November 19, 1998.

To:Stragetic Policies and Priorities Committee

From:City Clerk

Re:Ontario Municipal Board Hearings

Recommendation:

The Budget Committee on November 18, 1998 recommended to the Strategic Policies and Priorities Committee and Council the adoption of the report (August 25, 1998) from the City Solicitor, with the following amendment:

"in the event that Council directs the hiring of an outside planner, the necessary funding be taken from the department's contingency."

Background:

The Budget Committee on November 18, 1998, had before it a decision letter (October 8, 1998) from the City Clerk, recommending that the report (August 25, 1998) from the City Solicitor be referred to the Budget Committee for review.

City Clerk

Barbara Liddiard/cp

Item No. 11

Attachment

c.Chief Financial Officer and Treasurer

Director of Budgets

City Solicitor, Attention: Doris Michel

Mr. Jeff Abrams, Director, Secretariat and Printing, Reproduction and Distribution

Natalie Early, Manager, Administration, Legal Division

Val Sequeira, Manager, Budget Services, Corporate Services and Finance

Ms. Anna Kinatowski, Director, Planning and Administrative Tribunal Law

(Decision letter dated October 8, 1998 addressed to the

Budget Committee from the

City Clerk)

City Council, at its meeting held on October 1 and 2, 1998, adopted, as amended, Clause No. 5 of Report No. 11 of The Urban Environment and Development Committee, headed "Ontario Municipal Board Hearings".

In addition, Council directed that the joint report dated September 30, 1998, from the Commissioner of Corporate Services and the City Solicitor, entitled "Retention of Planning Experts", embodying the following recommendation, be adopted:

"It is recommended that this report be referred to the Budget Committee for review."

(Clause 5 embodied in Report No. 11 of

The Urban Environment and Development Committee

as adopted by the Council of the City of Toronto

at its meeting held on October 1 and 2, 1998)

5

Ontario Municipal Board Hearings.

(City Council on October 1 and 2, 1998, amended this Clause by adding thereto to the following:

"It is further recommended that the joint report dated September 30, 1998, from the Commissioner of Corporate Services and the City Solicitor, entitled "Retention of Planning Experts", embodying the following recommendation, be adopted:

'It is recommended that this report be referred to the Budget Committee for review.'")

The Urban Environment and Development Committee recommends;

(1)the adoption of the report (August 25, 1998) from the City Solicitor; and

(2)that the City Solicitor be requested to include in the 1999 Operating Budget for the LegalDivision sufficient funds to retain any expert witnesses required for Ontario Municipal Board hearings.

The Urban Environment and Development Committee reports, for the information of Council, having requested the City Solicitor, in consultation with the Chief Financial Officer and Treasurer, to submit a report directly to Council, for consideration with this matter on October 1, 1998:

(a)providing a breakdown of the funding which was allocated by each of the former Area Municipalities for retention of any expert witnesses required for Ontario Municipal Board hearings; and

(b)specifying whether funding for this purpose was requested in the Legal Division's 1998 Operating Budget and what funding, if any, was approved.

The Urban Environment and Development Committee submits the following report (August25, 1998) from the City Solicitor:

Purpose:

To review the practices of the former municipalities and to standardize the City Solicitor's instructions to attend at Ontario Municipal Board hearings in support of Council's position with respect to planning applications.

Funding Sources, Financial Implications and Impact Statement:

If Council adopts positions which are not supported by the Executive Director and Chief Planner of City Planning, the retention of external consultants to provide evidence at the Ontario Municipal Board may be required. The Legal Department's budget does not include funds for external consultants and the necessary funds would therefore have to be made available from the Corporate Contingency Account.

