Dear editor:

There have been many recent letters and discussions on the advisability of allowing the Ontario Land Tribunal the opportunity to decide the fate of a proposed development.

There is no doubt that when the staff makes a positive recommendation for development and then council refuses the requested official plan or zoning bylaw amendment, the odds of council winning in front of the Ontario Land Tribunal are minimal.

Why is that and what can be done about it?

Who is in charge of the proceedings before the tribunal? As a lawyer with many years of experience in front of courts and tribunals, I can assert that the positive co-operation of the client is a crucial requirement for success.

The client provides the lawyer with the essential facts. The client can and often does instruct the lawyer on what facts should or should not be raised in front of the tribunal.

One of the very few requirements imposed by law on the Ontario Land Tribunal is that the proceedings and the decision be “fair.” What is fair can only be decided if the relevant facts are before the tribunal.

In February, I sat through three days of hearing before the tribunal on the 723 King St. project. Council had received many submissions objecting to the project but most of the objections were not raised before the tribunal.

These included (among others) the fact that among the amendments to the official plan requested by the developer from the Ontario Land Tribunal, there were three crucial amendments which had not previously been requested of the council, and thus, had never been the subject of a public meeting as specifically required by the Ontario Planning Act.

We will never know whether any of these facts would have made a difference in the decision. There is certainly an argument to be made that by not raising any of these facts, the tribunal had a rather one-sided picture of the situation.

The lawyer for the town is selected and instructed by staff. The discussions between the lawyer and the town are through the staff. The person on the staff who has the most information is the planner who made the recommendation to accept the project.

Is this not an evident conflict?

In the case of the project at 723 King St., the developer called the town planner as a witness and nothing this witness said was contradicted by the town lawyer.

Further, the town lawyer accepted that the town planner be declared an independent expert and that the report prepared by staff for council be filed as an expert’s report.

Clearly, the staff member (who had proposed the acceptance of the project to council) has at least a bias to defend that staff report before the Ontario Land Tribunal, even though council had not followed the recommendation.

So, who actually represented the council, who gave the “relevant facts” and instructions to the town lawyer?

The current setup of council is such that no one member has a specific responsibility for overseeing the performance of staff.

If the responsibility for the success of the proceeding in front of the Ontario Land Tribunal remains in the hands of the person who had made the recommendation which was rejected by council, the town has very little chance of ever winning in front of the OLT (unless huge funds and time are expensed by organizations like SORE).

Instead of just giving up fighting for our official plan, maybe council should devote some time to consider how best to defend the town’s interests before the tribunal.

Endre Mécs
Old Town