of the recommendations put forward by the Preservation of Agricultural Lands Society, and even by the CBAO.
Just for example: "The Attorney General in consultation with other agencies in the public should establish a monitoring system to determine whether the OMB is following government priority."
By PALS: "The province through the OMB should be able to intervene and to impose official plans on municipalities which do not currently follow the Food Land Guidelines and other provincial policies."
One from you: "The provincial government should reform the existing land use planning and appeals process to ensure that integrated ecosystem-based planning is carried out at the local, regional and provincial levels."
Mr Harbell: I do not think that last one is ours.
Mr Pond: It is from the Canadian Environmental Law Association.
Mr Wiseman: Okay. But given just that list of three, and I have a number of pages of these recommendations that you have heard, clearly there are conflicting views of what the OMB should be. One of the recommendations is that a purpose or some kind of guideline should be defined about what the OMB should be and what it should do.
In your view, where do we as government members and committee members draw the line? Which side do we come down on in terms of the power and the responsibilities in the OMB? If you could do that in 15 minutes, it would be really good. I need some kind of philosophical idea that I can hang my hat on that will allow me to make some kind of decision.
Mr Longo: On the issue of whether the board should be paying more attention to certain issues -- you talk about the ecosystem and things of that nature -- you should start with the premise, let's look at the Planning Act as it exists right now and find out if the tools are there now to allow that to happen. As you know, under sections 2 and 3 of the Planning Act, the province has the ability to issue provincial policy statements. Once they are issued, the OMB, in fact municipal councils, are obligated to have regard to those provincial policy statements. So the power is there already should the province wish to issue that.
As the member knows, the Food Land Guidelines were issued in the early 1970s. Since the new Planning Act came out in 1983, a foodland preservation provincial policy statement has been worked on but never issued by the government. Wetlands is presently the subject matter of a draft report. All we have, I think, are aggregates and housing, and I think floodplain too. If the province believes there are certain province-wide interests that should be addressed by city councils and by the OMB, you have had the power for the last eight years to do it. The fact that it has not been done suggests that perhaps it is very difficult to come up with an ordering or priority as to what is significant for the province. But many of those powers are already there and do not require amendment or additional powers to invoke them. It is just that the provincial government has to use those powers. In many respects, some of the issues you have raised can be implemented tomorrow by the government.
The second point, before I turn it over to my colleagues, is that any provincial policy statement usually has to be written in a generic or general sense, because it cannot address all the specifics of a vast province such as ours. Municipal councils and the OMB will always be asked to have regard to those provincial policy statements. But of course there will always be site-specific matters that must also be weighed in determining the application of a provincial policy to a particular set of facts. The tighter a provincial policy can be written, obviously the less leeway the OMB and councils would have in attempting not to apply it in a particular case.
Mr Wiseman: Can I just interject for a second? Morley Rosenberg, who is the OMB chairman is quoted as saying: "We are criticized for saying we are not following the guidelines. That is the magic word: they are guidelines." To what extent --
Mr Grandmaître: Mr Chairman, who is the OMB chairman? Mr Kruger?
The Chair: The fellow standing in the doorway.
Mr Wiseman: Mr Kruger, sorry. I guess Morley Rosenberg was the chair at one of the tribunals. He was referring to the Oak Ridges moraine, and he was saying that they are just guidelines, and that is the magic word: they are guidelines. How then do you make sure that people in the tribunals, when they are making these decisions, are going to say, "We are going to give weight to these guidelines?"
Mr Jaffary: I think they do that remarkably well. I think what the OMB is good at is making decisions on things that are before it if it is given criteria on which to base the decision. Of course if you say we are in favour of low-cost housing and we are in favour of preserving food land, and you get something that is low-cost housing on marginal food land, somebody has to make a decision. But the board is not going to bring you new wisdom from heaven. What they are going to be able to do quite well is interpret guidelines, particularly if the guidelines conflict with other guidelines.
I can think of very few board members who have said, "I am just going to ignore any guideline at all that is provincial policy." The board has always tried to find out what provincial policy is and, as said, part of its job is to implement provincial policy when one knows what it is. But the board is at its best when it is making a decision on the basis of evidence and on the basis of known criteria. Somebody says, "There will be a traffic problem if you build such and such a project," and they can then have traffic engineers give evidence and find out if there is going to be a traffic problem. If there are environmental guidelines, in my experience, the board is very good at looking at those guidelines.
If there were some comments made about the Oak Ridges moraine guidelines, they are in fact guidelines. They have taken a definition of the moraine that many people say includes everything that could possibly be moraine, plus a lot of other things, and they conflict with other guidelines, and you try and put those together to make a sensible decision. That does not mean everyone who finally hears the decision or reads it will agree with it, but I think is all you can ask human beings ever to do. Tightening your guidelines into firmer rules may be what you want to do.
1050
Mr Longo: That is a criticism not of the board but of the people drafting the guidelines. Let me play advocate for a minute. If I am representing someone and the other side says, "Here is what appears to be a guideline from a government ministry," I will say to the board, "What status does that guideline have?"
The Planning Act sets out a way to declare government policy, a provincial interest. If you are not going to call it that, then maybe you should not give much weight to these guidelines because the government itself has not deemed fit to elevate them, as the Planning Act says, to a provincial policy statement. One thing I am always careful of is to be certain that when someone says, "This is a government guideline," it could be the government guideline this week; next week it might be another government guideline. The board has to make its decisions on all the evidence but has to weigh guidelines versus provincial interest versus policy statements.
If the government of the day chooses to express an interest in one level and not the other, I think it is quite fair for the board to make the comment, "It is a guideline. It is not an interest statement; it is not a policy statement," because those are the tools you have put in the Planning Act to allow the government to speak to municipalities and agencies. If you do not use them to their fullest extent, I do not think it is fair to lay a criticism at the board's feet that it was just a guideline, and therefore the board gave it less weight than something else.
