The OMB, a farce or something more?

The Ontario Municipal Board (OMB) is an independent administrative board, operated as an adjudicative tribunal in the province of Ontario, Canada. Sounds impressive, very formal and somewhat reassuring until the facade is torn away and its true reality revealed for what it is.

As an independent administrative board it hears applications and appeals on municipal and planning disputes under the Planning Act, as well as issues related to other legislative acts such as the Expropriations Act, Municipal Act and the Ontario Heritage Act.

Originally the OMB found life in 1897 as the Ontario Railway and Municipal Board assuming its current name in 1932, making it one of the oldest tribunals in the province of Ontario. The OMB itself is governed by the Ontario Municipal Board Act and since 2012 has reported to the Ministry of the Attorney General.

Standing on its own the OMB has jurisdictional powers legislated by the Ontario Municipal Board Act to act as an adjudicative tribunal. Quoting from the OMB Act, “The Board has all the powers of a court of record and shall have an official seal which shall be judicially noticed,” makes one feel even more impressed at the authority of the OMB. Through the OMB Act it is granted exclusive jurisdiction over the domain in which it operates and (quoting the Act itself again), “has authority to hear and determine all questions of law or of fact.”

Members and appointees to the OMB are responsible for the adjudication of disputes between parties appearing before the Board pursuant to the governing Act. Certain skills and abilities are therefore required from appointees such as the ability to listen and communicate clearly and effectively, the ability to objectively and fairly assess cases involving difficult issues. Each member of the OMB must have an understanding of the justice system and the role of administrative tribunals in that system. For such impressive understanding and ability members are paid a pretty penny ranging between $102,264.60 through to $178,412.26 annually, plus perks.

One expects that at least there is an avenue where serious issues regarding municipalities and their hand-in-hand partnership with developers can be questioned without bias. The cost of making an appeal to the OMB is not small and it is done so with only one real motivation, the overall benefit of the community. Now is the time to put the brakes on all the fantasy, bring it to a screeching stop and look at the reality of the OMB and its true reason for existence.

After one controversial decision in Manotick, Ontario, the Minister for Municipal Affairs at the time Jim Watson, was quoted in the local press as stating, “has the OMB been perfect? No. Can it improve? Yes, I think it can and I am quite prepared to work with the attorney general to try and ensure that the OMB is more reflective of community values.” (Ontario Municipal Board, Wikipedia).

Controversy has followed the OMB and its decisions. After the explosion of facts surrounding the whole gas plant fiasco and the Ontario Liberal Party, the footprints of the OMB were equally scrutinised. Yet one alarming example of how the OMB cares for the law or a community and its values comes from a hearing and the final decision in St. Catharines, Ontario.

The application for amendments to planning and zoning in themselves are not extraordinary, an almost daily occurrence in Ontario. What was extraordinary were circumstances surrounding the applications. The applicant had breached the Planning Act and Zoning By-Laws for over five years. Owner and operator Sam Demita of Sun Collision on Merritt Street, St.Catharines had acted with contempt of the law and with full knowledge of the City government.

Mayor Brian McMullan was fully aware of the breaches of law by Sam Demita. Merritton Ward Councillor Jeff Burch stood before a council meeting on April 29^th 2013 and intentionally lied to council to protect Sam Demita. Director of Planning and Development Services James Riddell was not only fully aware of Sam Demita's breach of legislation he had stated that fact in the Corporate Report dated April 3^rd 2013 on page 11. No action had been taken against Sam Demita by the City for his continuous breach of legislated law for some five years or more.

The OMB sent M.C. Denhez to hear the appeal, OMB Case No: PL130730 and File No: PL130735. Mr. M.C. Denhez arrived with an air of arrogance equivalent to a judge. He had all the documents from both sides and therefore ample opportunity to review the details. To repeat the words quoted from the Ontario Municipal Board Act, “has authority to hear and determine all questions of law and of fact.” According to the requirements sought in all appointees to the board, members must have an understanding of the justice system. Mr. M.C. Denhez, a member of the Ontario Municipal Board hearing an official appeal, brought the house down with these words in the opening moments: 

“Um, you do understand that in the 107 year history of the Ontario Municipal Board, there have been countless instances where a proposal came forward that was as pure as the driven snow. We're supposed to look at it in terms of this thing, the Planning Act, and we have what Provincial Government in its infinite wisdom calls 'a policy led planning system'. So we are supposed to assess everything in terms of what those policies are. And sometimes even when the background to the whole thing has been absolutely pristine, it's been dumped as illogical, and we're still obliged to turn it down. Inversely, there have been many times in the 107 year history of this thing that the proposal that has come forward has a background that smells to high hell. And yet somehow in terms of the policies that we're guided by, they still stumbled into the correct solution. All of which to say, we have to be very careful in looking at the background of all of this because we supposed to look at it on a go forward basis, in terms of the policies for the future, does this still fit? So I just leave that with you, if we do wind up getting into a long discussion of history I am, I may be obliged to cut it off at some point. Because that's not what we're really supposed to be here about, we're really supposed to be here about does this fit policy framework that has been imposed by the provincial government.”

