Planning Law 101 – A Primer on what to Expect at the Ontario Municipal Board
**We work with many private landowners and builders who have never attended an Ontario Municipal Board appeal. This page is meant to provide basic information to address those questions that we receive the most. Here is our disclaimer: Nothing on this page (or in this entire website) can or should be taken as legal advice. If you want legal advice that addresses your specific case, you must speak directly with Amber.
What should I expect in a hearing at the Ontario Municipal Board
Many people expect a hearing at the Ontario Municipal Board to be similar to the Committee of Adjustment hearing. It isn’t. An OMB hearing is a more formal and detailed process. Here are some key differences and what to expect:
- The hearing starts on time – typically at 10:00 a.m. sharp.
- Each case at the OMB has its own devoted hearing room.
- The hearing will be presided over by one or more Members (akin to a Judge). Typically, only one Member will hear the case, but sometimes a Panel of two or even three Members may be assigned. The Members hear the case and make a decision.
- The parties address Members formally – “Mr. Chairman” or “Madam Chair”. Anyone speaking to the Members must stand.
- The atmosphere in the hearing room is quite formal. When Members enter or leave the room, everyone in the room should stand until the Members give permission to sit. A lawyer in the room may call out “Order!” when they notice a Member entering or exiting, and that is a signal for everyone to stand.
- Cell phones must be turned off or on silent, and any communication between persons in the room should be quiet and unobtrusive. The Board typically does not tolerate any heckling or disruptive behavior from people in the audience.
- The hearing is like a trial. Parties call witnesses to give evidence, and the witnesses may be cross-examined by other opposing parties. At the conclusion of the hearing, lawyers will make oral argument about their respective positions.
Do I know who the Member(s) will be before the hearing?
No. The Board does not release that information in advance. The presiding Member(s) and hearing room will be indicated on a screen just off the elevators on the day of the hearing.
Do I know who will appear as a party at the hearing?
That depends. In more complex cases (such as a rezoning), the Board may hold a prehearing conference several months before the hearing, and the parties and participants will usually be identified at the prehearing.
However, in simpler matters where no prehearing is held, like most minor variance and consent hearings, any person is entitled to show up on the day of the hearing and ask for participant or party status. Although represented persons will usually advise the Board in advance of their intention to participate, it is always possible that someone unexpected will show up at the hearing itself.
How long will the hearing last?
That depends on the complexity of the hearing. Uncontested or settlement hearings may conclude in under an hour. Contested hearings with at least one expert witness testifying typically last for the entire business day, sometimes two or more days. Of course, more complex hearings can last for weeks or even months.
What is a settlement? How will changes to the design affect my hearing?
Parties will often work together to address concerns before the hearing. If the concerns are resolved, a joint submission can be put to the Board for approval. Sometimes a settlement will involve conditions that address concerns (e.g. landscaping or fencing requirements), and sometimes a settlement will involve revisions to the plans and associated variances or zoning requirements.
The Board can consider an amended proposal, but before doing so, the Board will have to consider whether the revisions are “minor” so that further notice will not have to be circulated. In other words, the Board will look at whether any of the changes is significant enough that persons who were not concerned with the original proposal might now have concerns. If the Board finds that the changes are not minor, it can adjourn the hearing and recirculate notice. Typically, changes that involve the elimination of variances or the reduction of the magnitude of variances will not trigger a recirculation of notice. A different option, in the event that the changes may not be considered minor, is to voluntarily circulate notice before the hearing. We have done this in the past in an effort to ensure that the hearing will proceed on the scheduled date.
Will the Board give a decision right away?
Sometimes. In some cases, the Board will issue an oral decision on the spot after the hearing is finished, with written reasons to follow. In hearings that are uncontested, or settlement hearings, a decision may be issued orally.
In other cases (we would say most cases), the Board may reserve its decision and issue a written decision after the hearing.
How long will the decision take?
