The Slessor Residents’ Group has decided not to ask for “Party” status at the pre hearing on Friday 30 November.
This is a big mistake.
A leading light in the five strong residents’ group, Bob Bahlieda, knows the Slessor application inside out. His forensic skills can lay bare inconsistencies and errors in the most densely argued case.
Other members of the group bring with them detailed knowledge of the Slessor application in all its forms, as it has mutated over the months.
The Town’s Planning Department has consulted the group from the outset, believing it represents the views of residents. And tri-partite meetings have been held with the developers so the group knows the nuts and bolts of the application in a way that no-one else does.
Given all this, it seems to me inconceivable that the OMB Adjudicator would refuse a request from the Slessor Residents’ Group for Party status.
I can’t see the Town of Newmarket objecting.
The developers, quite possibly.
They want to convince us that their sky high development is just the tonic that Newmarket needs.
But, ultimately, the decision will be for the OMB panel member adjudicating.
The Slessor Residents’ Group say they are content with Participant status. Their lead spokesperson, Anna O’Rourke, explains:
(1) There is little to be gained by our group (in going for Party status). Party status requires full time commitment to attend and participate in the hearings which could last up to four weeks.
(2) We also have few witnesses to call and cross-examination would only rehash the same disagreements we have had with the project already and allow them to attack them through cross-examination.
(3) We also have no legal standing at the OMB but must use our moral arguments to oppose the project. Party status leaves us open to having our position undermined. Expert witnesses at the hearing will be prepped by their legal team. We have no expertise in being witnesses.
(4) In contrast, the role of participant allows us to fully present our case while not having the OMB distracted by cross examination or by throwing us off our message. We will still make all the same points as we would being a party but without the distraction of cross examination and the potential that we say something that will prejudice our case. Given our limited resources the role of participant is a more preferred strategy that lets us control our message.
The Slessor Residents’ Group don’t need to pretend to be something they are not. They are not Bay Street lawyers or planning professionals. They are concerned citizens. No more and no less. And they don’t need to be frightened of their own shadow.
As Participants, they will get one kick at the ball and then they are off the field and are spectators again. Those with Party status are key players throughout.
I hope it is not too late for the group to reconsider.
So what are the pros and cons of going for Party status?
(1) The Group would be giving voice to a large number of local people who object strongly to the Slessor development. There is no other group that purports to represent the views of local people on the Slessor development.
(2) It doesn’t cost anything to become a party – other than in terms of time. (And, yes, that is a big deal.)
(3) Parties do not need to be “experts” or be legally represented. They just need to be able to speak on their own behalf and present their evidence to the hearing. In the pool of 23 OMB adjudicators there are “lawyers, former elected officials, engineers, surveyors, planners and public administrators.”
(4) Parties can cross examine if they choose. In the course of the OMB hearing, the developers may make statements that cry out to be challenged.
(5) Crucially, Parties can ask the OMB to help broker an agreement. The OMB says it may try to settle disputes or reduce the number of issues at a hearing by bringing parties together informally through mediation. Those with participant status are expressly excluded from the process. The Slessor Residents' Group would be in on any mediation talks.
(1) There would be a major investment in time, not necessarily money. There would be modest photocopying costs and so on.
(2) The bona fides of the Slessor Residents’ Group could be challenged. Are the spokespeople elected or self appointed? Is there a membership? And do they meet and vote on positions?
(3) It is too big a burden for a single individual to be expected to carry.
(4) Anything that needs to be said at the hearing can be said as a participant.
(5) Being cross examined by smart silver tongued lawyers wouldn’t be much fun and the Group might look foolish or unprepared, or both.
An unincorporated body such as the Slessor Residents’ Group has a major hurdle to overcome (point 3 above) when going for Party status.
The OMB rules say “if an unincorporated group wishes to become a party, the group must appoint one person to speak for it. The person appointed must accept the responsibilities of a party.”
That means being present throughout the OMB hearing. And that’s a big commitment.
One way around this is for a community/residents group to become incorporated. There are special rules for non profit organisations and incorporation can be quick and relatively straightforward. And it doesn’t cost much.
This is what the Glenway Preservation Association has done.
The Glenway people say incorporation ensures “appropriate governance and accountability”.
Maybe the Slessor Residents’ Group should take steps to become incorporated. If it's not too late.
I’d vote for that.
The OMB guide explains how the system works:
“Parties take part in the hearing by exchanging documents, presenting evidence, questioning witnesses and making submissions to the Board. Parties may also request costs, adjournments or a review of the decision.”
How to become a Party
(1) Submit your request in writing to the Board, and provide a copy of your request to the other parties
(2) Be at the first day of hearings, at the start time. If you are not there you may be denied party status.
(3) At the beginning of the hearing, the Board member asks if anyone wishes to become a party to the matter. You may stand up and ask to be added as a party.
(4) Give the Board member your name and address for the record.
(5) Explain why you wish to be added as a party. After explaining your position, the Member will ask if any of the other parties object to to you being added.
(6) The other parties may agree or disagree to adding you as a party.
(7) The Board Member decides if you will be added as a party.
A Participant is a person or organisation that participates by making a statement to the Board on some or all of the issues at a hearing. A participant may attend all or only part of the proceedings. Participants are not required to make submissions to council before becoming involved in an OMB matter.
When making a statement to the Board, participants must swear to tell the truth. They may be questioned by the Board and other parties. Participants generally do not question witnesses and cannot ask for costs, adjournments or request a review of the decision.
How to become a participant:
(1) Be at the first day of the hearing, at the start time. If you are not there you may be denied participant status.
(2) At the beginning of the hearing, the Board Member asks if anyone wishes to become a party or a participant. At that time you may stand up and ask to be a participant.
(3) Give the Board Member your name and address for the record.
The Member will set aside time during the hearing for participant statements. Usually statements are scheduled at the end of a hearing. During a longer hearing, the Board may set a different time for participant statements so participants do not have to sit through the entire hearing.
Click on this link http://www.omb.gov.on.ca/english/home.html to access the OMB’s website.
· http://www.omb.gov.on.ca/english/FrequentlyAskedQuestions/faq.html (“Frequently Asked Questions”)
· http://www.omb.gov.on.ca/stellent/groups/public/@abcs/@www/@omb/documents/webasset/ec081184.pdf (“Guide to the Ontario Municipal Board”)
· http://www.omb.gov.on.ca/english/InformationSheets/index.htm (“Information Sheets”)