Mr Harbell: I would like to follow up on that. Where it has been a section 3 Planning Act policy statement where the Planning Act specifically requires the decision-maker -- and I believe the language is "shall have due regard for," which is a higher standard than simply to listen to and weigh as you think best -- where three or four of those policy statements are brought forward to the board, I think a general review of the board's decisions would find they had due regard for wetlands, housing and floodplains and will give much greater emphasis to those policy statements where the province has followed through on the process under the Planning Act than, as Leo has pointed out, to the plethora of other guidelines out there issued by either provincial ministries or agencies, not knowing whether they have been accepted by anybody in particular. I think the board is doing the right thing in saying: "Yes, this one we know has the provincial stamp on it. We are going to give it due regard. With respect to the rest of them, we do not know what kind of process they have gone through. We do not know who represents the decision-making behind a particular guideline so we will only give it the particular weight we think appropriate in this hearing."
As well -- and I am sure you are aware that it is there -- section 2 of the Planning Act permits the province to declare on official plan matter, that it is a matter of provincial interest and, in effect, to take the power away from the board, to turn the board into a recommendation agency and not into a final arbiter and to create cabinet as the final arbitrator with respect to those matters. That power always rests with the government where they have put in place the broad policies. They see on a particular matter they are concerned about the specific application of those policies. If it is a significant matter, then they have that ultimate power of completely changing the final decision-making ability of the board.
Mr Wiseman: Would you agree that, if the guidelines and policies of the government were carved in stone a little better than they are now in terms of amendments to the Planning Act and were clearer, perhaps the process could be streamlined and the OMB would not be as inundated with as many requests as it is?
For example, you will not build on class 1 and 2 farm land, period. That is what PALS Food would like us to say. If that was a law and the Food Land Guidelines were in place, would that reduce the amount of cases coming before the Ontario Municipal Board?
Mr Longo: I do not know if it would reduce the number of cases, because people would be saying they are not on class 1 farm land. It may reduce the unpredictability of the outcome. If the evidence demonstrates it is class 1 land and the law says you cannot build, then you will not build, but you will still have as many hearings where people will debate and call evidence on whether they fit within the criterion of whether the land qualifies for that statutory prohibition.
The Chair: I am going to have to jump in there. I apologize, Mr Jaffary. As you know, we only had a half-hour set aside for your testimony this morning and we have gone over that by at least 10 or 15 minutes. We appreciate your taking the time to be here, Mr Harbell and your colleagues. Your input has been most helpful and will continue to be helpful.
Mr Grandmaître: Before we close, I would like to put on the record that I am very disappointed with the members of the government. Not one question was addressed on Mr Harbell's preamble or opening remarks on the Retail Business Holidays Act.
The Chair: Thanks very much, Mr Harbell and colleagues.
ONTARIO MUNICIPAL BOARD
The Chair: We have Mr Kruger with us. Diana Santo, a vice-chair, and Douglas Colbourne, a vice-chair, are accompanying Mr Kruger this morning. Mr Kruger, do you have anything to say to open up?
Mr Kruger: Yes. I notice my friends are still here, so I might as well take the opportunity to tell them and you, Mr Chairman, some of the things they have brought up and to give a degree of comfort not only to them but to this committee.
Diana Santo is a vice-chair of the board, a very senior member. She happens to be sitting with me now on the Etobicoke lakefront hearing. That is a provincial interest hearing that has been going on since October 1. I think it is a classic case of what the board does to try and get people to resolve issues before they ever get to the board. If you want to find out more about that, I would be interested in the questions. Mr Colbourne is also a vice-chair of the board, a very senior member of the board.
First of all, in regard to the Coopers and Lybrand report, of course it is not going to be enacted. I have said that publicly. I have said it at conferences with my friends. Not only is there a lack of money but what Coopers and Lybrand did, I think, was to challenge the board, to say there are certain things it should do. It talked about membership of the board, about a whole group of things. One of the most important things it did for us was to tell us we have to get to a better case management system internally within the board and we have done that. We are in the process of doing with our existing resources.
The concept that he who hears the evidence will decide has always been with the board and will always be the case with the board despite the Consolidated-Bathurst case which went to the Supreme Court where members can talk one with the other. Our board members do not do that. They test the evidence that comes before them. They might talk among themselves as to whether they have ever had a case like that, but generally they talk among themselves. They might have some expertise. We are very careful, even I as chairman. There is no way I ever interfere in any decision. The only time I even get involved in a decision of other members of the board is when a section 42 comes before me. That section says the matter is up for a rehearing and then we have to do a thorough investigation to see whether a rehearing will be there.
1100
They talked about the number of counsel. When I came to the board there were no legal counsel; we have two and that is the maximum we will ever have. The staff do not interfere with the decisions of the members at all. They do not do the research. Everything is in public. It is tested that way and I agree with my friends totally in what they were saying. In fact, I agree with most of the things they have said despite the fact we are often in conflict with them from the point of view of their advocacy, certainly on some of the provincial housing policies and stuff like that which we have to adjudicate.
There is one thing they are totally wrong on because they did not know and I really did not know myself until recently. There are two things I would be very interested in relaying to this committee. One is on the Retail Holidays Business Act, the actual situation. The situation which to me is even more depressing for us right now is our actual situation before the board, our backlog and what is occurring. A lot of it has to deal with resources.
With respect to the Retail Holidays Business Act, we have been informed that, provided the money can be found elsewhere within government, they would allocate for the rest of this fiscal year some $223,000. That would permit us to bring on three part-time members, one staff member and three full-time members. Let me tell you how we intend to organize ourselves with regard to the Retail Holidays Business Act.
Only the experienced members of this board will hear those hearings and there is a very good reason for that because these hearings -- I agree with what Mr Rust-D'Eye has said to you -- are going to be very complicated. They are going to be wide-ranging. There is going to be some very difficult adjudication like cultural or ethnic attractions. What is that? I can see that people from one area to another -- particularly as any member of the public can appeal directly to the board. Another thing is they can appeal directly to the board. They come to the board. Generally it goes through a municipality. This puts more of a workload upon us.
There is a subsection 4.3(8) that talks about best efforts. We are going to have to use that from the resources we would get. Again, there is a caveat on the resources for this fiscal year. They have to be found elsewhere in government. You should know we are also being told that we have to contribute towards the economy and, quite apart from the Sunday shopping, we have to find $198,000 out of our existing budget. We were straight-lined this year on our existing budget but we still have to cut back $198,000. We have been told for next year we have to cut back an additional $144,000. So the $223,000 we will get is strictly for the Retail Business Holidays Act.
