June 26, 1998

To: Urban Environment and Development Committee

From: Commissioner of Urban Planning and Development Services

Subject: Intervenor Funding of community groups at Ontario Municipal Board Hearings (All Wards)

Purpose:

This report responds to City Council’s request, at its June 3, 4 and 5, 1998 meeting, that I report on a policy for requests for intervenor funding. My comments also assess the advisability of adopting a formal policy or program.

Financial Implications:

Ongoing intervenor funding has major unbudgeted implications.

Recommendation:

It is recommended that Council not support intervenor funding but continue to make decisions on requests on a case-by-case basis, evaluating at the time of the request the availability of funds and whether other dispute resolution methods could be used to achieve the interests of the City of Toronto.

Background:

(1) Federal and Ontario experiences with intervenor funding:

The 1974 Thomas Berger inquiry into the Mackenzie Delta pipeline had a major influence on the concept of intervenor funding in Canada. Early on in the hearing, Mr. Justice Berger determined that funding would be necessary to ensure that the many diverse interests would be represented. He established criteria and obtained funding from the federal government which was distributed to native organizations, environmental groups, northern municipalities and northern businesses.

In 1985, the issue of such funding in Ontario was focused through a Divisional Court Case, "Re Hamilton-Wentworth and Hamilton Wentworth Save The Valley Committee", which prohibited the joint board (Ontario Municipal Board and Environmental Assessment Board) from awarding costs to intervenors in advance of the hearing’s conclusion. Following that decision, an ad hoc government funding program was established, and one published estimate is that over $3.5 million was paid out by the Ontario Government for intervenor funding from 1986 through 1988.

This ad hoc program was replaced by a pilot project implemented under the Intervenor Funding Project Act, 1988. Eligibility criteria and award guidelines were included in the Act. The Act passed the costs of intervenor funding on to the proponent. A major study of the first three years of the pilot project indicates that approximately $25 million was awarded to 71 intervenors, of which $23 million was awarded for one hearing involving Ontario Hydro before the Environmental Assessment Board. The average award for intervenors at other hearings was about $50,000. The pilot project legislation expired in 1996.

In 1992, the Ontario Commission on Planning and Development Reform in Ontario (the Sewell Commission) recommended a similar system of intervenor funding for appeals to the Ontario Municipal Board on any appeal of an Official Plan, Official Plan Amendment or a Subdivision Application which involves a Rezoning. The proposed eligibility criteria and award guidelines were the same as those in the Intervenor Funding Project Act (see Appendix A). An interim annual provincial budget of $500,000 was also proposed until the legislative details could be worked out for passing on the costs to the municipality, provincial agency or private proponent involved in the hearing.

The Sewell Commission’s proposal was strongly opposed by municipal representatives, including A.M.O. and some of the former municipalities in the City of Toronto. The proposal for intervenor funding was not implemented in subsequent amendments to the Planning Act.

(2) Toronto municipal experiences with grants to community groups for OMB fights:

Since amalgamation, Toronto City Council has approved two intervenor funding requests. In February, 1998, a grant of about $10,000 was made to a residents’ group in the former City of North York. In June, a grant of up to $50,000 was allocated from contingency funds to the community to oppose the Ontario Hydro Corridor lands development proposal (Ward 16, Scarborough Highland Creek).

Intervenor funding was not common in the former municipalities. In fact, only a handful of examples could be tracked down in the former municipalities of Toronto, East York and North York. Senior planning staff in the former municipalities of Etobicoke, Scarborough and York advise that, to their knowledge, those former Councils refused all intervenor grants, including for example, the funding requests from community groups opposing the Port Union Village and Price Club appeals (former City of Scarborough).

A more common response by the former Councils to funding requests was to adopt an Order Paper Motion from the Ward Councillor sending City lawyers and planners to OMB Hearings. Where staff’s recommendations differed from Council’s position, outside consultants were retained to testify.

In recent years, significant emphasis has been placed on developing innovative community consultation processes to retain and strengthen decision making by Council rather than handing over final authority to Ontario Municipal Board. As well, outside facilitators and mediators have been used to resolve or narrow disputes during the appeal period.

For example, in the former City of Toronto, the 1995 Bathurst-Strachan Working Committee involved appellants in sessions chaired by the Provincial Facilitator, resulting in amendments to the plan allowing all groups to sign off on their objections without an OMB Hearing. In 1998, for the Railway Lands, a Task Force involving appellants and chaired by the Ward Councillor plus pre-Hearing mediation sessions by the Ontario Municipal Board member resolved all matters with the result that no Hearing was necessary. Many similar examples could be gathered from the other former municipalities.

