H.W. Osmond Doyle, LL.B., LL.M.

City Solicitor

Legal Services

55 John Street

Stn.1260, 26th Flr., Metro Hall

Toronto ON M5V 3C6

Tel: (416) 392-8047

Fax: (416) 2-3848

September 17, 1998

To:Urban Environment and Development Committee

From:H.W.O. Doyle

City Solicitor

Wanda Liczyk

Chief Financial Officer and Treasurer

Virginia West

Commissioner of Urban Planning and Development Services

Subject:Processing of Requests and Criteria for "Intervenor Funding"

Purpose:

This report responds to the Urban Environment and Development Committee's request for a joint report from the City Solicitor and the Chief Financial Officer and Treasurer on the criteria for extending "intervenor funding" to community groups. It also responds to the Committee's request for a report from the Commissioner of Urban Planning and Development Services on whether it is appropriate for applications by community groups for intervenor funding to be reviewed by a City Committee; and, if so, to identify the Committee to conduct the review.

Funding Sources, Financial Implications and Impact Statement:

If Council adopts criteria for use in determining whether to provide funds to community groups to be used for participation in Ontario Municipal Board hearings, Council will essentially have established a new grant program. The program would require ongoing funding and an addition to the budget. Establishing such a program would be inconsistent with the Council decision that grants be sustained at 1997 levels and that there shall be no new grant programs in 1998, pending the development of the City's future grants policy. Once a program has been established, all community groups will have the same access to these grants. Even if Council does not adopt criteria, ongoing "intervenor funding" would have major unbudgeted implications.

Recommendations:

It is recommended that:

1. Any requests from community groups for funding to participate in Ontario Municipal Board hearings be forwarded to the Commissioner of Urban Planning and Development Services.

2. The Commissioner of Urban Planning and Development Services be directed to prepare a report to the Urban Environment and Development Committee on each request recommending how Council should respond to the request for funding.

3. Council not adopt criteria for considering requests from community groups for participation in Ontario Municipal Board hearings.

Council Reference/Background/History:

At its meeting of July 13, 1998, the Urban Environment and Development Committee had before it a report from the Commissioner of Urban Planning and Development Services regarding "Intervenor Funding for community groups at Ontario Municipal Board hearings". The report 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". The Committee referred the report to both the City Solicitor and the Chief Financial Officer and Treasurer requesting this joint report. The Commissioner of Urban Planning and Development Services was requested to provide a further report to address the question of whether it is appropriate for applications by community groups for intervenor funding to be considered by a City committee; and, if so, to identify the committee.

Comments and/or Discussion and/or Justification:

A.Circumstances in which intervenor funding would be used

This report discusses the use of criteria to determine whether to grant funds to community groups for participation in Ontario Municipal Board hearings. (It does not address either "participant funding" which generally relates to the earlier stages of a planning process or hearings before other tribunals.) Funding could be requested in a number of scenarios:

(a) to assist a community group in opposing the City at an OMB hearing (which was often the case when funds were provided under the Intervenor Funding Project Act);

(b) to assist a community group in participating in a hearing where the City's interest overlaps with that of the community group but where the City is not a party; or

(c) the same facts as (b), except that the City is a party.

In (a), City Council will have already instructed the City Solicitor to take a specified position at the Ontario Municipal Board on behalf of Council. Council will then be asked to provide the community group with money to use in opposing the City's position. It is difficult to envision circumstances in which Council will wish to do this.

In addition, Council's power to make grants, which is contained in the Municipal Act, is qualified by the requirement that the grant be "for any purpose that, in the opinion of the council, is in the interests of the municipality." It is presumed that a Council decision to pass a zoning by-law, adopt an official plan amendment or instruct the City Solicitor to participate in an Ontario Municipal Board hearing is "in the interests of the municipality". Before granting funds to a community group to oppose the City's position at the Ontario Municipal Board, Council would have to determine that the grant was also "in the interests of the municipality". Circumstances in which this determination could also be made may be rare.