Recommendations:

It is recommended that:

(1)the City Solicitor be given standing instructions to attend all Ontario Municipal Board hearings in support of Council's decisions on planning matters such as Official Plan Amendments, Zoning By-laws, plans of subdivision and condominium and site plan unless otherwise instructed by Council;

(2)the City Solicitor attend at Ontario Municipal Board hearings with respect to appeals from Committee of Adjustment decisions and severance decisions only pursuant to Council's direction to attend;

(3)where Council's position is not supported by the Executive Director and Chief Planner of City Planning, Council expressly direct the City Solicitor to retain external consultants as may be required, on a case-by-case basis, with the monies to be made available from the Corporate Contingency Account; and

(4)this report be forwarded to the Community Councils for their information.

Comments and/or Discussion and/or Justification:

In the former municipalities of Toronto, North York, Scarborough and York, the City Solicitor had standing instructions to attend at the Ontario Municipal Board in support of decisions made by Council on planning matters such as Official Plan Amendments, Zoning By-laws, plans of subdivision and condominium and site plan approval. In the former municipalities of Etobicoke and East York where external legal services were used, the Solicitor would attend in support of Council's position with respect to planning applications when directed by Council. It would be appropriate to standardize the practice throughout the City and establish the City Solicitor's standing instructions to appear at the Ontario Municipal Board in support of Council's decisions in these matters.

It has also been the practice of the former local municipalities that Council would instruct the City Solicitor to attend the Ontario Municipal Board on appeals from Committee of Adjustment decisions on a case-by-case basis. It would be appropriate to confirm that Council instructions must be given to the City Solicitor to appear at the Ontario Municipal Board with respect to appeals of Committee of Adjustments decisions.

There are times when Council's position on a planning application is not supported by City staff. In such cases, the Solicitor would have no evidence to present to the Board in support of Council's position. There is a concern that in a planning matter of some magnitude, the Board may not look favourably on the City's lack of evidence and there is a possibility that costs may be awarded against the City. It is also acknowledged that there may be some cases of a more minor nature where a lack of planning evidence may not be fatal to the City's case.

Traditionally, the local municipalities have provided funding in their legal department budgets to retain external consultants to provide evidence at Ontario Municipal Board hearings in situations where City staff were unable to support Council's position. The amalgamated Legal Division's budget does not have sufficient funds to cover such expenses if it is, at the same time, to achieve the Council mandated expenditure targets for this year. Should Council wish to retain external consultants in such circumstances, it is recommended that Council specifically instruct the City Solicitor, on a case by case basis, to retain such external consultants as required with funding to be made available from the Corporate Contingency Account.

Conclusion:

It is appropriate to standardize, clarify and confirm the City Solicitor's instructions with respect to Ontario Municipal Board hearings and the retention of outside consultants as set out in this report.

Contact Name:

Ms. Anna Kinastowski, Director, Planning and Administrative Tribunal Law, 392-0080. Fax:392-0024.

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Councillor John Adams, Midtown, appeared before the Urban Environment and Development Committee in connection with the foregoing matter.

(City Council on October 1 and 2, 1998, had before it, during consideration of the foregoing Clause, the following joint report (September 30, 1998) from the Commissioner of Corporate Services and the City Solicitor:

Purpose:

To provide information with respect to funds allocated in the former Cities of Toronto, Scarborough, North York and Etobicoke legal departments budgets for the retention of expert witnesses for Ontario Municipal Board hearings, and to recommend a budget location for these funds in the amalgamated City operating budget.

Funding Sources, Financial Implications and Impact Statement:

Traditionally, the former Cities of Toronto, Scarborough, North York and Etobicoke provided funding in their legal departments budgets to retain external consultants to provide evidence at Ontario Municipal Board hearings in situations where City staff were unable to support Council's position. The former legal departments of Metro, East York, and York requested funding from Corporate Reserve accounts in these circumstances. The amalgamated Legal Division's budget does not have sufficient funds to cover such expenses for the balance of the year if it is at the same time to achieve the Council mandated expenditure targets for the same period.

Recommendation:

It is recommended that this report be referred to the Budget Committee for review.