In the 1992-93 period, Treasury has earmarked the possibility of $734,300. There is no certainty we are going to get it -- it depends when it goes through the estimates -- but at least we are encouraged to know Treasury feels that this is legitimate. That will permit us to carry on these three full-time members and it will also permit us to carry on the part-time members.
These members will come before this committee. We are going back to those members of the board who have retired or resigned and are in a position to come back because they are fully trained. It takes about 18 months to fully train a member of the board and the moment you become a member of the board you cannot do anything else. That is in the act, and our act is very specific about conflict of interest and so forth. We are going to bring on about four or five, as many as we have money for, and these members will relieve our other members. They will do the consents, variances and smaller matters to relieve the other full-time members so they can do the work on the Retail Holidays Business Act. In October Treasury will take a look, if we do get this money, to determine whether it was needed.
Let me give you some estimates of what we believe. There are some 839 municipalities in Ontario, about 50% or 419 of which are rural and 50% or 420 could be urban or suburban. We are estimating some 15% of the rural and some 35% of the urban municipalities will appeal. If we can get seven members working on the Retail Business Holidays Act, our present estimate is it is going to take about a year to a year and a half. Therefore, best efforts are very important. You must remember that this will go through the normal process of appeal. A lot of these things will be adjourned. There are some good points and some bad points about that.
There are some positive things we have. Within the act section 42, which means if you have had a hearing you do not have to go back to the board, will not apply. Section 94 does not apply. That means it does not go to cabinet. We have some other relief within the act itself, but I have not yet seen the regulations and I am expecting they will be very difficult to adjudicate. In that I am agreeing with my friends. The only thing I disagree with is that we have the thought of some money.
Mr Chairman, I am in your hands. We have a lot of data here about our existing situation. If anybody wants to ask about it, I would be delighted to tell you, affordable housing in particular. How long do we have?
The Chair: We have limited time really. I know there are a lot of questions. I think we would like to get right into the questions.
Mr Grandmaître: When were you advised by the Solicitor General or the ministry about your additional $223,000?
Mr Kruger: You must remember we are an appeal tribunal and we do not see regulations. We do not get involved in those things before they are done. We were told the OMB would be involved about a day before there was the public announcement, so we were aware of that. Since that time, we have been talking back and forth with the government, with the Solicitor General, with the Attorney General, with Treasury and so forth about what the needs might be. That has been an ongoing process. Specifically we were told we were going to get the $223,000 about a week ago. That was before the figure.
There was a lot of analysis that had to go through. Our staff were over there. Treasury, and rightly so, wanted to know what we were going to use it for and how much we could spend, the normal things. My concern is less for that. I am going to bring on two members anyway. We have been husbanding our existing resources, so I can bring on two part-time members without the $223,000. That has to be found elsewhere. I am more concerned about the estimates for the 1992-93 period, because while they say there is sympathy for the position on that, you never do know until the estimates process. However, I am encouraged.
Mr Grandmaître: What you are telling me is that the additional $223,000 that was allocated to you has nothing to do with the government realizing that with the new Retail Business Holidays Act more and more people will be appealing to the OMB.
Mr Kruger: I do not know whether that is quite fair. I think there was a recognition.
Mr Grandmaître: I am not asking you if it is fair. I am asking you how you were told.
Mr Kruger: From my discussions there was certainly a recognition that this was going to place a workload upon the board. I can tell you quite sincerely that if for any reason the government felt it was not going to place that workload, it would not even be talking about additional resources. I think the fact that they are talking about additional resources is recognition that something has to be done at the OMB. We are running a 15- to 18-month backlog in our normal work. There are things coming forward to this board like affordable housing. There is about $500 million worth of work out there which will give about 7,000 people employment. This is about the only game in town now, so we have to concentrate on those things. The government was aware of it. I guess they were strapped for the resources, the same as everyone else.
Mr Grandmaître: When was the last time you met with the Attorney General about your workload and your backlog?
1110
Mr Kruger: I generally meet with the parliamentary assistant. That is the way it works within the ministry. The parliamentary assistant is aware of it. Like every arm of government, the final arbitrator in this is not just one ministry. It is the cabinet; it is the treasury board. We have been meeting very constantly with the people who in the end give us the money.
We are enough of bureaucrats to know where you go for it, and we know you have to go to Treasury. They are the ones we pound because whenever we go to the Attorney General we hear "That's probably all right with us, but if you don't get the money from somewhere else don't look to us because we haven't got any." There is nothing abnormal about that.
Mr Grandmaître: How many additional members would you need to comply with the Retail Business Holidays Act if the 90 days goes through?
Mr Kruger: If the 90 days was that rigid and did not have best efforts and we were obliged to do it?
Mr Grandmaître: Yes.
Mr Kruger: We have not even contemplated that, but I can tell you that you are talking much greater than the three or four we are talking about, because you could always have these things. You see, it is impossible in a lot of these cases. The hearing could begin, it would be adjourned and there would be motions you would have to hear, so it could go on three, four or five months.
Mr Grandmaître: What you are saying is that the 90 days is not realistic?
Mr Kruger: In some cases it would be. Overall, as a board complying with everything that comes before us, no. It is for that reason that best efforts is in there, and we are going to use that fact.
Mr Marchese: I have several questions. The first has to do with my interest in understanding how we can reduce the backlog at the OMB. There are two matters I think can be helpful and I want you to comment on: where the OMB has jurisdiction in reviewing municipal capital borrowing and also minor variances from official plans. I am presuming that the OMB has had to adjudicate or make decisions on those matters.
Mr Kruger: Yes.
Mr Marchese: These are two areas I think we could dispense with in terms of the power of the OMB to review. Given that minor variances, for example, can easily be dealt with by committees of adjustment in the cities, why would the OMB need to retain that power, and as well with the municipal capital borrowing?
Mr Kruger: I do not put this on my curriculum vitae. I try to hide it but I was a municipal councillor at one time. I can tell you that when I was a municipal councillor I had my anti-OMB speech. I am something like Mr Jaffary. I hated it. I hated the OMB. I have come to realize that testing evidence in an impartial place such as the OMB has its role.
