Fun and Games at the OMB, 5/5, Can you fight city hall?

Can you fight city hall?

Well, you can try.


above: artwork hanging in hallway outside the hearing room pretty much sums it up

At the OMB it is hard to “out planner” the entire city planning department, or the developers hired planners, as their resources and depth of knowledge is always deeper and they’ve been through the purgatory mill before.

Similarly, we didn’t have a Toronto lawyer who specializes in OMB and development issues.

So we put some effort into providing lay witnesses who could offer simple truths.

Our more nimble and articulate witnesses were “shut down” by ignoring them and offering minimal cross examination. Less chance to talk, that way.

But the local residents of the street shone brightly. When one gave evidence of the difficulty getting an ambulance to take his anaphylactic child to the hospital, everyone was leaning forward to hear the story. It was the most movement I saw the chair make in three weeks.

Some of the city and developer witnesses went on and on about things (remember that garage door location? or the architectural merit of the building?)  that were not issues to us. We didn’t cross examine that testimony because it wasn’t relevant to our complaint. Nonetheless, in the decision the chair complained loudly that we didn’t cross examine that testimony.

Some peripheral issues got taken to town. The City throughout the original planning exercise claimed the Taggart property was vacant.

It wasn’t, and isn’t.

We pointed out then, in writing, that people were living in those houses and businesses were in the commercial properties. The city refused to change the description as “vacant”.

They repeated that claim to Planning Committee.

And then to Council.

Then at the OMB appeal, they again and again characterised the lot as “vacant”.

There must be a reason for this, but I’m not sure what it could be. So at the hearing we produced photographic evidence and testimony from neighbours that the houses were occupied, which was even then contested,   though the landlord – Taggart – was sitting in the hearing room and collecting rent on the properties. It added a surreal element to the process.

above: not Perry Mason. Or even a good witness. 

The OMB hearing wasn’t like Perry Mason or TV show trials.

It was much pettier.

Scoring points came from discovering a witness hadn’t ridden the OTrain recently so how could he possibly understand how transit-oriented this building was?

Or claiming blighting land uses in the area included not just car repair garages, but their conversion to architects’ offices.

Or objecting to the use of word in a casual way that isn’t strictly to the definition the city gives it in some obscure appendix residing in Dante’s seventh circle, although in those cases I suspect the interruption was more aimed at breaking up a flow of testimony or throwing someone off track rather than being strictly on a point of law or clarity.

The games lawyers play !


The Verdict

A month after the hearing, the decision came down from the Chair.

We lost, on all accounts.

What about our argument that the front door of the building is inaccessible to para Transpo, fedex, UPS, and other vehicles unless they use the sidewalks or homeowners’ property to turn around?  The chair put his faith in the transportation consultants who state the proposal will not result in undue transportation impacts.

What about the nine storey building being the only one on 10 stub end streets, making it exceptional?

Nope, the exception is that there is any low rise zoning in Little Italy at all.

What about the 695 sq foot amenity space on the roof? Does it constitute a tenth floor?

It’s a non-countable projection, says the OMB. My guess after this no builder will put a meeting room, exercise room, or party room within the zoned-for or approved floor space within the legally developable height limit, but will always put it in an extra floor, err, sorry, projection, on the roof, provided it is less than 200 sq m (2100 sq ft). Why waste sellable space?

The OMB process wasn’t without its good points.

Like all disasters, it was an educational experience.

It wasn’t exactly a bonding exercise with the city planning department, more like a bondage exercise, with local residents on the rack.

The city, after all, gets to write up the rules, and tell the story of the process, and spin it all so it looks so legit, glossing over the machinations and missing terms of references and transcripts that gloss …

It writes the Plan itself, and I suspect somewhere in a cubicle some planner has a list of weasel words he is obliged to sprinkle through every document so that developers and big bosses can later point to those particular words and say “see, the Plan envisioned this [insert latest travesty here]”.

On the positive side, a bunch of neighbours became better friends and allies.

We all became better educated about the treacherous planning process and learned that nothing in a Plan actually means what it appears to mean.

We had a lot of shared beer nights and food at local restaurants in Little Italy.

And I would recommend the egg salad wrap in the City Hall cafeteria.

above: yet another celebration at a supportive local business. While the saints may not have blessed our case, we were still uplifted.



10 thoughts on “Fun and Games at the OMB, 5/5, Can you fight city hall?

  1. We all win when it comes to our neighbours and the camaraderie that is created when fighting giants.

    One question, I am not sure I understand why is Ontario the only province with an OMB??

      1. I think everyone is right here. The following is from the book “A law unto itself: how the Ontario Municipal Board has developed and applied land use planning policy” by John G Chipman (2002):
        “The OMB is unique in Canada in that it exercises a jurisdiction with respect to planning matters beyond that of similar tribunals in other provinces. It has for many years played a decisive role in overseeing planning in Ontario, as all land use planning decisions made by municipalities and local boards under the Planning Act may be appealed to it and it has the authority, generally speaking, to approve those decisions, refuse to approve them, or substitute its won decisions for them. Other provinces have boards which carry out some of those functions, but none exercises such an overarching degree of regulatory authority over planning activity as does this tribunal.”

    1. most provinces have an OMB type appeal or review agency, with quite varying powers and responsibilities. It is a fundamental part of canadian justice that decisions be appealable to somewhere …

  2. Thank you so much for making this effort and writing it up. While you did not achieve your goals, sharing failures can be more helpful than sharing successes, and describing the Kafkaesque OMB process for everyone to learn from will improve the chances of all who read this and choose to fight at that level. Or at least they’ll learn how comedically messed up and biased it all is.

    I find the chummy relationship between the developers and city staff particularly offensive.

    I think it was Dmitri Orlov who said something like “complexity favours the wealthy and powerful”. But open sharing and communications favour those who oppose them.

  3. Hi Eric- Can you tell me the name of the artist who did the piece in this article? I have an art background and would like to find out what the artist was trying to convey. A lot of art is tough and not meant to be decorative. I agree this is an inappropriate piece to be displayed at the OMB,

    1. In this article it’s pretty obvious, it conveys the message that if you go up against the city whether you are right or not they will try their hardest to burie you alive, and leave you for dead. And making all this while saving their asses buy using multi-meaning(I just made a new word to) words that can fit any of their pre-planned corrupted agenda.if we would bring(we the citizens) this kind of inaccurate language in court we would be asked to not use those terms and would lose immediately. They the government has been re-writing the dictionary for years just for that purpose. I can’t wait for people to wake up on so many issues. Civil war should be in our near future. I cannot wait and after all is done I will gladly replace the former oppressive regimes with a new one for the people bye the people. Marcel Courchesne for Prime Minister. Have a good day and start thinking again and again about how long you all are willing to be slaves. Not to long I hope.

  4. Your article is of special interest because the province is about to launch a review of the OMB.
    For us nit-picking followers, what was the PL number (the OMB case indicator) so we can read the decision for ourselves?


    This is the link for the OMB hearing. Norman street decision near the end.

    Finding a local planning consultant wanting to go up against the City and a big developer is difficult. A number of hearings where the City Planners are in favour and City Council are against end up with City Council searching for a planner and it often ends up being an out of town consultant.

  6. GAWP

    In some cases you might be right but in many cases certain groups have other motives and are even connected with developers just take the people who don’t support Zibi if you dig down and really look at it yes they want a massive park but the anti Zibi group is connected with a developer who wants to build a 60 floor condo in Gatineau and Zibi would ruin the view.

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