The OMB today confirmed that the Board's Rules of Practice and Procedure allows, in certain defined circumstances, an appeal by a third party against an OMB decision.

Information that I relied on earlier - posted on the OMB website - stated categorically that third party appeals were not possible. That is obviously incorrect.

I now intend to press ahead with my appeal against the OMB decision on Glenway.

Here is the exchange of emails:

On 28 November 2014 I wrote to the OMB asking for clarification on third party rights of appeal.

Mr Kondinski

I am sorry to have to trouble you again about my proposed appeal against the Board’s decision on Glenway.

When I contacted you earlier, I relied on the Information Sheet 3 that appears on the Board’s website. It reads:

Can the Board turn down the request for a review?
The OMB will turn down your request if:
A non-party makes the request.

A paper copy of Information Sheet 3 (which I have in front of me as I type this) reads

Can the Board turn down the request for a review?
The OMB may turn down your request if:
A non-party makes the request.

Clearly, Information Sheet 3 was amended at some point to insert “will” for “may” after OMB.

And yet the Board’s Rules of Practice and Procedure, to which you refer me, make it clear that in certain defined circumstances a third party can appeal for a review of a Board decision.

For ease of reference I have pasted the rules below from the OMB website.

In 113 (b) the Chair can determine if there was a valid and well-founded reason why the requester was not a party. I am not a member of the Glenway Preservation Association and I do not live in Glenway. There is very little likelihood that I could have received Party status.

In rule 115 (on which I rely) the Chair can exercise discretion to allow a review if the Board

(d) heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or

(e) should consider evidence which was not available at the time of the hearing, but that is credible and could have affected the result.

I am minded once more to seek a review of the Glenway decision but, before I do so, I wonder if you could take advice and let me know that the rules you pointed me to still stand and have not been amended to exclude non-parties from appealing a decision.

I am out of the country next week but am mindful that the clock is ticking. So an early response would be very much appreciated.

Gordon Prentice

And here is an extract from the relevant OMB rules of procedure:

REVIEW OF A BOARD DECISION OR ORDER 

110. Board’s Powers on Review When exercising its powers pursuant to Section 43 of the Ontario Municipal Board Act and Section 21.2 of the Statutory Powers Procedure Act, Rules 110-119 shall govern.

111. Request for Review of Board Decision The Chair shall consider a person’s request for a review of a decision, approval, or order if the person files the information set out in Rule 112. A request for review does not automatically stay the effect of the original decision, approval or order unless the Chair so orders.

112. Contents of a Request A party making a request for review shall file notice of such request with the Chair within 30 days of the date of the Board’s written decision. Such notice shall include:
(a) the requestor’s full name, address, telephone, fax number, and e-mail address (if any);
(b) the full name, address, telephone and fax number and e-mail address (if any) of the requestor’s representative (if any);
(c) the requestor’s or representative’s signature;
(d) the reasons for the request;
(e) the desired result of the review (such as a change or alteration to the decision or a rehearing of the proceeding);
(f) any documents that support the request, including copies of any new evidence that was unavailable at the hearing;
(g) an affidavit stating the facts relied upon in support of the request;
(h) a statement as to whether the requestor has or will submit an application for leave to appeal or judicial review to the court; and
(i) the prescribed filing fee (cheque or money order payable to the Minister of Finance).

113. Initial Screening of the Request The Board will not consider a request for review:
(a) the request does not include the information required by Rule 112;
(b) the request is made by a non-party unless the Chair determines that there is a valid and well-founded reason why the requestor was not a party;
(c) the request is filed 30 days after the date of the Board’s written decision unless the Chair determines that there is a valid and well-founded reason to extend this time; or
(d) it is a second request by the same party raising the same or similar issues.

114. Filing and Serving a Response to a Request for Review A party that files a request for review may be directed by the Board to serve the request and all supporting material on all other parties to the original hearing event. The Board may require any or all other parties to provide, by a specific date, a response to the request. The Board may identify the issues to address in the response. The response to a request for review shall include the reasons for the response, any supporting documents, and an affidavit stating the facts relied upon in the response. The response shall be served on the other parties and filed with the Chair.

115. Power of the Chair to Dispose of the Request Subject to Rule 115.01, the Chair may exercise his/her discretion to grant a request for review, in whole or in part, and may order a rehearing of the proceeding or order a motion be heard to review a decision. In the event the - 24 - request for review is granted, the Board will set a hearing date or a motion date (as applicable) and will notify all of the parties and provide direction for notice. The Chair may assign a different Member or panel to conduct the rehearing or motion to review. The Chair may also dismiss the request, in which case the decision, approval or order remains in force and effect. 

115.01 The Exercise of the Chair’s Discretion The Chair may exercise his/her discretion and grant a request and order either a rehearing of the proceeding or a motion to review the decision only if the Chair is satisfied that the request for review raises a convincing and compelling case that the Board:
(a) acted outside its jurisdiction;
(b) violated the rules of natural justice or procedural fairness, including those against bias;
(c) made an error of law or fact such that the Board would likely have reached a different decision;
(d) heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
(e) should consider evidence which was not available at the time of the hearing, but that is credible and could have affected the result.

116. The Motion to Review. A Board Member or panel assigned by the Chair to conduct a motion to review may, after receiving submissions from the parties, order a rehearing of all or part of the proceeding only if satisfied that the request raises a convincing and compelling case in respect of one or more of the issues set out in clauses a) to e), inclusive, of Rule 115.01. Should the Board Member or panel that conducts the motion determine that the requestor has not satisfied this requirement, then the request shall be dismissed and the decision, approval or order that is the subject of the request shall remain in force and effect.

117. Procedure on Motion The Board’s Rules on Motions generally apply to a motion to review unless the Board directs otherwise.

118. The Review Hearing The Board Member or panel that conducts the review hearing shall rehear the application, in whole or in part, as either directed by the Chair or the decision arising from the motion to review, and may review, rescind, change, alter or vary any decision, approval or order made by the Board.

119. The Chair May Initiate a Request The Chair may initiate a Request for Review and exercise his/her discretion under Rule 115.01 upon notice with reasons to all parties to a proceeding and within a reasonable time after the Board decision, approval or order is made.

And on 2 December 2014, the OMB's Glenway case co-ordinator, Tome Kondinski, wrote

Mr. Prentice,

I am not in a position to further expound or interpret the Ontario Municipal Board's (the "Board") Rules of Practice and Procedure. Neither am I in a position to give advice as the Board is not permitted to provide advice.

As for Rule 113(b), I am not in a position to assess or determine an individual's and/or an entity's qualification criteria for party status, especially after a matter has been adjudicated. Neither am I in a position to make the determination as to whether there is a valid and well-founded reason why a requestor was not a party and whether the requestor therefore qualifies to make a request for a review of a Board Decision. Should you have any further questions or require any direction in the foregoing, you are to seek your own advice.

I would however like to conclude that in all other respects, the Board's Rules of Practice and Procedure still stand as currently constituted.

Add comment


Security code
Refresh