The last perceptive Martian to visit the proceedings of the Ontario Municipal Board posted an interesting report on the experience once she returned home to the real world. Madam Justice Joan Lax discovered a lawless land, nestled within the bosom of the state yet impervious to statute, policy or natural justice, and it rather shocked her.
It would be wrong to say the judge was puzzled by her encounter with such jurisprudence, which occurred when the city attempted to appeal one especially arbitrary OMB diktat - the one that allowed unfettered gentrification of the industrial lands near Queen and Dufferin. But at bottom she reacted like any layperson would in the same position, like many have before her. What is it that makes this tribunal, she and others have wondered, exempt from the very laws and regulations it is supposed to enforce?
How can it just ignore the provincial Planning Act and all the policy statements that accompany the act, as well as laboriously detailed municipal plans and zoning regulations, when it judges planning disputes? Shouldn't judges give reasons for their decisions? What's the point of having all that law and policy if it counts for nothing?
Apart from a passing reference to the "existing statutory and policy framework," the board gave no consideration to prevailing rules and laws in making its Queen West Triangle decision, according to Judge Lax. She wrote that its reasons were "devoid" of any discussion of the actual laws governing the dispute. Confounding conventional wisdom that the city's court challenge was the height of effrontery, she readily endorsed it.
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So now a real court will judge the actual merits of this increasingly notorious case. Although the city settled with two developers prior to the court decision, angering local activists, the future of three-quarters of the precinct remains uncertain. A further court victory would not only preserve the city's vision of a mixed-use neighbourhood, rather than a purely residential enclave, it would re-assert the legitimacy of an impressive-looking but easily ignorable planning regime.
But the half-victory is enough today to help bring back the OMB as a potentially volatile issue. What the Queen West Triangle case proves beyond doubt is that the reforms the Liberals promised in the last election just didn't take.
We know that because the Liberal reforms, though timid, addressed the same fundamental problem identified by Judge Lax and many previous critics: the tribunal's refusal to acknowledge any authority but its own. Nothing has changed, for reasons your local MPP will be glad to explain as soon as the briefing note goes out.
In the meantime, the various (though generally elite) constituencies that care about such things are agitated as never before. The downtown hipsters are marching from the south and the millionaire cottagers from the north, both aiming for Queen's Park, while militias raised in local zoning battles across the province rush to arms. That great dream of provincial reform, the end of our unique embarrassment, the OMB, appears within grasp.
At least it does to those who let their valid impressions of the OMB influence their view of provincial politics. Those who have seen how useful the thing has been to successive governments ruled by three different parties remain a little blind to the apparition.
Imagine what trouble the Liberals would be in today if they didn't have the OMB insulating them from the current millionaires' revolt on Lake Simcoe, which is growing nicely into a regional environmental alarm. In time-honoured democratic fashion, Progressive Conservative leader John Tory laid out a clear plan to protect Lake Simcoe from excessive development. But the government is solemnly bound to let the OMB decide the matter, to let "justice" take its course - until such time as it is safely re-elected.
Just as the steady eutrophication of Lake Simcoe kills animal life by depriving it of oxygen, the OMB smothers dissent.
Tory premier Mike Harris hid for years behind an extended OMB hearing until an impatient electorate finally forced him to pass straightforward legislation protecting the Oak Ridges Moraine. His government actually joined the appeal at the board, arguing for the protection it refused to legislate - a farcical attempt to legitimize its dogsbody tribunal.
So watch for Liberal irregulars to join the influential appellants now arguing about Indian pottery shards on Lake Simcoe and floor-area ratios on Queen Street. It would be a good project for recently deposed citizenship minister Mike Colle, a stalwart anti-OMB activist when he sat in opposition to the Tories.
At the same time, he can explain why nothing has changed in the four years since he and his party promised fundamental reform of the OMB.
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