As for capital borrowing, we have our standards. That is mostly all done at the staff level because there are some very precise standards on that. You have to meet certain targets and so forth. That is not contributing to the board workload. What contribute to the board workload are the five cases a year we get that we actually have to go out and have a hearing on for the reason that somebody really feels aggrieved.
We just had one in Hamilton. I thought it would be for two days. It was on an arena. The local councillor, just by way of conversation, called us a bunch of NEPs, that is, non-elected parasites, in that we would go into their area and have the temerity to question this arena. It just so happens there were these two people who were dead set that we did not need the arena. I thought it would be for two days. He kept writing. I tried to do a paper hearing but was unsuccessful. It went forward and turned into a two-week hearing. Everybody came out of the woodwork on it. It just so happens that the arena is going in, but they had their opportunity before the board. That is not the great part of the workload.
As for taking away capital expenditure review from us, I have taken this position internally within the government: "Take it all away. Don't leave anything with us" -- I think municipalities now know what standards should be -- "We don't want any of it. It won't do anything for our workload. But at least don't leave us with any hearings." The government I guess is looking at that and saying, "There might be the odd occasion where we've got to refer something to you anyway for a hearing," and there are examples of that. I did not even want to have them. That does not do anything for our workload, so as far as taking it away is concerned, I encourage it totally and completely.
From the variances point of view, yes, you could take those away, but you must remember that committees of adjustment are not always as sophisticated -- I see some of my friends smiling -- as they might be in the larger centres. If you get up into some of the rural communities, who gets on to the committee of adjustment? Campaign managers and people like that who were there with the local councils. In some of these areas whether or not you are going to get the variance depends on how you part your hair.
You could put that on to the committee of adjustment. It really would not bother us that much. However, there are some people who are truly aggrieved by a variance. We see it all the time. They go before the committee of adjustment and, as I think you said, they get about five minutes. They try to make their case. They feel they have not been listened to. They come to the board and at least we will listen to them. They go away with the feeling that "Although I've lost, at least I was listened to." In a lot of these cases it is neighbour against neighbour and they just cannot resolve a thing like a little variance taking some of their land or something like that.
What we are doing to try to improve our way of handling them is that we are now going through the files and seeing those that might be subject to alternative dispute resolution techniques. We are figuring there are about 15% to 20% where we might be able to get the people together and kind of bash heads together without having a full hearing and say: "This is silly. Why don't you go and resolve it?" It is not uncommon in a board hearing to have a member city and seeing that the people are not that far apart say: "I'm going to adjourn for 15 minutes. Why don't you go and talk to one another and come back?" Quite often we get settlements. We are doing techniques like that.
Variances is one thing I think could be looked at, but there is a downside to it. The downside is to the population generally. Some of these people feel very strongly about being aggrieved and they want their day in court, even if they lose.
Mrs Santo: If I could add to that, Mr Marchese, the minor variances normally affect a person's home -- whether a neighbour wants to put on an addition or an enlargement -- and in society, as you are well aware, that is most people's major investment. That is what they take pride in. That is their hope. They have very strong feelings about property and property rights. This comes out very strongly in the hearing. They want a full and fair hearing. They want someone to truly listen to what their concern is. On the other side, the fellow who wants to put in the addition also wants someone to listen to why he really needs that addition or why he cannot live within the constraints of the bylaw. There just does not seem to be the trust out there that a committee that has looked at 25 of them in one day has given the attention they feel they deserve.
1120
Mr Colbourne: There is also another aspect, if I can add to it. Housing intensification is rearing up in the minor variance area. In other words, there are more major variances for putting in additional units, say moving from three to five, and we are getting more and more of that rather than going through the bylaw route, which takes quite a bit longer time to get through municipal council. So properties are converting, changing, expanding and intensifying housing units and we are getting a lot of that in the minor variance area in the major metropolitan areas, saving the time of going through the bylaw aspects of it.
Mr Kruger: On that, this is almost typical of what is going on in the community out there. More and more, our hearings are getting longer and longer. That is because people are becoming concerned, they are better educated as to their rights and they definitely want to be heard. A very good example of that is affordable housing. Anything that is a zoning bylaw gets appealed now, every one of them. Particularly with the recent election with the members running for council, there is more and more of the affordable housing being appealed. Now, we fast-track them. You should know that to this board, fast-tracking means you might get them in five or six months.
Mr Marchese: Let me ask another question, quite related to all of this. I recognize that more and more often it is thrust upon the OMB to adjudicate, like with the Sunday shopping issue, which you will have to deal with. As a result of that, more and more resources are likely to be needed to be able to do that.
Mr Kruger: Right.
Mr Marchese: I also recognize from my long experience in politics that there is a dynamic for growth that organizations are engaged in, whether they like it or not, and that it is not a temptation, normally, to reduce one's scope but rather to enlarge it. I also recognize that people are not tempted to review themselves out of existence, for the most part. But in the review that you often do of yourselves, have you come up with anything you think could reduce the backlog or that you could not do any longer because you feel somebody else could do it? Anything?
Mr Kruger: Philosophically I would agree with you, Mr Marchese, and I have had a lot to do over 20 years with organizations, particularly in the public sector -- how they are reviewed and so forth. They tend to grow. That is not our problem.
Our problem is just trying to keep our heads above water. As we look at things we do more and more, in an effort to find what we could do away with, there would be some things that would improve if there were a clear statement of what is the policy of the government. But let me give you an example. Mrs Santo and I are on this Etobicoke hearing. We sent them back, both the province and the municipality, to see if they could agree. We sent them back several times. We thought we had a pretty good level of agreement among the parties. We have been taking evidence since October and we are going to go right through till Christmas because they still have not agreed on things we thought they had agreed on.
Of the things we do, official plan amendments -- let me give you a problem there. The London, Ontario, official plan is coming up for review. It was adopted in June 1989. It was sent to the minister in July 1989. It was referred to the board in April 1991. We have had some pre-hearing conferences on this. It is going to take 170 days. We looked at that and we said: "Oh, my God, why? Isn't there an easier way of doing this?" When we looked at it, not only is the official plan being referred to us, but we have no less than 21 referrals. One of those referrals happens to be for 5,800 dwelling units -- this is under the official plan -- supporting a population of 12,600 with more than 25% affordable housing. So we looked at it and we said, "It may well take that length of time." That is going to hold up two members.
