The OMB exerts great influence over how Toronto's cityscape is shaped. We explain how the controversial land-use planning tribunal works.
Torontoist Explains is a recurring series where we tell you everything you need to know about local issues, ideas, and how things work.
What is the OMB?
The Ontario Municipal Board, or OMB, is a quasi-judicial body that hears land-use planning disputes, and is especially controversial in Toronto. In its own words, the OMB is an independent tribunal that “conducts hearings and makes decisions on matters that have been appealed to the OMB under specific provincial legislation.” In the eyes of its critics, it’s an insulting anachronism, a legacy of a time when Ontario cities lacked the resources and expertise to be trusted with their own decision-making.
While the OMB has a number of roles, most appeals involve the Planning Act, for which the OMB is the appeal body of last resort after a decision has been made by municipal authorities. For example, if you’ve got a visionary plan to fill your lot with a to-scale medieval castle complete with 50 foot walls, turrets, and moat, and the Committee of Adjustment says no, you can go to the OMB for another kick at the can. Conversely, if the city gives the thumbs-up to your urban intimidation project, the folks next door can put down their torches and pitchforks and appeal to the OMB instead. The OMB’s authority includes small projects like patio extensions, and much larger ones, like condo buildings and housing developments.
How do OMB appeals work?
Prolonging the battle with your neighbours is surprisingly affordable—most appeals cost only $125, although costs can quickly escalate when you start bringing in outside lawyers and planners to support your case.
Once your appeal is received by the OMB, staff will review it and send it into one of four streams: pre-hearing, hearing, mediation, or motion. The majority of appeals go straight to a hearing.
How does the hearing work?
You will appear before an OMB Member to make your case, along with any experts you’ve engaged for the occasion. Any opponents to your plans will also have a chance to have their say. Once everyone has presented their views, the OMB Member will arrive at a decision based on the evidence, applicable law, and planning principles. Since 2007 decisions have technically been required under the Planning Act to “have regard to” local council decisions, but the non-binding nature of the phrase renders it toothless, and municipal wishes and plans can be, and often are, disregarded. From 2009-2011, 72 per cent of applications refused by the Toronto Committee of Adjustment were upheld by the OMB, and 9 per cent were overturned. Most of the remainder were withdrawn.
Who are the OMB members?
OMB Members are appointed by the Ontario government for three-year terms (although a member can serve multiple consecutive terms). Members come from a variety of backgrounds including planning, education, and politics, although a plurality of current Members are lawyers.
Does the OMB provide a net benefit?
That’s the big question, and it depends who you ask. For smaller municipalities with few professional staff to inform the planning process, the OMB can bring expertise to the decision-making process. More cynically, it can allow local politicians to avoid necessary but unpopular actions, knowing that the OMB will overturn their decision anyway. And parties that can afford expensive planning and legal help for OMB hearings—developers and some NIMBY groups—may gain disproportionately from an extended and complex decision-making process that’s too costly for stakeholders without deep pockets.
For larger cities like Toronto it can be dispiriting to have decisions which have been crafted by capable staff and approved by an elected council overturned by an OMB ruling, often by a Member who doesn’t live in the affected municipality. As noted above, OMB Members are free to ignore the wishes of residents and council and they often do, sometimes at high cost to local neighbourhoods. A recent example is the High Park ruling last month, when the Board sided with developers against the city, approving two 25-storey glass condo towers in an already dense residential neighbourhood.
If we don’t like it, why don’t we get rid of it?
It’s not for want of trying. But Toronto is, in legal terms, a “creature” of the provincial government, in much the same way as the Monster was the creature of Victor Frankenstein, and with a similarly cordial relationship.
In 2012, Council adopted a motion asking the province to amend the relevant acts so as to “abolish the Ontario Municipal Board’s jurisdiction over Zoning By-law Amendments, Official Plan Amendments, Site Plan, Subdivision and Condominium Plan Approvals and Community Improvement Plans and appeals under the Heritage Act,” and to replace the current structure with an appeals board comprised of Toronto residents. Admirably quixotic as the gesture was, and reasonable by any measure, it was predictably ignored by the province. Such a move would have cost them a third of their annual OMB intake at a stroke while setting a precedent for other Ontario cities seeking control over their own planning and growth.
In 2013, MPP Rosario Marchese (NDP, Trinity-Spadina) introduced a private member’s bill called “Respect for Municipalities Act (City of Toronto),” which would have effectively neutered the OMB in its relationship with Toronto. The bill passed first and second readings before the Liberals and PCs teamed up to kill it in committee.
A 2014 private member’s bill from former Toronto city councillor Peter Milcyzn (Liberal, Etobicoke-Lakeshore) proposes to sharply curtail OMB powers on local matters, without making the body altogether obsolete. Significantly, the bill would modify the current law, which says the board must “have regard to” city council decisions such that key decisions would have to “be consistent with” council rulings. This bill also passed second reading and is currently in committee, from which it seems unlikely to emerge.
More likely to succeed is Bill 73, the “Smart Growth for Our Communities Act,” which is currently in second reading. A government-sponsored bill, it’s less radical than some in Toronto would like. However, it does limit the power to appeal official plans and reduces the types of appeals that can be made to the OMB, notably of policies that conform to provincial policy.