In (b), instead of providing funds to the community group, Council could instruct the City Solicitor to request party or participant status for the City at the Ontario Municipal Board hearing. The City Solicitor could be instructed to participate in the hearing representing the City's interests. In most cases, the City's own planners could work with the City Solicitor. In some cases it might be necessary to provide funds for outside planners to be hired. While the City Solicitor would be representing the City and not the community group, the overlap between the City's interests and the group's interests would mean that, indirectly, Council would be providing support to the community group. This could be likened to a grant "in kind" and happens frequently, particularly with Committee of Adjustment matters. In these cases, the instructions to the City Solicitor are often triggered by a request from a community group.

In (c), the City would already be indirectly supporting the community group's position through the City's own participation.

It should be noted that the Ontario Municipal Board often schedules an evening hearing date for the purpose of receiving input from interested members of the public. The cases in which Council may wish to provide funding to community groups for participation in OMB hearings may be very rare.

B. Policy options regarding intervenor funding

The June 26, 1998, report of the Commissioner of Urban Planning and Development Services sets out the following three policy options for City Council:

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

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

(3)Establish a formal policy and grants program.

In this report we recommend that you choose option (1) but not adopt criteria for assessing the funding requests. If option (1) is chosen, criteria may or may not be used. If option (2) is chosen, criteria would be useful, and if option (3) is chosen, criteria would be required.

If option (1) is chosen, as the Commissioner recommends, criteria could, but need not be adopted. There would be some risk in adopting criteria because criteria could encourage applicants. If there are adopted criteria, any applications should be assessed against them. The use of criteria to assess applications for funding becomes a grants program which would require ongoing funding and an addition to the budget. Should Council adopt a policy of not funding community group participation in OMB hearings, Council may still decide to provide funding to community groups in exceptional cases. There is no need to adopt criteria for identifying the exceptional cases.

C. The criteria to be used

Section 7 of the Intervenor Funding Project Act (the "IFPA"), (which has been repealed), sets out the criteria that were used under that statute to determine which applicants that had been granted intervenor status would receive funds. Section 7 is set out in Appendix "A" to this report. The same criteria were also set out in Appendix "A" to the Commissioner's report of June 26, 1998.

It should be understood that the criteria included in s. 7 to the IFPA were not applied to Ontario Municipal Board hearings. The IFPA applied only to hearings before the Ontario Energy Board, the Environmental Assessment Board or a joint board established under the Consolidated Hearings Act. While a joint board could include the Ontario Municipal Board, a joint board would be the only situation in which an OMB matter could have been covered by the IFPA.

In 1996 when the IFPA was repealed, the Environmental Assessment Act was amended to include a requirement for a public participation in the process of preparing an environmental assessment. Unlike the Planning Act, the Environmental Assessment Act had not previously contained a public consultation requirement.

The Planning Act requires that at least one public meeting be held in respect of proposed official plans, zoning by-laws and amendments to these documents. It also requires that notice of the public meetings be given. In addition, it requires that any person who attends the meeting should be given the opportunity to make representations in respect of the proposed official plan or zoning by-law or amendment. For official plans and official plan amendments, an opportunity to make written submissions is also required by statute. In addition to the public participation required by statute, the City's Planning Division engages in extensive public consultation with respect to these proposed planning documents. The public, therefore, already has several opportunities to participate in the planning process.

A few additional points are worth noting about the IFPA criteria. First, the criteria were used to assess favourably requests from groups adverse in interest to the proponent of an undertaking. The legislation allowed the Board to impose a funding obligation on a proponent of an undertaking. It may be that City Council, does not wish to impose a similar obligation upon itself, particularly since public input is already part of the planning process. Second, the funding application was assessed by a body without an interest in the proceedings, since the criteria were designed to apply equally to those whose interests were consistent with and those whose interests were adverse to the proponent's. Third, it would be rare for the criteria in s. 7(1) to be met without the City being involved in the hearing, unless the City had no interest in the subject matter. Where the City has no interest in the subject matter, it is unlikely that there could be a persuasive argument in favour of City Council providing funding to a community group, that could meet the Municipal Act test.