I have joint board hearings; I lose four members. Every time there is a joint board, my members seem to disappear into an abyss somewhere because of the length of time. You might ask, could we get off joint boards? Maybe we could, but that is going to expose a lot of these hearings, particularly landfill where there are a lot of planning considerations.
For all the things we do, I would say that we are constantly reviewing, and I will let my friends here talk to that as well.
Consents? Now, there is something. We thought, can we not get rid of consents? For goodness' sake, is there not some way? But unfortunately, there are a lot of municipalities that are planning by consents. They are just carving up their municipalities. There is an official plan there. They are interpreting their official plan just the way they want. We have the Grey county problem, for example, that is coming on. This is a very big part of our business, and every one of these consents is contested.
The Chair: Mr Kruger, I am going to have to jump in there. We have two additional questioners. This has taken up over 13 minutes right now, Mr Marchese's questions and your responses. Mr McGuinty and then Ms Carter.
Mr McGuinty: Mr Kruger, with respect to the additional funding you are about to receive, $223,000, will that be subsumed entirely by the board in carrying out its additional responsibilities or will there be extra left over?
Mr Kruger: Oh, no, that money has to come from elsewhere, in the government. I cannot find $223,000 from within the board. I already have to find $198,000.
Mr McGuinty: Okay, maybe I am mistaken. I thought you were receiving an additional $223,000.
Mr Kruger: We are receiving it based upon the ability of people within government to find it. They are taking around the hat -- throw some money into the hat for the OMB.
Mr McGuinty: So it is not a sure thing, is that what you are telling me?
Mr Kruger: No, it is not a sure thing. I have confidence, though, that it will be found.
Mr McGuinty: If you were to receive it, would you need all that money to carry out your additional responsibilities?
Mr Kruger: Are you saying would we need all that -- the additional responsibilities in the retail --
Mr McGuinty: Yes, exactly.
Mr Kruger: Is it sufficient? No, it is not sufficient.
Mr McGuinty: All right. So there is an existing shortfall.
Mr Kruger: It is not sufficient for trying to do everything within the 90 days. It is not sufficient. It is probably enough to struggle through with, because I am going to be allocating more members than that $223,000 is going to buy me in the initial stages. I am hoping, Mr McGuinty, that with municipalities working the way they are, by the time we get some of these appeals I will probably be pretty close to the next fiscal year. That is my hope.
Mr McGuinty: I see. So I think what you are telling me is that not only is that not enough to deal with your additional responsibilities properly --
Mr Kruger: Within the 90 days, but these are our best efforts.
Mr McGuinty: Right. But as I understand it, you are stating that there is also a shortfall in terms of managing your existing responsibilities.
Mr Kruger: If I was concerned about something, Mr McGuinty, I am more concerned about our existing than I am about the Retail Business Holidays Act.
Mr McGuinty: I wonder if I might ask one further thing. What kind of impact would the extension of intervenor funding to cover hearings before the OMB have on the OMB? Could you answer that rather briefly?
Mr Kruger: First of all, when you say "intervenor funding," the first thing that comes to our mind -- when you go before the Environmental Assessment Board or something like that, you have an Ontario Hydro with big pockets. We do not have people out there with big pockets. All developers are not rich and nasty at all. So I do not know where the money would come from. Presuming you could get some magic -- and this is going to be the big argument about the intervenor funding before the OMB -- there is absolutely no doubt that it would delay hearings. That is one thing the Coopers and Lybrand report did point out.
We are the first to admit that in some of these hearings -- we have a hearing going on right now, the Etobicoke lakefront hearing. It would have been nice to be able to fund the members of the public so they could come. We have about 14 lawyers or something sitting there, all very competent people, but they are sitting there advocating for their clients, and the ratepayers have this one little person who has just finished his MA degree and he sits there every day. Now, intervenor funding would be good there, but I think there would be a delay. I think we would experience much the same type of thing as would be experienced at the EAB.
I have said this publicly, so I might as well say it here. I sometimes think that intervenor funding, as it is sometimes used -- and we have some good examples of that -- gives employment to consultants and to lawyers and to people like that.
1130
Mr Grandmaître: And it keeps you busy.
Mr Colbourne: I think there are instances where it could be useful, and I think Etobicoke is perhaps one of them, where the public interest is involved and the provincial interest is there also. I think there are those instances where it could be useful. But the majority of our hearings, remember -- minor variances, for instance, consents; they are all site-specific. They are all between neighbours and/or the local authorities and individuals. So there are some circumstances where it would be appropriate, but in a lot of our dealings it would not be appropriate. Assessment appeals, certainly not. There is a difference between the types of applications, and I agree with the pocket. It is a matter of where you get the intervenor funding from, because the applicant in the Intervenor Funding Act pays the toll.
Mr Kruger: We had estimated that where it would be helpful, in cases where we felt the ratepayers were aggrieved by not having the right type of planners and that type of thing, would be about 20 in a given year. That is the order of magnitude, and you must remember the number of appeals before us is 36,000. That is our workload.
Ms Carter: I have two related questions. I understand that board members are instructed to try to be friendly, not to intimidate witnesses and so on, but I think some people who come before the board still perceive that there is an adversarial atmosphere. There seems to be an element of paradox in this, that they might feel disadvantaged because they do not have the professional support, the lawyer and so on that they see on the other side, and yet at least one group has said that when it did have a lawyer, this made the situation worse because board members were rude to the lawyers. I just wondered how you felt about that.
Mr Kruger: All right, and I will let both of my colleagues talk to it as well. I can tell you that there are a lot of people who appear before the board who are not represented. The board operates in an adversarial environment, there is no question. We are like a court. One side says something, the other side cross-examines, and you test the evidence. It is that type of environment.
I can tell you, Ms Carter -- and this is another characteristic that is occurring out there -- that anyone who is really aggrieved, who feels he has not gotten a proper shake, calls through to the chairman of the board. They write me letters. I have been spending a lot of my time -- I will take calls from anybody. They get in touch with the board. I can tell you from the number of those cases -- they are there and sometimes it is real, there is no question about that, but I would say they are the exceptions rather than the rule.
