Part of The Executive

Various municipal concerns about the powers of the Ontario Municipal Board. Some municipal councillors arguing that it should perhaps be abolished. So much concern that the Ontario government is considering “curbing the powers” of the Tribunal.

Some dimensions of the debate, from an article by Emma Jackson, Ottawa Metro, September 28, 2016:

Like it or not, Ottawa needs the Ontario Municipal Board, [Ottawa] Mayor Jim Watson said…

“In a democratic society, you need some mechanism to appeal a decision, and if it’s not the OMB, it’s the court system, which is significantly more expensive,” Watson said after council. “Are there ways to improve it? Certainly. But not throwing it out, because you need to have some mechanism for people to appeal a bad decision by city council.”

Watson’s comments follow a letter sent by six Ottawa city councillors to the province suggesting the unelected municipal appeals body, if not outright abolished, should be limited to judicial review when dealing with the planning decisions of major cities.

What it missing from this debate, it would appear, is an appreciation that the Ontario Municipal Board, as is the case with other administrative tribunals, is part of the executive branch of government. All the work that it does could be done within a government department or departments, if the government so chose. It is not a court. It makes quasi-judicial, rather than judicial decisions. The degree of independence of its members, and the mandate of the tribunal, are all within the discretion of government. It does not set legal precedents; only courts do, when courts render decisions in relation to reviewing the decisions of administrative tribunals.

Furthermore, municipalities exist in the discretion of a provincial government, since municipalities have no distinct constitutional status. Therefore, the degree of review of council planning decisions, and how such reviews will be conducted, remain entirely a matter of provincial government prerogative. In terms of a need for “some mechanism to appeal a decision, and if it’s not the OMB, it’s the court system”. The ultimate appeal forum remains that of the courts.

However formal the decisions may be at an administrative tribunal level, including holding hearings in courtrooms and, perhaps adding to the confusion, sometimes wearing robes, what those administrative tribunals do is what the government is choosing not to do directly, for whatever reason. It is always open to a government to establish specialized courts, involving the formalities of an independent judiciary and related rules and procedures, such as strict adherence to the laws of evidence, to which administrative tribunals are not bound. Such specialized courts could then judicially review the direct decisions of government. Perhaps that should be the larger focus of concern.

Advertisements

About brucelarochelle

http://www.lmslawyers.com/bruce-la-rochelle
This entry was posted in Administrative Law. Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s