Who is M.C. Denhez of the OMB? According to a biography published for OMB members (Public Appointments Secretariat, Canada, Agency Members Biographies), “Marc Denhez, is a bilingual lawyer, mediator and author of eight books on planning related issues, including environment and heritage.” It further states that “He has advised on legal policy, governance and drafting on related topics, in ten provinces, over a dozen countries, and at UNESCO.” It finishes by listing some of the organisations who had bestowed awards upon M.C. Denhez, such as the Canadian Institute of Planners, the Canadian Home Builders Association, Environment Canada and the International Association of Business Communicators. For a relatively short bio crammed with such impressive accolades it was expected to see the eight books authored by M.C. Denhez listed by title.

A lawyer of over 30 years, author of books, adviser on legal policy and recipient of awards, displayed nothing more than arrogant disregard for the law with his words, his own words. In fact reading the biographies of other members of the OMB and noticing how many have had environmental studies listed as an attribute should leave a warm and cozy feeling of security, but then there is the coal plant fiasco and then there is St. Catharines. Fantasy was fun whilst it lasted.

The issues surrounding this property had been extensively examined in previous articles. It is enough to state that Sam Demita had been found in breach of Ontario Regulation #347 by burying asphalt and other hazardous waste material. Planning and zoning by-laws had been simply ignored as non-existent by Demita. So M.C. Denhez came to “stumble into the correct solution,” by refusing to deal with the past and deciding that facts and laws were irrelevant.

On November 29^th 2013, the OMB issued a decision delivered by M.C. Denhez. Six pages long with 26 individual points the decision was to dismiss the appeal and allow the law to be 'fixed' for Sam Demita by the City of St. Catharines. Point 5 states: “Though the neighbour argued eloquently, his appeal is dismissed. The background and reasons are outlined below.” In the final analysis M.C. Denhez made it clear that as a representative of the OMB and under their policies no history was relevant. What the City had adopted as the Official Plan Amendment (via By-Law 2013-138) and the rezoning (By-Law 138-39) was approved by 'the Board'.

Now under the Official Plan designation and zoning of the northwest corner (abutting the railway tracks and Sun Collision), which the city named 'area B', it was authorised for car storage. The rest of the area was zoned as “Mixed Use” and removed from EPA (Environmental Protection Area) to Commercial-Residential. City's Official Plan designation for 'Mixed Use' excluded car storage and in this case only the northwest corner was rezoned for that purpose. Everything was fixed and the past was wiped clean. “The Board was satisfied that they met the requirements of the public interest. The Board was also satisfied that the OPA and rezoning met statutory requirements.”

A smile as big as that of the Cheshire Cat sat on the face of M.C. Denhez at the solution he reached. The City only snickered in a self-satisfied air of continued corruption. Now it is time to view the result. Since the law was 'fixed' for Sam Demita he in his arrogance has taken the new law and urinated with contempt at it. Dated photographs taken over several months show that car storage is in fact spread over the whole length of the property.

In accordance with the amendments approved by the city and given blessing by the OMB and M.C. Denhez only the northwest corner (the city called this area B) was authorised for car storage. Wrecked and damaged vehicles have been stored across the opposite side of the yard adjacent and parallel to the Merritt Street fence line. This is Area A according to the city map as shown on page 11 of 15 of the Corporate Report from Planning & Development Services dated April 3^rd 2013, report #PDS-103-2013. James N. Riddell Director of Planning and Development Services approved the report submitted by Judy Pihach Manager of Planning Development Services.

After M.C. Denhez issued his report in November 2013 Sam Demita undertook some cleaning of the land. Massive amounts of debris was removed, a piece of machinery called a Wylie 300 which is used to grind large chunks of asphalt to create asphalt aggregate has since been removed. Large deposits of asphalt illegally stored on the property in contravention of Ontario Regulation #347 had now been ground down to aggregate form. Several large mountains of aggregate asphalt and the newly ground asphalt had been moved out of sight to the very end of the property and hidden from view by portable storage units. Illegally stored asphalt in breach of Ontario Regulation #347 which permits the storage of asphalt for only 120 days for constructions purposes, had been stored by Sam Demita for well over 18 months!

Huge amounts of illegally stored asphalt had been intentionally kept on the property by Sam Demita knowingly in breach of law. M.C. Denhez brags in his biography of writing books on issues including environment, and receiving awards from Environment Canada. At the hearing he said, “why would I need to know where the fill came from?” Also at the hearing he was provided with direct evidence of the illegally stored asphalt. Yet all of this had no bearing on M.C. Denhez. He did not care about “a background that smells to high hell,” he claimed to care only for the future. This is the future M.C. Denhez made possible.