Mrs Santo: I would like to add that I would agree with you, Ms Carter, that there is no place for a board member to be rude or unfriendly to an unrepresented member of the public or even to professional members. I am very much a strong advocate that the board is there to be helpful and to assist those who are coming before it to present their cases as best they can, whether they are represented or not.
A lot of it comes with experience, though. If you get young members who have not had the experience or who have not had the opportunity to be trained properly because of workload -- often people have been sent out on their own to conduct hearings without the proper training or the proper experience. Sometimes when you are not as confident doing what you are doing, conflicts would arise.
I believe the member should be experienced and trained and there should definitely be an attitude at the board that we are there to assist and be helpful, and there is no place for that. I would be aggrieved, too, if I heard from someone that they did not feel they were given a proper time before the board and felt welcome.
Mr Kruger: In our training we always send inexperienced members -- that is why it takes some 18 months -- out with somebody else. An excellent case of how we lean over backwards for the unrepresented ratepayer is in Etobicoke. We have let the ratepayers come forward, we gave them status, everything. We even assist them when it comes to their cross-examination as to how they might ask the questions. The board normally leans over backwards but I hear, and it is true, there are some cases -- they are the real exceptions, and I hear about them. I can tell you the general public is not remiss in letting me know.
Mr Colbourne: I was never instructed, by the way. I learned fast on the job that the way you get the hearings accomplished is to try to develop the co-operation of the people appearing in front of you. There are times, when you are challenged, and there are times when you are driving a lot and sitting a lot, that you have those off days, and those are occasions we all have.
The instance of Daniels in Etobicoke was a major hearing and there were a lot of individuals involved who at the first were represented by legal counsel before they got to the final hearing. Then at one of the pre-hearings before the final hearing they were without legal counsel because of funding, I believe the issue was. In those instances the two board members really encouraged, carried and probably extended that hearing considerably to give the ratepayers every opportunity on every issue they raised, and I think some of them were totally irrelevant. That is from my point of view. I did not adjudicate that one, but I think a lot of issues were covered which need not have been covered.
Mr Kruger: In fact, it went more than seven days longer.
Mr Colbourne: There are certainly instances and improprieties on occasion by the board members, but you have to remember that we deal with 2,800 hearings on average in a year. Sure, we are going to have a tough time in a white-out in Walkerton in the middle of winter. We may not be up for every day.
Ms Carter: The other part of my question concerns intervenor funding, which we mentioned just now. Obviously, you do not think it should go to frivolous people and I rather wondered what your definition of "frivolous" would be. You mentioned some people with rather petty concerns that took up a lot of time, but I am particularly interested, for example, in groups of people with environmental concerns which do not affect them personally any more than they would affect the rest of us -- this kind of public-concern approach -- and whether you think that was a frivolous intervention or that it should be funded.
Mr Kruger: The board has always dealt with environmental concerns. More and more we are dealing with them. We are quite competent to deal with them. The Etobicoke lakefront strip is an excellent example of environmental concerns. In fact, a great part of the hearing is that. When you say groups coming forward that should have intervenor funding -- yes, but where is the money going to come from? That is always the question I imagine the government is trying to deal with. Can you impose that on the municipality? You cannot impose it on the groups themselves. Even if the groups were totally frivolous and they were given something, and right at the end we were asked to award costs against them, they are probably judgement-proof anyway. So there are a lot of difficulties. Did you want to add anything to that?
Mrs Santo: In terms of the intervenor funding, I would not like to relate it to the term "frivolous." There would be quite a number of cases that come before the board where you have two individual parties, each with almost equal status in that they are both property owners or residents of an area. It would be very difficult to set criteria as to how you would determine intervenor funding and who would pay for it. The way the Environmental Assessment Board is handling the costs it often ends up being costs at the end of the day. The Ontario Municipal Board has been trying to establish -- it goes to your first question of welcoming people by not making them frightened that at the end of the day they are going to have a hefty cost awarded against them. In terms of the funding, I would support it in certain large cases where there is a larger interest rather than individual interests. Criteria would have to be established very carefully, because of the number of cases we handle a year, to make sure there are enough funds to handle that.
Mr Colbourne: On this question of frivolity or frivolous appeals/objections, if we make a determination, we should be making that determination before the hearing comes on. Under the Planning Act we at least have the ability to set aside or not to call a hearing in circumstances where we determine the matter to be frivolous. We have not acted of our own volition in many instances in those cases. We usually respond to an application by the municipality which feels that the objections to a bylaw, for instance, are frivolous. We would respond to that by way of motion, but that is a determination. If we made any determination on "frivolous", we would make it up front and avoid the cost of the hearing.
1140
Mr Kruger: Just to support that, there is a section of our act where we can in fact call it frivolous, but the great difficulty there is, how do you know the thing is frivolous until you hear the evidence? If we lean any way, we lean towards the individuals.
The Chair: Thank you very much. We appreciate your appearance here this morning. Mr Kruger made some reference to statistics. Hopefully, we are going to deliberate with respect to the committee's recommendations dealing with the board prior to the House rising in three weeks' time, so if you have any new statistics with respect to case load, backlog and those sorts of things, and if you could provide them to our researcher, it would be most helpful.
Mr Kruger: We can provide that. With rapid machine-gun fire, I can give them to you now if you want them.
The Chair: No, we are running behind schedule, but if you can supply them to our researcher as soon as possible, that would be most helpful.
Mr Kruger: That is fine. I have no problem with that.
APPOINTMENTS REVIEW
Resuming consideration of intended appointments.
MARIE ROUNDING
The Chair: The next item on the agenda is the determination of whether the committee concurs with the intended appointment of Marie Rounding as chair of the Ontario Energy Board. As you recall, the vote on Ms Rounding was delayed for one week. The clerk has circulated a letter received from the organization that had expressed some concern about Ms Rounding's appointment, and that was part of our deliberations. That group has now taken a different position based on the testimony before the committee. Everyone has received that.
Mr Grandmaître: Is that what it means?
The Chair: That is the way I interpreted it. You can interpret it in a different manner if you wish.
Mr Grandmaître: I think they are giving up.
The Chair: Mr Waters moves concurrence in Ms Rounding's appointment.
