Hansard excerpt (1) – Canadian Environmental Law Association presentation at Oct. 17, 2017 OMB Reform hearing

This post features an excerpt from the Hansard transcript of the Oct. 17, 2017 hearing at Queen’s Park regarding Bill 139.

My notes of the above-noted hearing are featured at a previous post entitled:

Oakville mayor, Mississauga deputy city solicitor, and former Toronto chief planner speak out at Oct. 17, 2017 OMB Review hearing

In the text below, I begin with my own notes, after which I conclude with the Hansard transcript, of the presentation from the Canadian Environmental Law Association.

Among other things, I have an interest in determining whether or not my quick notes, at the hearing, provide an apt overview of what transpired.

Please note: I have posted the text in adherence to the Copyright provisions regarding Hansard texts.

A previous post features the following overview of the Canadian Environmental Law Association presentation

The first speaker, at 3:00 pm, was Theresa McClenaghan, Executive Director and Counsel of the Canadian Environmental Law Association.

McClenaghan suggests withdrawal of the legislation. She speaks of a concern that specified “unwritten rules of practice” would prevail. She notes there is no longer testimony under oath or cross-examination.

She notes that appeals are not analogous to a judicial review. Tribunal, she adds, should be based on the best available information.

Notes no new provisions in place regarding financial barriers currently faced by residents. Resources for residents to fully participate are not there.

Refers to an alternative submission by Environmental Law Association.

McClenaghan supports the Schedule 4 items, and is pleased to see clarification, but “development” and “management” need to be defined.

In summary, recommends continuation of “de novo” hearings. Suggests Items 1, 3, and 5 be withdrawn and that here be a return to public consultation, in place of proceeding with the legislation.

Please note: The Q & As at this post are paraphrases of what people said; please refer to Hansard (see below) for the word-by-word, direct quotations

With regard to the Q & A, each of the three political Parties had 3 minutes and 20 seconds to devote to a Q & A with the speaker.

Please refer to Hansard for the full record for each Q & A.

Q:  The government’s position is to make sure the Municipalities make the decisions. What’s wrong with that?

A: Question is: What if people have a concern about the decision? If a less robust system replaces the current one, then disputes go to courts. OMB was set up to avoid such a scenario.

Q: In some cases, Conservation Authorities are not up to their mandate of protecting watersheds. In such a case, should the government appoint a Supervisor?

A: If a Statutory Body is not following the Statute, on which basis it was set up, then that situation can be addressed.

Q: Isn’t that which is most effective also the most expensive?

A: We’re talking about proposals with irreversible consequences. Natural resources, once certain decisions are made, will never come back in our lifetime.

Q: How successful has your organization been, at the OMB?

A: Clients have the right to participate. We’ve had success at the OMB. Good decision was made on asphalt plant. Decisions can go either way; there needs to be rigorous testing of evidence.

Q: If the current proposed legislation were to remain, what change would you like to see?

A: Intervenor funding would help. Otherwise, people can’t go to bat with well-resourced developers. It would be good to ensure that people don’t get scared away.

[End]

Below is the Hansard transcript of the same presentation

The committee met at 1500 in committee room 1.

The Clerk of the Committee (Ms. Jocelyn McCauley): Good afternoon, honourable members. In the absence of a Chair and Vice-Chair, it is my duty to call upon you to elect an Acting Chair. Are there any nominations?

Mr. Ernie Hardeman: Madam Clerk, I’d like to nomination Cindy Forster as Chair.

The Clerk of the Committee (Ms. Jocelyn McCauley): Does the member accept the nomination?

Ms. Cindy Forster: I do.

The Clerk of the Committee (Ms. Jocelyn McCauley): Are there any further nominations? There being no further nominations, I declare the nominations closed and Ms. Forster elected Acting Chair of the committee.

Building Better Communities and Conserving Watersheds Act, 2017 Loi de 2017 visant à bâtir de meilleures collectivités et à protéger les bassins hydrographiques

Consideration of the following bill:

Bill 139, An Act to enact the Local Planning Appeal Tribunal Act, 2017 and the Local Planning Appeal Support Centre Act, 2017 and to amend the Planning Act, the Conservation Authorities Act and various other Acts / Projet de loi 139, Loi édictant la Loi de 2017 sur le Tribunal d’appel de l’aménagement local et la Loi de 2017 sur le Centre d’assistance pour les appels en matière d’aménagement local et modifiant la Loi sur l’aménagement du territoire, la Loi sur les offices de protection de la nature et diverses autres lois.