Council Reference/Background/History:

The Urban Environment and Development Committee considered at its meeting on September 8, 1998, a report from the City Solicitor entitled "Ontario Municipal Board Hearings" (August 25, 1998). The report in part discussed the issue of retaining external consultants for Ontario Municipal Board hearings. The City Solicitor advised that while the former Cities of Toronto, Scarborough and North York had funding in their legal department budgets to retain expert planners, the amalgamated Legal Division's budget does not have sufficient funds to cover such expenses for the balance of this year.

The Committee recommended:

(1)to Council:

(a)the adoption of the aforementioned report; and

(b)that the City Solicitor be requested to include in the 1999 Operating Budget for the Legal Division sufficient funds to retain any expert witnesses required for Ontario Municipal Board hearings; and

(2)requested the City Solicitor, in consultation with the Chief Financial Officer and Treasurer, to submit a report directly to Council, for consideration with this matter on October 1, 1998:

(a)providing a breakdown of the funding which was allocated by each of the former Area Municipalities for retention of any expert witnesses required for Ontario Municipal Board hearings; and

(b)specifying whether funding for this purpose was requested in the Legal Division's 1998 Operating Budget and what funding, if any, was approved.

Comments and/or Discussion and/or Justification:

Current Funding and Budget Pressures

The table below indicates funds allocated in the 1998 operating budgets of the former municipal legal departments for the retention of expert planners in addition to known commitments to date.

¹Etobicoke did not categorize its legal budget. The firm it retained expended expert planners and witnesses as disbursements in its regular billings.

While currently there is a favourable variance in this account, this information must be reviewed in the context of the Division's overall budget position and serious anticipated budget pressures:

(i)The Division was requested to reduce salaries in a 9 month period by $1,114,000.00. The Division will achieve this target.

(ii)The Division was requested to reduce its reliance on outside counsel in 1998 by $1,646,000.00. While the Division is still accounting for the extent of its liabilities for work already out sourced, we are forecasting that one of the external firms will exceed their retainer in the magnitude of 10 percent.

(iii)The approved budget included an assumption for increased revenues ($255,000.00) related to a surcharge for Planning and Development fees. Council, at its meeting on April 16, 1998 adopted a surcharge of 7.5 percent. To date, the Division has not seen any revenue related to this surcharge. The Finance Department is reviewing whether the former Cities are in fact collecting this surcharge, and the value of revenues to date. Finance is monitoring this process to ensure that these monies flow to the Legal Division.

It is projected that any further discretionary spending, which includes the retention of expert planners, would result in an overexpenditure position at year end for the Division.

Planning Applications:

There is no way to estimate from year to year the number of times Council and staff will be at odds on planning applications. Certainly the magnitude and complexity of the applications will vary as will the cost to retain experts for a particular matter. To date we have had funding for expert planners ranging from $8,000.00 to $150,000.00. The Legal Division does not have the flexibility in its budget to absorb such dramatic expenditure fluctuations. As the Legal Division's budget is 78 percent salaries, and more than 10 percent in recoverable costs on a gross basis, there is very little discretionary spending. Staff reductions become the only redress.

Conclusions:

It is impossible to estimate the number of occasions that Council will request expert planners be retained to attend OMB hearings. As the costs associated with the experts is tied to the size and complexity of the planning application, there is no way to estimate a year in advance funding requirements. The Finance Department is working with the Legal Division to develop a policy to set up a reserve account to address in year funding requirements that exceed the approved budget. Underexpenditures in the "expert planner" line item would flow to the reserve account at year end rather than Corporate Sundry Revenue. This account would be available in later years for overexpenditures without the requirement to draw from Corporate Contingency. This, however, does not address the Division's immediate budget pressures. It is projected that any additional discretionary expenditures anywhere in the Legal Division's budget this year will result in an overexpenditure position at year end.

The Chief Financial Officer and Treasurer has been consulted on this report.

Contact Name:

Natalie EarlyVal Sequeira

Manager, Administration - Legal DivisionManager, Budget Services

Telephone: 392-8044Corporate Services & Finance

Fax: 397-5624Telephone: 397-4225

Fax: 392-3649.)