Mr McGuinty: I want to take a few minutes to deal with this. I think it is an extremely important appointment because of the issues we have to address here and also because of the tendency on the part of some people to try to trivialize this as a matter where a woman is not entitled to pursue a separate career path distinct from her husband's, being tied down in some way by her relationship with her husband. I think this goes beyond that and it is important to keep that in mind.
First of all, we should bear in mind that the appointment here is to the chair of the Ontario Energy Board. The function that board carries out is vital to the province. It has tremendous economic repercussions. It makes non-binding recommendations with respect to Ontario Hydro's rates and it makes binding recommendations with respect to the three natural gas utilities that service Ontarians. Every one of us is affected in one way or another by the kinds of decisions the board makes.
The issues here from a legalistic perspective are whether there is an apprehension of bias and whether there is potential sharing of confidential information. I think it is simpler for us to think of this in terms of the old saying that justice must not only be done, it must also be seen to be done.
In fairness to Ms Rounding, she recognized this as a problem. That is why she came to our first meeting armed with a memorandum prepared by her husband and his law firm. There were in fact two memoranda there. Way back in 1984 when this issue was raised by this same group, the chairman at the time recognized this was a problem and asked that Ms Rounding not hear that particular matter. It was also recognized as a problem at the Environmental Assessment Board hearings just a few weeks ago when pretty well the same circumstance arose. At that time the lawyers acting for the Ministry of the Environment filed a 31-page legal factum outlining their concerns and trying to address the issue. The point I am trying to make is that undeniably there is a problem, but that problem, again just to emphasize the point, has nothing whatsoever to do with this woman's competence.
I think the best way to ask the question is, will Marie Rounding's appointment to the board cause a perception problem for the public? Will the public believe that Marie Rounding would be just as impartial in deciding matters involving her husband as would a chair unrelated to her husband? Maybe the simplest way to put it is, if you had to appear before a judge in a matter that was contested, that was important to you and if you had the choice, would you choose as your judge someone related to the other party or someone not related? I think most of us, quite obviously, would choose to have a judge who was not related to the other party. That is what I am going to be asking this committee to do, to choose someone other than Marie Rounding, someone who is just as competent but who will not bring with her this problem of perception.
Mr Chair, you may recall I asked that we delay the consideration of Ms Rounding in order to hear from the Environmental Assessment Board as it decided on this issue. It made a decision, in fact, on Monday of this week. The board decided, in that particular circumstance, to allow the lady sitting on the panel to continue. I think it is important, when you get a decision, to look at the reasons. I am going to quote from the decision the panel gave. It said:
"Questions of possible conflict of interest or apprehension of bias are not uncommon. When they arise at the commencement of a hearing, they are usually resolved by the judge or a tribunal member deciding whether to withdraw or to continue. That option is not open in this case."
That option is available to us, because nothing has started here. The decision goes on to say:
"At the date the panel was advised of the appointment of McCarthy Tetrault" -- that means the date they were advised of this potential problem -- "there had been 53 days of evidence comprising over 9,700 pages of transcript. There had been 275 exhibits filed."
1150
In this particular case, nothing has been filed. No evidence has been heard because this lady has not yet been appointed. It goes on to say:
"The hearing of evidence is expected to continue for at least another year and there are many complex issues to be decided. An even number of panellists would make a deadlock on important issues a real possibility. It would be neither reasonable nor practical to recommence the hearing with a new panel or to continue with only two members." In other words, the panel is saying, "My God, look at the mess we're going to be in if we allow Ms Grace Patterson to step down," because it has already heard all of that evidence.
They went on to ask the question in this way: "The question then to be decided is whether in all the circumstances McCarthy Tetrault ought to continue as a representative of" a particular party "at this hearing." They had a very special circumstance. They had an ongoing matter with almost 10,000 pages of transcripts and 300 exhibits filed. We are in a good position here: We are not faced with those kinds of obstacles.
What about this letter we just received from the Industrial Gas Users Association? My colleague Mr Grandmaître raised a good point: What are they trying to say in this? I will tell you what my interpretation is. If I were advising IGUA, I would tell it: "Folks, let's look at the record here. Not a single government member has ever voted against the Premier's choice, so you're going to lose, guys. Be careful. You're going to lose and you're going to have to appear before this chair, who is going to win. So how do you want to play this?"
That is what I would logically infer from this letter. They do not say in this, in any kind of explicit way, "We're satisfied with the steps she's taken." They just said, "We've decided not to pursue this matter any further." That is my interpretation of this letter from IGUA.
The good news is that there are other very competent people out there quite suitable to carry out this function. I think it is a sad commentary that we do not have knowledge of who those people are. I know of two of them and I am quite confident in saying that the government members do not know who those people are. That is one of the sad things about this committee. Our mandate, as the Premier set it out, is to get the best possible person for the job and we are in a position where we are simply incapable of carrying that out.
I am going to refer to the last line of the statement made by the Premier in the House on Monday, December 10, 1990. It reads, "I believe we can ensure fairer selection of the best possible candidates." I ask the government members to ask themselves whether they are certain this is the best person for the job. I think the answer has to be no, as it generally has to be in all of these committee hearings and our reviews of appointments, because we do not know who the heck else we are comparing this person with. We just have not had that information before us. We never know, and that is critical. That is a critical problem with the committee and has been there since the outset.
Government members may notice that I generally do not vote in favour of appointees and I generally do not vote against them. That is because I do not know if we have the best person for the job. Now the government members always vote -- unless I am mistaken, and maybe they can correct me later on when they have their turn to speak -- every one of them, in favour of every single appointment put forward by the government.
I prefer to abstain, because I simply do not have the information. There have been some exceptions, but as a general rule I abstain. I vote against them if there is a glaring problem, and I think there is in this one, especially in light of the fact that we have equally competent alternatives available.
When the government members vote in favour, they are saying, "We are absolutely certain this is the best possible person for the job." They are giving their stamp of approval and their guarantee. I can understand why. There is party discipline involved. Anyone with any political ambitions must toe the party line. Ron Hansen is a case in point.
I issue the warning that at some point political appointees can cause you problems. We have experienced that in the past. At least I want to put myself in a position where I will not have endorsed this person as the best possible candidate, but you, on the other hand, are always making that endorsement, notwithstanding a complete absence of information before you.