The Acting Chair (Ms. Cindy Forster): Good afternoon to all committee members. We’re meeting this afternoon for public hearings on Bill 139, An Act to enact the Local Planning Appeal Tribunal Act, 2017 and the Local Planning Appeal Support Centre Act, 2017 and to amend the Planning Act, the Conservation Authorities Act and various other Acts.

Mr. Ernie Hardeman: If I could indulge the Chair just for a moment before we hear the delegations: Yesterday, at the start of the hearings, I made a presentation about the process of getting here and I made some inferences to how it was done, and I’d like to apologize to the Clerk if, in any way, it would have inferred that somehow she wasn’t doing an adequate or an outstanding performance. I was just frustrated with some of the events that happened, and I just want to sincerely apologize to her and say that we look forward to a long time to work together on behalf of the people of Ontario. Thank you very much, and thank you for allowing me time to apologize.

The Acting Chair (Ms. Cindy Forster): Thank you, Mr. Hardeman.

Mr. Percy Hatfield: Madam Chair, I wonder if we can turn up the volume on the microphones because of the noise from the air conditioner. It’s hard to hear in here today.

The Acting Chair (Ms. Cindy Forster): Mr. McMeekin.

Mr. Ted McMeekin: Chair, I didn’t hear a word that my esteemed colleague said because of the noise here. I wonder if he might repeat what he said speaking into the microphone.

Mr. Ernie Hardeman: Madam Chair, I would be happy to repeat it. I said that yesterday, as we started the meeting, we had some discussions about the process and about how we dealt with the subcommittee report and I questioned the appropriateness of not having scheduled all the meetings, and I want to apologize because the Clerk did exactly as a Clerk should do. She had done the job perfectly, and it was my misunderstanding or my urge to find fault that caused me to say that, so I want to apologize to her for my having done that.

Mr. Ted McMeekin: Thank you. That’s very honourable.

The Acting Chair (Ms. Cindy Forster): Please note, members, that the written submissions have been distributed to each of you. Each witness will have up to 10 minutes for their presentation, followed by 10 minutes of questioning from the committee, divided equally amongst the three parties. Are there any questions from the members before we begin?

Canadian Environmental Law Association

The Acting Chair (Ms. Cindy Forster): I will now call upon the Canadian Environmental Law Association to come forward. If you can please state your names for the record, you will have 10 minutes for your presentation. The remaining time will be allotted to the members of the three parties.

Ms. Theresa McClenaghan: My name is Theresa McClenaghan, and with me is Jessica Karban, who is a student at law at the Canadian Environment Law Association. We thank the committee for the opportunity to attend today.

CELA was founded in 1970. We’re provincially mandated as a specialty legal aid clinic, focused on environmental law. Our services include representing qualified families, environmental groups and First Nations on many types of matters, and we do find ourselves appearing before the Ontario Municipal Board frequently in our practice. We also work on law reform and public legal education.

We have two main submissions to make to you today. The first is that, in our view, most of Bill 139 relating to planning matters should not be passed in its present form. Rather, we recommend that the government should withdraw these schedules to the bill and conduct further public consultation on how Ontario’s land use planning system should be reformed.

On the other hand, we do support the proposed schedule 4 relating to the Conservation Authorities Act, with some minor recommendations that we’ll mention.

Let me say we do agree that land use decision-making does deserve ongoing improvement in the province of Ontario, but we don’t think that Bill 139 in its current form remedies the issues; in fact, it may compound or exacerbate several current problems within the land use planning system and may include new pressures for judicial review and pressure on our court system.

We also wish to note that CELA has never supported the abolition of the Ontario Municipal Board because we’ve argued that it provides an important forum for citizen participation in reviews of land use planning and protection in terms of compliance with law, with good planning and with the public interest.

