August 5, 1999

To:Policy and Finance Committee

From:H.W.O. Doyle

Subject:Source of Funding for Outside Consultants Required for Ontario Municipal Board Hearings

Purpose:

To advise Council that the Legal Services Division budget allocation for outside consultants for Ontario Municipal Board hearings has been almost fully committed, that there are insufficient funds available to ensure that outside consultants can be retained for the balance of 1999 and to obtain Council authority that expenditures beyond the current budget allocation be charged to the Corporate Contingency Account.

Funding Sources, Financial Implications and Impact Statement:

The amount expended on outside consultants is a matter beyond the control of the City Solicitor. It is difficult to estimate the amount which will be required for the retention of outside consultants to year end. The final amount is dependant on future decisions made by Council on planning applications, appeals of Committee of Adjustment decisions, the complexity of the files under appeal, the length of the hearing and the scheduling of the hearings by the Ontario Municipal Board. In view of the fact that the budget allocation of $500,000.00 has been almost fully spent or committed to date, authority is required to charge expenditures beyond the budget allocation to the Corporate Contingency Account. It is estimated that up to $300,000.00 may be required to year end.

The Chief Financial Officer and Treasurer has reviewed and concurs with this financial impact statement.

Recommendations:

1. That expenditures beyond the $500,000.00 budgeted in the Legal Services budget for outside consultants for Ontario Municipal Board hearings be charged to the Corporate Contingency Account.

2. That the City Solicitor be directed to report to Policy and Finance Committee in January 2000 on 1999 actual expenditures for outside consultants.

3. That Council confirm that the City Solicitor is authorized to retain outside consultants for all Ontario Municipal Board hearings where the Chief Planner and his staff are unable to provide evidence under oath in support of Council's position unless Council expressly directs the City Solicitor not to retain outside consultants on a specific matter.

Council Reference/Background/History:

When Council makes a decision on a planning matter which is not supported by the Chief Planner and his staff and the matter is appealed to the Ontario Municipal Board, the City Solicitor must retain outside consultants to present evidence under oath in support of Council's position at the Ontario Municipal Board hearing. Where the City does not present evidence under oath, there is an appearance that the decision may have been frivolous or made without rational basis with the result that there is an increased likelihood that the Ontario Municipal Board will overrule Council's decision and the increased possibility of costs being awarded against the City.

The practices in the former municipalities varied somewhat and in some recent instances, Council has specifically directed the City Solicitor to retain outside consultants. This might lead to the conclusion that unless Council directs that the City Solicitor retain outside consultants, he is not authorized to do so. In view of the consequences of not providing evidence at an Ontario Municipal Board hearing, this is not recommended and it would be appropriate to confirm that the City Solicitor is authorized to retain outside consultants for all Ontario Municipal Board hearings where the Chief Planner and his staff are unable to provide evidence under oath in support of Council's position unless Council expressly directs the City Solicitor not to retain outside consultants on a specific matter.

At amalgamation, the 1998 budgets of the former municipalities provided for a total of $209,200.00 for the retention of outside consultants for Ontario Municipal Board hearing. During the 1999 budget process, Council increased this amount by $290,800 for a total of $500,000.00 which was allocated to the Legal Division's Operating Budget for this purpose. To date, these monies have been almost fully committed. Appendix "A" indicates the amounts approved and spent on outside consultants since August 1, 1998. The amount of $302,851.35 has been spent in 1999 to date. A further $187,000.00 has been committed for hearings which have been scheduled for 1999. The funds spent and the amount committed to date totals $489,851.35. Furthermore, there are currently three hearings which may be scheduled in 1999 for which outside consultants will be required but for which estimates are not yet available. In addition, it appears that the amount spent on some hearings may exceed the original amount estimated. The Legal Division can no longer confirm that sufficient funds are or will be available in the Division's Operating Budget to retain outside consultants for hearings which may arise later in 1999.

It is difficult to estimate the amount which may be required to year end. The amount depends on future decisions of Council on planning applications including appeals of Committee of Adjustment appeals and whether Council adopts the Planning Division's recommendations. The amount required varies depending on the length and complexity of the case. The amount required will also depend on the scheduling of the hearing dates by the Ontario Municipal Board. If, for example, a decision made by Council in September results in a December hearing, funds will be required this year. On the other hand, a Council decision in December will likely mean a hearing date in 2000. Notwithstanding these uncertainties, in view that almost $490,000.00 has been spent or committed to date, it is reasonable to assume that a similar additional amount will be required to year end.

The Finance Department has advised that it would be appropriate that Council authorize that all expenditures for outside consultants for Ontario Municipal Board hearings beyond the $500,000.00 budget allocation be charged to the Corporate Contingency Account.

Conclusions:

In order to properly present Council's position at the Ontario Municipal Board, it is necessary to provide for additional expenditures for outside consultants to year end. It is recommended that expenditures for outside consultants for Ontario Municipal Board hearings beyond the Legal Services Division budget allocation be charged to the Corporate Contingency Account. It would also be appropriate for the City Solicitor to report to Committee early in 2000 on 1999 actual expenditures in order to determine an appropriate budget allocation for this purpose.

Contact Name:

Anna Kinastowski

Director Planning & Development Law

Legal Services Division

tel: 392-0080

fax: 397-4420

H.W.O. Doyle

City Solicitor

Legal Services