Comments:

There are three basic approaches Council could take on the issue of intervenor funding: do not support but continue on a case-by-case basis, continue case-by-case but adopt a formal policy, or establish a formal policy and a grants program. These options are assessed below.

(1) Do not support intervenor funding but continue on a case-by-case basis:

This approach would not support intervenor funding by Council. The merits of the individual grant request and an evaluation of whether there are alternative ways to resolve or narrow the issues by using working committees, task forces, outside facilitators or mediators would be relied upon. It best ensures that the final decision on a development application is made at City Council.

Given the past experience of former City Councils with intervenor funding, it is our view that the new City of Toronto Council should not adopt a policy regarding intervenor funding. Opportunities for extensive citizen participation in city planning issues and general civic matters are extensive throughout the new city. Virtually all city departments engage in consultation strategies with Toronto’s citizens.

However, Council is the ultimate decision maker in establishing policy. As long as City Council continues to have the input of the community and professional staff advice before arriving at a final position, we do not believe it is helpful or necessary for Council to provide intervenor funding to any specific group to advocate their position.

(2) Continue case-by-case but adopt a formal policy:

Should Council prefer this option, it could adopt the intervenor funding eligibility criteria and award guidelines contained in Appendix A. These eligibility criteria and guidelines were proposed by the Sewell Commission and abstracted from the former Intervenor Funding Project Act. There is no need to re-invent the wheel.

I have concerns, however, that the existence of a formal policy would encourage adversarial activity on development applications with the potential for intervenor funding being used as part of the "fight strategy" by both proponents and opponents. A formal policy may also weaken continuing efforts to expand on facilitation and mediation approaches, which are known to be faster and cheaper ways to resolve disputes.

(3) Establish a formal policy and grants program:

This approach would confuse the mandate/rationale for the City Municipal Grants Review Committee while adding to its administration costs.

An intervenor funding program may be perceived as establishing an "easy way out" for Council when faced with tough decisions. It may be criticized as a "make work" project for lawyers and consultants. It could be attacked as a potential delaying factor impeding planning, development, economic recovery and inter-municipal cooperation. All of these positions were taken by opponents to the Sewell Commission’s recommendations.

Council should also consider the potential budget impact of establishing a formal program. There are more than 500 residents’ groups across the City of Toronto, representing various interests in over 200 residential communities. Even if grants were restricted to a maximum of say, $5,000 or $10,000, an ongoing program may require hefty budget allocations.

Conclusions:

The City works hard at ensuring community access to and involvement in decision-making on planning issues. The City’s planning offices have a national reputation for leadership in successful community consultation and use of innovative facilitation and mediation approaches.

Even so, there will be occasions when Council decides it wishes to provide additional support to community groups opposed to certain issues or development applications. There are no apparent advantages to adopting a formal policy or program to deal with requests for intervenor funding.

A more realistic approach is to continue to deal with such requests on a case-by-case basis. Council can then attach any suitable conditions. This best ensures that Council makes each grant decision based on its merits and budget implications and can consider the alternative dispute-resolution techniques available at the time.

An emphasis on advance community consultation, negotiation, facilitation and mediation, rather than litigation, will best ensure that the decision making process for development and planning matters is truly accessible to all citizens.

Contact Name:

Gail Johnson

Toronto City Hall

Telephone: (416) 392-1299

Fax: (416) 392-0580

E-mail: gjohnson@city.toronto.on.ca

Reviewed by:

______________________________ ___________________________

Paul J. Bedford Virginia M. West

Executive Director and Chief Planner Commissioner of Urban Planning

City Planning Division and Development Services

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Appendix A

Potential Eligibility Criteria and Award Guidelines* for Intervenor Funding

(1) Eligibility criteria:

(a) The issue affects a significant segment of the public; and

(b) the issue affects the public interest and not just private interests.

(2) Award Guidelines:

(a) the intervenor represents a clearly ascertainable interest that should be represented at the hearing;

(b) separate and adequate representation of the interest would assist the board and contribute substantially to the hearing;

(c) the intervenor does not have sufficient financial resources to enable it to adequately represent the interest;

(d) the intervenor has made reasonable efforts to raise funding from other sources;

(e) the intervenor has an established record of concern and commitment to the interest;

(f) the intervenor has attempted to bring related interest of which it was aware into an umbrella group to represent the related interests at the hearing;

(g) the intervenor has a clear proposal for its use of any funds which might be awarded; and

(h) the intervenor has appropriate financial controls to ensure that the funds, if awarded, are spent for the purposes of the award.

• Source: "New Planning for Ontario", The Final Report of the Commission on Planning and Development Reform in Ontario, 1993