Looking at the bill itself and starting with the planning matters schedules, we have no concern about renaming the tribunal. We’re focused on the substantive and procedural issues that it raises compared to current processes. In our view, the four schedules will reduce or eliminate important procedural rights and substantive protections that Ontarians currently enjoy under existing land use law and policy.

The major concerns we have are that:

—It would constrain and reduce the board’s jurisdiction and powers, and reduce the types and number of matters that may be appealed to the new Local Planning Appeal Tribunal.

—It would limit the grounds of appeal that could be advanced before that tribunal.

—It would restrict who can participate in those hearings and constrain how they will be conducted; for example, no testimony under oath, no cross-examination by parties and so on.

—It would eliminate de novo hearings before the tribunal and narrow the decision-making authority.

—The as-yet-unwritten rules of practice of the new tribunal would prevail over the province’s Statutory Powers Procedure Act where there is a conflict over those procedural safeguards.

We think that all of these matters would make it much more difficult for CELA’s client community to play a meaningful role in land use decision-making processes in the province or to ensure that decision-makers are held accountable through appropriate appellate procedures.

For the purposes of fairness, transparency and credibility, we would suggest that Planning Act appeals continue to be adjudicated in traditional oral hearings with procedural safeguards such as testimony under oath and being subject to cross-examination by parties. These offer the highest and most effective form of public participation, in our experience, and should not be sacrificed for reasons of political expediency or efficiency. We’re alarmed by subsection 42(3) in particular, which states that even if an oral hearing is held under section 38, “no party or person may adduce evidence or call or examine witnesses.”

We strongly object to the attempt in the bill to transform the current de novo process into a much less robust type of appellate review. We also object to the manner in which Bill 139 is proposing to tightly circumscribe the nature of the board’s current jurisdiction.

It strikes us that fundamentally there is a misunderstanding on the part of the drafters of the bill, who see municipal land use decisions as analogous to expert tribunal decision-making. We submit that planning appeals should be decided on their merits, and there should be no presumption by the tribunal that the impugned decisions are always properly reached, unassailable on the facts, or in accordance with applicable law and policy. We don’t think appeals to that tribunal are analogous to judicial review, where there is deference to a specialized administrative decision-maker and the principal issue is whether the decision was made in a way that’s defensible on a ground of reasonableness.

Since the Planning Act usually involves one or more matters of provincial interest and provincial planning policies, we submit that the tribunal should be empowered to make the best decision available on the hearing record, rather than determine whether the decision was merely “reasonable” or “defensible” on the basis of the documentation placed before the municipality. We also submit it should be decided on the best available information and evidence available at the time of the tribunal’s decision.

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We also do not support sending the decision back to the municipality. Rather, once the tribunal is seized of the matter, they should ultimately decide the matter on the basis of the information in front of them.

We also are concerned that Bill 139 contains no new provisions aiming at reducing or removing the financial barriers currently faced by residents, which was one of the questions posed by government in its discussion paper. We see that there is a proposal for a Local Planning Appeal Support Centre, which has many details to be provided, but we are assuming it won’t be the kind of entity that will provide the type of resourcing needed by citizens to fully participate in land use planning decisions, such as by planners, hydrogeologists and other experts. If that is the intention, that should be made more clear. Otherwise, in our submission, the better model is the former Intervenor Funding Project Act, albeit with an expansion to land use planning decisions.

We have an alternative submission. If the tribunal is not going to hold any hearings de novo under the Planning Act, then we submit that the bill should be amended to send all environmental planning appeals, such as greenfield projects involving natural heritage and healthy communities, to the Environmental Review Tribunal for de novo hearings instead. In our view, the public interest is best served with a full oral hearing on development proposals that may adversely affect public resources or public health and safety. We note that there are other stakeholders who have made that suggestion.

We do support the Conservation Authorities Act provisions provided in schedule 4 and would recommend that that schedule proceed to passage. We’re pleased to see proposed provisions that clarify the purpose of that act, although we would encourage further clarification of the terms “development” and “management” in that purpose statement to ensure that they are aimed at overall watershed health. We are also supportive of the provisions in that schedule that would improve membership and governance of CAs in Ontario, although we encourage that qualifications of appointees include specified criteria representative of various aspects of the public interest in watershed health.