The City of St. Catharines implemented a new Zoning Plan in late 2013, it was supposed to make zoning issues easy to understand and presumably comply with. On page 38 of the Zoning Plan, section 6 Commercial Zone, sub-section 3.2 it states, “Outdoor storage is not permitted in any Commercial Zone, except for Motor Vehicle Sales/Rental Service Centre.” Sam Demita operates and owns Sun Collision, this is rather plain and simple to understand as far as the nature of the business. It is not a collision / sales / repairs / rental / anything I want / anytime I want it. Nor does Sun Collision constitute mini portable storage units with a slogan, you store it, I store it and I don't ask or care. City of St. Catharines Zoning Plan section 6 sub-section 3.2 is plain and clear.

In the Corporate Report of April 2013 approved by James N. Riddell Director of Planning and Development Services it states on page 9 of 15, “Staff note that the existing use of the site for outdoor storage is not consistent with the proposed amendments. Staff will be pursuing enforcement of the Zoning By-law, once the proposed amendment takes place.” Now that the by-law has been fixed to suit Sam Demita and Sam Demita has proven once again his contempt for the law what is the Director of Planning and Development Services to say?

At the Board hearing Nicole Auty, City Solicitor for St. Catharines was present. M.C. Denhez had suggested that a discussion may be worthwhile between the parties. Issues of evidence and the fact that the city only claims that enforcement will be undertaken after the amendments pass were to be topics. The appellant said, “I have to say this, that rarely does the law matter because otherwise you wouldn't have said it.” City Solicitor Nicole Auty became all hurt and angry responding with, “I take objection to that, it matters quite a lot to me.”

Nicole Auty continued to say that, “...how we deal with compliance issues, if we're advised that there are compliance issues, we speak to the owner and we seek compliance and one way that we do that is to require an amendment to the Official Plan, and in this case the zoning by-law, to designate an area where this is permitted. And when that by-law is in place, that's where it has to take place. Uses of that other space need to be confined to that area, and if they're not and the City does take steps and would take steps accordingly to deal with it.”

Since the laws were 'fixed' for Sam Demita in late 2013, Demita had decided to ignore them. Wrecked vehicles had been parked on the opposite side of the yard, vehicles have covered the full length of the yard, asphalt aggregate moved to another position in the yard and storage containers still are placed on nearly a third of the yard. Councillor Jeff Burch lied in Council to cover up the facts, now a question begs answering by Councillor Jeff Burch. What are you willing to do for Sam Demita now?

The City through the Director for Planning and Development Services James Riddell, City Solicitor Nicole Auty, Mayor Brian McMullan and Councillor Jeff Burch, together with OMB Member M.C. Denhez had facilitated the conditions for the continuing breach of law. When will the law be enforced or has Sam Demita been given permission to do as he pleases at whatever cost? It is time James Riddell kept to his word as presented in the City's report. It is also time for Nicole Auty as City Solicitor to stop playing at being hurt and act true to her sworn oath.

Photographs again proved intentional breach of the laws that anyone else has to abide by. At the OMB hearing the issue of photographs was a key to evidence, at one point as Demita tried to make claims regarding the asphalt photographs were produced to prove the truth. Sam Demita said, “Do not step into my property and take photos from now on.” No photos had ever been taken from within the property grounds, all photos had been taken from outside the fence and that can be clearly seen. This was stated to Demita who responded “Don't,” and then again, “You won't either.” The threat was uttered in front of the City Solicitor Nicole Auty and others.

In this case a business operator breached the law and legislation for some five years. A City Councillor, Jeff Burch, lied to council to protect him. Mayor Brian McMullan as Head of Council facilitated that lie. The City then fixed new laws to suit this businessman, and a member of the OMB decided that all past breaches of law were irrelevant. Provincial policy is a 'go forward' policy regardless of the past. The OMB decision was to give blessing to the fixed new laws.

Now the businessman has proven even greater contempt for the law. He as openly and willingly breached the laws that had been fixed for him. What will M.C. Denhez say to this situation now? Both Jim Riddell, Director of Planning and Development Services and Nicole Auty, City Solicitor have been advised of the situation with photos provided, as has M.C. Denhez of the OMB.

A final analysis leaves one unanswered question. What is the real purpose of the OMB? Is it a farce or is it something else? The rhetoric of Member M.C. Denhez fades into oblivion in light of fact. Ministers and the Attorney General may agree that the OMB is not perfect and that improvement must be sought. Here in St. Catharines the OMB in its policy driven decision process facilitated lies and breach of law. Perfection is a utopian fantasy, accountability is not. To quote M.C. Denhez once more “...somehow in terms of the policies that we're guided by, they still stumbled into the correct solution.” Did they really?

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