D. Using intervenor funding criteria

The criteria set out in Appendix "A" from s. 7 of the IFPA represent valid considerations and include elements common to intervenor funding programs. In general, the considerations include whether the applicant has an ascertainable interest that should be represented at the hearing and requires separate representation; whether the applicant requires financial assistance to participate and has a proposal that demonstrates how the money will be used; and whether the applicant has a record of commitment to the issues. In addition, it is suggested that any grants should be to a community group that intends to take a position at the OMB which is consistent with the interests of the City.

To apply these criteria, Council would require an application form, an assessment of the application and a process for reporting that assessment. In addition, it would be wise to have an agreement with the recipient to ensure, among other things, that funds were spent for the stated purpose. Under the IFPA, funds were only awarded after the applicant had been granted intervenor status at the hearing.

Any system like the one described above would be an additional grant program. While the Urban Environment and Development Committee is the appropriate committee to review and recommend the policy and the structure of the program, the Municipal Grants Review Committee would be the appropriate committee to consider applications. This would require additional staff time to coordinate the process and to prepare reports about the applications. Establishing a grant program would be contrary to the Council decision to sustain grants at 1997 levels and not to adopt any new grant programs. Any new grant program for "intervenor funding" would require ongoing funding and an addition to the budget.

E. The Process for Considering Funding Requests Should Council Choose not to Support "Intervenor Funding"

Should Council decide not to support "intervenor funding", there would be no grant program and no amount budgeted for such funding. Council could still consider requests on a case-by-case basis, and, in exceptional cases, may decide to provide some funding. Any requests granted would have to be funded by the Council contingency fund.

Community groups will usually ask one or more City Councillors to champion their request for funding. In the absence of a formal grant program,, any requests should be submitted to the Commissioner of Urban Planning and Development Services for the preparation of a report to the next Urban Environment and Development Committee meeting. The report would recommend the manner in which City Council should respond to the request. Council may attach suitable conditions to any grant of funds. 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.

The funding requests should be forwarded to Community Councils for information, but Community Councils should not consider these funding requests. The controversy prompting the request may be a local planning issue, but all "intervenor funding" requests are of "city-wide interest". The requests also relate to the development of consistent administrative and budgetary practices.

In the alternative, should Council decide to adopt criteria and create a grant program, all applications would have to be assessed against the criteria and considered by the Municipal Grants Review Committee rather than the Urban Environment and Development Committee. It is anticipated that this process would result in more applications and more funding granted. In addition, it would require that amounts be budgeted for the grants.

Conclusions:

Should Council wish to adopt criteria for assessing intervenor funding requests, Council will need to establish a grants program, and refer this matter to the Budget Committee for consideration. Should Council decide not to support "intervenor funding", requests may still be considered, and, in exceptional cases, Council may decide to provide funds. Criteria should not be adopted, as this would encourage applications and lead to the creation of a grant program. Any requests should be referred to the Commissioner of Urban Planning and Development Services for the preparation of a report to the Urban Environment and Development Committee. The report should recommend the manner in which Council could respond to the request.

Contact Name:

Wendy Walberg (392-8078)

Marie McCutcheon (392-0437)

Gail Johnson (392-1299)

H.W.O. DoyleWanda Liczyk

City SolicitorChief Financial Officer

Legal Servicesand Treasurer

Paul BedfordVirginia M. West

Executive Director and Chief PlannerCommissioner

Urban Planning and Development Services

Appendix "A"

Intervenor Funding Project Act

(repealed in 1996; s. 7 set out below with bolding added to the text)

7. (1) Intervenor funding may be awarded in relation to issues,

(a) which, in the opinion of the funding panel, affect a significant segment of the public; and

(b) which, in the opinion of the funding panel, affect the public interest and not just private interests.

(2) In deciding whether to award intervenor funding to an intervenor, the funding panel shall consider whether,

(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 for and commitment to the interest;

(f) the intervenor has attempted to bring related interests 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 the 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.