In conclusion, we submit that it’s in the public interest to have an independent, specialized, quasi-judicial tribunal empowered to hear and decide disputes arising under the Planning Act. In our view, these should not be confined to the record that was before the municipality in the first instance. There should be a continuation of de novo oral hearings on most matters that are currently appealable to the act.

Accordingly, we suggest withdrawing schedules 1, 2, 3 and 5 and returning to consult the public on better mechanisms to improve public planning in Ontario and passing schedule 4 with some additional clarification on the terms.

The Acting Chair (Ms. Cindy Forster): Thank you so much for your presentation. Each party will have just over three minutes to ask a question and get your answer.

We’ll start with the official opposition.

Mr. Ernie Hardeman: What was the time?

The Acting Chair (Ms. Cindy Forster): Just over three minutes—about three minutes and 20 seconds.

Mr. Miller.

Mr. Norm Miller: I’ll be quick, then, to give time for my colleague.

On the conservation authorities part of the act, you’re generally in favour of that part, from what I see.

Ms. Theresa McClenaghan: We are.

Mr. Norm Miller: Do you have any concerns with the changes to warrantless entry onto private property that make it easier to go onto private property without a warrant?

Ms. Theresa McClenaghan: We don’t oppose the provisions because there’s a robust body of law about when it’s reasonable to exercise those types of provisions. Those would be subject to regular judicial review to make sure that those authorities are not abused.

Mr. Norm Miller: Okay. I’ll pass it on to my colleague.

Mr. Ernie Hardeman: Thank you very much for your presentation. I want to go quickly to the crux of the matter here, the tribunal, and your suggestion that it needs to do more—a larger hearing with more ability to take evidence and so forth.

The government’s position, the ministers yesterday explained to us, is that this was to make sure that the decision was a decision made by municipalities, not by other boards and commissions. What’s your concern about having municipalities make those decisions, that technically, only on certain issues, are they appealable? The rest are—the decision of the municipality is final. Do you have concerns with that?

Ms. Theresa McClenaghan: Municipalities can, should and do make those decisions. The question is: What happens if people have a serious concern about the decision that was made and is there any avenue to call for its review? If there’s not a robust tribunal system, such as we have currently with the Ontario Municipal Board, then we will end up inevitably falling to judicial review-type approaches in the courts. That’s what the Ontario Municipal Board was introduced to avoid in the first place. It does a good job of that, and we don’t think these disputes belong in the courts. It’s a very, very time-consuming costly mechanism of proceeding, with a great deal of uncertainty. So we think the tribunal, as a specialized decision-maker, should exercise that review.

Mr. Ernie Hardeman: The other thing I just quickly wanted to ask: You suggested that if we’re not changing the tribunal, the environmental concerns should go to the Environmental Review Tribunal. How would you decide which applications went there, because the environmental part is part of the whole application in almost every case?

Ms. Theresa McClenaghan: Well, that’s generally our view, and for that reason, over the years, we have strongly encouraged good environmental credentials on the part of the OMB board members too. But if the appeals specifically pertain to natural heritage, environmental, health and safety issues—because there are many, many OMB appeals that routinely proceed that actually don’t deal with those issues—those ones that do deal with those high-value matters of environmental resources and health and safety should go to the ERT, which is a specialized tribunal that can hear those matters, as it does already.

Mr. Ernie Hardeman: Thank you.

The Acting Chair (Ms. Cindy Forster): We’ll move to Mr. Hatfield.

Mr. Percy Hatfield: Thank you for coming in. Tell me why you think a de novo hearing is better than a decision made by a municipal council, a 10-year or a five-year review of an official plan that is sanctioned by the provincial government, that follows all provincial planning policies and statements—tell me why you think a de novo hearing is better than that process.

Ms. Theresa McClenaghan: In your scenario, if it follows all provincial statements and policies, in that case there might not be very much of a ground for review, but often the argument is—

Mr. Percy Hatfield: You must be aware of the Waterloo region complication, which I believe led to this abolition of the OMB.