That depends. I would suggest planning for at least 4 weeks after the hearing for a decision to issue. Sometimes, it takes longer.
What if no one shows up to oppose? Is my approval guaranteed?
No. The Board has a residual obligation to consider the planning merits of any development proposal. Even if no one shows up to oppose, the Applicant must submit planning evidence to support the proposal and the Board must consider whether the proposal meets the requisite legal tests for approval. If an application does not represent good planning, the Board will refuse it.
Do I need a lawyer?
It is possible to represent oneself at the Board. The Board is typically lenient with self-represented persons during a hearing. However, the lawyer’s role is, in our humble opinion, very important. We direct strategy, work with witnesses to present the most compelling case, cross-examine other parties’ witnesses to highlight weaknesses in the opposing case, and make legal argument to the Board.
It is especially important to note that the planner hired to give expert testimony cannot also play the role of advocate (lawyer) at the Board. The Board has issued many decisions stating that planners (or any expert witnesses) must be objective and unbiased, and cannot play a dual role – they must either give expert evidence, or they can act as advocate and cross-examine other witnesses, make argument, etc.
Do I really have to hire a planner?
If you are the Applicant – yes. The Board must base its decisions on land use planning considerations. Laypeople can call evidence, and that evidence is important to the Board. However, only an expert land use planner is qualified to provide objective opinion evidence in land use planning. We understand that the hearing can become costly. We usually advise clients that if the budget can only accommodate a planner or a lawyer, they should hire a planner.
The Board’s decision is final, right?
Not necessarily. This is a common misconception. Although appeals from a decision of the Ontario Municipal Board are rare, there are two ways to file an appeal.
The first is commonly referred to as a “section 43 review”. Under s. 43 of the Ontario Municipal Board Act, the Board has the power to review or rehear its own decision. The Board’s Rules of Practice and Procedure (Rules 110-119) set out the circumstances in which a review will be granted and the procedure that must be followed. In summary, a review will only be granted where there is a convincing and compelling case that the Board acted outside of its jurisdiction, violated the rules of natural justice or procedural fairness, made an error of law that affected the outcome of the Board’s decision, heard false or misleading evidence, or where important new evidence becomes available after the hearing. All of these are serious circumstances that could warrant reconsideration of a matter. Section 43 review requests are rarely granted.
The second way to appeal an OMB decision is under s. 96 of the Ontario Municipal Board Act. This section provides that an appeal may be sought to the Divisional Court (a branch of the Ontario Superior Court of Justice) on a question of law, with leave of the Divisional Court. This means that a party must first bring a motion to the Divisional Court asking for “leave” or permission to appeal. In order to obtain leave, the moving party must show three things:
- that the alleged error is an error of law, not an error of fact
- that there is reason to doubt the correctness of the Board’s decision
- that the alleged error is of sufficient importance to merit the attention of the Divisional Court.
Appeals to the Divisional Court are also rare. Since they are court matters, parties are at increased risk of having to pay some portion of the costs of the successful party – that may be one reason that Divisional Court appeals are not frequently filed.
Can I sue the neighbours to recover my costs?
In traditional court litigation, the winner usually recovers some portion of their costs. This is not the case in Ontario Municipal Board proceedings – win or lose, costs are not generally awarded. The rationale for this aversion to ordering costs is that land use planning is a public process that benefits from public participation, and that the threat of a potential costs award discourages public participation.
Of course, there are exceptions to this rule; costs are awarded at the Board in rare and egregious circumstances. The Board’s Rules of Practice and Procedure (Rule 103) set out the circumstances in which a costs order can be made. They include circumstances of “clearly unreasonable, frivolous, vexatious or bad faith conduct” such as presenting false evidence, failing to attend a hearing, and maligning the character of another party.
Clients are often frustrated at the delay caused by an OMB appeal, and want to know if they can recover their costs from objecting parties of the City. Our default response to this question is no; unless the above circumstances exist, you should not expect to recover your legal costs.