You should understand that your constituents will not be satisfied and they will not be sympathetic when you say, "I had no choice but to make the appointment." John Turner tried that once. It did not get him very far. I know what the Premier will say: "Listen, the final responsibility lies with the committee. It is not with me. We put it through the committee. They vet it, so if there is a problem, look to the members of the committee."
The point is that every week government members vote in favour. Every time there is a vote, they vote in favour of the appointee. There is apparently never a doubt in their minds. They are always certain they have the best possible person for the job, even though they do not know who else was in the running. That is fine, but sooner or later, that is going to catch up with you.
I want to make it clear at this time too for purposes of the record that although we have not had recorded votes here, to my knowledge -- again, I stand to be corrected by government members if I am mistaken in this regard -- not a single member has ever voted against the Premier's choice. They have thereby endorsed that candidate as the best possible person for the job. I cannot, for the reasons I have given, support Ms Rounding's appointment and I want to make it clear for purposes of the record that I specifically chose not to support it. I am going to ask for a recorded vote.
The Chair: Mr McGuinty, we have had a couple of recorded votes during the life of this committee in respect to appointment reviews, but you are right, it is rare.
Mr Wiseman: I would like to make a few comments. Mr McGuinty, prior to this process being implemented, there was never any chance of anybody ever talking to or asking any question of any appointment made by your government when it was in power or by the Tories previous to that. So this process is new and is far more open than anything that has existed in the past. I think that is an important point to remember when you criticize this process, in so much as it has already afforded a number of opportunities to question people that would have been done behind closed doors and sprung on the public in a very uncontrollable way in the past. We have had cases clearly indicated where the previous government appointed people who lived in Florida to different boards and commissions and so on.
I do not think your criticism of this process, which is far more open than it has ever been in the past, is valid. What we should remember is that when we have these appointments before us, we are not being asked to do a comparative analysis, something that certainly you would never have allowed in the previous government. What we are being asked is the fundamental question of whether the appointment before us can capably fulfil the requirements of the job he or she is being asked to do.
I agree with you that sometimes when people come before you, you think they can do the job and can do it well and it turns out that, in the long run, they cannot. If you have ever fired anybody, then I think you will have to look into your own soul and say, "Nobody's perfect." This committee is not perfect. It may well be that some people we appoint here, who have done an excellent job here on the surface, have turned out not to do a good job. Time will tell on that. I do not think that is a valid reason for condemning the process as it exists now, on a speculation of what might or could be.
I will say for you that you have done an excellent job, as lawyers normally do, in terms of presenting the case you want to present. However, within the framework of the debate it is always important to put forward your best points while admitting those points that may not support you. We know, for example, by the document that we have received from Ms Rounding, that she and her husband and the legal firm have entered into blind cones, as they are called, and that he will not appear before the commission representing anybody.
The possibility that the firm may at some point represent somebody before the commission and that she might be on that tribunal is very remote, given that she would be only one and it is done on a rotation basis. There is a remote possibility that she could, but I would love to know what the odds makers would put on that in terms of the odds that she would be the one who would rotate into that specific place at that specific moment to be one of three people ruling on the case, and in the framework of those odds, that she would be called upon to be the person to cast the deciding vote, even given -- I asked her that question -- that it was done mostly on a consensus basis anyway and does not quite work out that way.
I would like to refer to the decision made by the Environmental Assessment Board on November 25. "`The spousal relationship in the circumstances does not create a reasonable apprehension of bias.' and;
"`[the] procedures [described by McCarthy Tetreault] will be put in place and will be adhered to, and that [the firm] can continue to represent AECL at the hearing.'
"In making its findings, the chair of the panel, Mr Justice Saunders, noted that:
"`[Its] decision [on the approvals being requested] will be made by three panel members. In such circumstances it would be extremely difficult for a panel member, either consciously or unconsciously, to make a decision based on improper considerations'; and
"members of the panel were professionals and it is reasonable to expect that members would honour their duties and responsibilities."
1200
To conclude, I think it would be somewhat insulting in the extreme to say that Ms Rounding and the legal firm of Osler, Hoskin and Harcourt would not represent themselves in a professional way.
Finally, to go back to the Industrial Gas Users Association's letter, you did not quote the section stating the Industrial Gas Users Association board of directors "has reviewed Ms Rounding's statement of November 20 to the committee and Mr Atkey's memorandum to his firm's managing partner of November 15 and has decided not to pursue this matter any further," clearly indicating there is something in the statement that has given them cause to suggest that the concerns they originally had are no longer concerns, or at the very least they are prepared to live with the word of both the firm and Ms Rounding in terms of accepting that every avenue will be taken to prevent any kinds of conflicts or any kinds of perceptions of bias entering into the process.
Therefore, given that you have already admitted that Ms Rounding has the qualifications and the historical responsibility of being in these positions before and is quite capable of doing the job, I would move that this nomination be accepted.
The Chair: Is there any further discussion? I know Mr Grandmaître wanted to be on the record on this, but he had to leave the room for a moment. If you will be generous we will give him one minute to get back in here, and if you do not want to show generosity I will call the vote.
Mr Waters: I would like to say something for the record. I keep hearing that this system is flawed and it is no good and the old system where everything was secretive was so much better. I have to remind you that this is the first time ever that the bookstore has had a best seller. The government bookstore is sold out and has to run reprints already of the agencies, boards and commissions book. There are literally thousands of applications to sit on agencies, boards and commissions. People like the system. I do not understand why my friend across the way keeps harping that the system is wrong when the public out there seems to like the system. I am getting a little bit tired of it all.
The Chair: We have a motion from Mr Waters for the committee to concur in the appointment of Marie Rounding as chair of the Ontario Energy Board and we have a request from Mr McGuinty for a recorded vote.
The committee divided on Mr Waters's motion, which was agreed to on the following vote:
Ayes -- 4
Carter, Frankford, Waters, Wiseman.
Nays -- 2
Grandmaître, McGuinty.
Mr Wiseman: I would like to make an additional comment on this. Mr McGuinty, in his comments, said he would not vote because he did not have the feeling he had enough information on any of these to vote. I think it is appropriate to note he decided to vote on this issue.
The Chair: That concludes the committee business. We have a subcommittee meeting, I remind the members of the subcommittee. The regular meeting is adjourned.
The committee adjourned at 1206.