June 25, 1999
To:Administration Committee
From:H.W.O. Doyle
Subject:Retention of Former Employees as Expert Witnesses at Ontario Municipal Board Hearings
Purpose:
To request Council authority for the City Solicitor to retain on a short term basis former employees who took part in a
separation program or received a retirement incentive as expert witnesses at Ontario Municipal Board hearings in situations
where City staff are not in support of Council's position and are unable to provide evidence under oath.
Funding Sources, Financial Implications and Impact Statement:
Not applicable
Recommendations:
That the City Solicitor be authorized to retain former employees who received a termination package from the City on a
short term basis as may be required from time to time, to provide evidence at Ontario Municipal Board hearings in support
of Council's position where staff are unable to provide evidence in support of Council's position.
Comments and/or Discussion and/or Justification:
In situations where Council does not adopt the recommendations of Planning Division staff with respect to development
applications and the matter is appealed to the Ontario Municipal Board, internal planning staff are unable to provide
evidence at the Board at the hearing of the matter. In these circumstances, the City Solicitor is required to retain the
services of an outside planning consultant to provide expert evidence at the Board.
Outside consultants are retained on a short term basis from one week to several months depending on the particular file.
They are paid for the number of hours worked on the file based on an estimate provided at the time they are retained. The
City Solicitor determines the most appropriate outside consultant to retain based on among other matters, the issues raised
by the particular file, the expertise of the consultant, the consultant's perceived credibility before the Board and their
previous Board experience. Furthermore, it is not uncommon for an outside consultant to refuse a retainer from the City
because they support the position of planning staff and are unable to provide evidence in support of Council's position. The
City Solicitor will then reassess the file and approach another consultant. A review of planning consultants retained by the
Legal Division indicates that various consultants have been retained over the past year.
There are cases where former employees would in the opinion of the City Solicitor, be excellent witnesses at the Board in
support of Council's position. The former employees generally held senior positions within the former municipalities and
as a result, have indepth knowledge of City by-laws, policies and practices. In addition these former employees have
considerable experience before the Board and are generally well received by the Board and are considered to be credible
witnesses.
Current City policy does not permit former employees who took part in a separation program or received a retirement
incentive to be retained as outside consultants for a period of two years starting from an employee's separation date. As a
result, the Legal Division is unable to utilize these consultants in appropriate situations to support Council's position.
There are situations where the flexibility to retain a former employee would be beneficial to the City's case before the
Board and in the opinion of the City Solicitor, would present Council's position in a most satisfactory manner.
Conclusions:
It would be in the City's interest to provide the City Solicitor with the flexibility to determine on a case by case basis which
outside planning consultant would best serve the needs of Council notwithstanding that the outside consultant retained may
be a former employee who participated in the separation program or received a retirement package.
Contact Name: Anna Kinastowski,
Director Planning & Administrative Tribunal Law
tel: 416-487-5886
Fax: 416-397-4420
H.W.O. DoyleMichael Garrett
City SolicitorChief Administrative Officer