Ms. Theresa McClenaghan: Yes. So it’s exactly the argument that sometimes decisions are made that are not consistent with the provincial policy statement or with other legal requirements or good planning requirements. When that happens, there needs to be an appellate decision-maker, and who should that be is the question.

It’s not that we don’t think municipalities have a strong voice and need to make the decision in the first place, but it doesn’t always happen that way.

Our clients, as I mentioned, are all over the province—

Mr. Percy Hatfield: Let me interrupt and get to another question, thank you.

On the conservation authorities, many people believe that the Niagara Peninsula Conservation Authority is a rogue conservation authority that’s not living up to the mandate of protecting watersheds, for example. Do you believe, if such is the case and it was proven, that a supervisor should be appointed to step in and take over, much as the government appoints supervisors to take over school boards that are in trouble or hospitals that are in trouble?

Ms. Theresa McClenaghan: I’m not familiar at all with the statements you’re referring to, but like any statutory body, if it’s not following the law that sets it up, then there is a potential for either judicial review, and in order for them to follow the statute that sets it up or the potential for the supervising minister to exercise other responsibilities that he or she would have.

Mr. Percy Hatfield: I believe somewhere in there you said, “the highest and most effective”—isn’t that also the most expensive process that we have now?

Ms. Theresa McClenaghan: We agree that the process needs to be made less expensive, absolutely, and there are ways to do that. There are lots and lots of ways to make the hearings more efficient.

We also think citizens’ groups should be provided with funding to help equalize the resources, but we’re talking about, many times, proposals that are going to be irrevocable and irreversible in terms of the impact on the land use in the community. Sometimes the natural heritage resources that are impacted will never come back in our lifetime, so those kinds of things deserve very strict scrutiny with rules of evidence.

The Acting Chair (Ms. Cindy Forster): We’ll move on: Mr. Rinaldi.

Mr. Lou Rinaldi: Thank you for being here today and for your presentation. Can you outline for the committee, under the present system, how successful your organization has been in dealing with the OMB under the present structure?

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Ms. Theresa McClenaghan: First of all, our clients do have the right to participate if they choose to do so, whereas under the proposal, that would very much be in question. That’s number one.

Number two, in terms of the outcome, we often have success at the board—not every time, but often—and we would be the first to say that those decisions are being made in terms of the evidence in front of the board.

For example, there was a recent case involving an asphalt plant. Our clients are extremely happy that we were able to help get a good decision made, where it would have been adverse to the health of the community if that plant had continued in the spot where it was proposed.

We absolutely agree that decisions can go both ways—that’s part of the point—but it needs to be based on rigorous testing of the evidence and the rule of law.

Mr. Lou Rinaldi: So if the current system was going to live, is there anything in particular that you’d want to see changed?

Ms. Theresa McClenaghan: Yes. We do call for something like an intervener funding project, because the inequity in resources is a really major problem. We are only representing small citizens groups and financially eligible groups, so they can’t go to bat, so to speak, with well-resourced developers. That’s a big issue, and we think that could help a lot, with appropriate criteria and controls on that system.

We also think there are many things that can be done in terms of reducing the length of hearings, better allowing for participant participation and controlling the risk of adverse costs, which right now are scaring well-intentioned groups away from the playing field. We think that the recently introduced SLAPP legislation is going a long way to helping groups voice their properly merited concerns, as well. That was a really important piece of the puzzle in this sphere.

Mr. Lou Rinaldi: Under the conservation piece of the legislation that we’re talking about, do you feel comfortable that the increased provisions to protect vulnerable areas are adequate, or do we need to strengthen that even more?

Ms. Theresa McClenaghan: Well, the bill, as proposed, is leaving quite a bit to regulation-making power, which is not in itself unusual, so we would very much want, along with all the other groups, to be part of the process of making sure that those regulations are very, very protective of watershed basins. We made a couple of comments in our submission about the terminology, making sure that they’re interpreted consistently with protection of watersheds. But yes, we are supportive of the direction of that bill, and it’s consistent with recent initiatives that are strengthening water protection in the province.

Mr. Lou Rinaldi: Thank you, Chair.

The Acting Chair (Ms. Cindy Forster): Thanks for your presentation.

Ms. Theresa McClenaghan: You’re welcome.

[End]