Replay – LiveBlog: Ontario Municipal Board Pre-hearing Ward Boundary Review

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Joey Coleman/The Public Record

The Dundas Town Hall OMB Hearing Room, photo from day prior to the hearing

The Ontario Municipal Board is hearing an appeal registered by two citizens against Council’s gerrymandering of Ward Boundaries. This is a pre-hearing, which serves to identify parties, issues, and set dates for the full hearing.

Some key terms and people in this hearing.

OMB panel

The Ontario Municipal Board (OMB) members deciding this case are Dr. Bruce Krushelnicki and Paula Boutis. Krushelnicki is the Executive Chairman of the Environmental and Land Tribunals of Ontario, and is therefore the highest ranking member of the OMB.

City of Hamilton Legal Counsel

City Council retained outside legal counsel for the hearing as the Council voted to not accept the recommendations of professional experts Watson & Associates, instead creating their own boundaries as a Council.

The outside Counsel for the Council are Steven Ferri, partner at Loopstra Nixon LLP, and Cindy Yi, as associate at the firm.

Applicants

Two private citizens have appealed the Council’s new self-created ward boundaries.

Mark Richardson is being represented in the hearing by Hamilton lawyer Craig Burley, who is working on the case pro-bono.

Robert Dobrucki is self-representing, a member of the Law Society of Upper Canada, and a lawyer by trade, he is appealing as a private citizen. (Dobrucki was a guest on The Public Record Radio Show in October 2016 on the topic of ward boundaries)

Joey Coleman August 3, 201710:10

Hearing is underway, with people stepping forth to be participants in the hearing.

Joey Coleman August 3, 201710:13

Ward 8 Councillor Terry Whitehead is present with his staff. He has brought six residents of Ward 8 to seek participant status, as well, his staff are representing further people as well.
Whitehead’s Executive Assistant is also representing four neighbourhood associations “surrounding the Mohawk College”
As well, the Gourley Neighbourhood Association is now registered.

Joey Coleman August 3, 201710:16

Registering as well are: Maureen Wilson, Matt Jelly, Rob Fiedler, Mike Borrelli on behalf of the Beasley Neighbourhood Association, Don McLean (representing himself), Peter Hutton.

Joey Coleman August 3, 201710:23

Hearing Chair now trying to set dates and issues.
The City’s lawyer says they need more time to set the issues, say they believe the parties are close to agreeing on the issues.
OMB is looking at 8 days for the hearing. Hoping to hold hearing in October.
OMB must make a ruling before December 31, 2017 to be in effect for the next election.

Joey Coleman August 3, 201710:25

OMB hearing Chair is very mindful of the need for them to conduct hearing and make decision before end of 2017.
The City’s lawyer says they will need five days to argue the City’s case.
Craig Burley, counsel for appealant Mark Richardson, says he will need one day to argue his case. He will issue summons to a staff member of Watson & Associates.
Burley says he will call a witness from Wards 7 & 8 to address their underrepresentation.

Joey Coleman August 3, 201710:26

City’s lawyer argues that arguing the Councillors’ self-interest and “self-dealing” on setting Ward Boundaries is “bad faith” by the appealant, and is arguing against allowing this issue to be raised.

Joey Coleman August 3, 201710:30

Rob Dobrucki, who is an appealant who is self-representing, says he will call himself and one witness.

Joey Coleman August 3, 201710:32

OMB wants to start October 16, City Lawyer isn’t available that day because he is speaking at a conference.
OMB proposes starting earlier, October 3 or 10.
OMB Chair “I don’t want it to go any later than mid-November because we have to write our decision before the end of the year.”

Joey Coleman August 3, 201710:37

Between the three parties, they are trying to find eight hearing dates.
City lawyer is showing good faith in offering to argue his motion to strike argument about Councillor’s motivations in passing their own ward boundaries at a separate earlier hearing date.
Looking at the week of September 18th for the arguments on if Council motivations can be entered.

Joey Coleman August 3, 201710:40

OMB Chair is confirming availability for a September 18th motion hearing, one day only, for the City’s counsel to argue against allowing Burley/Richardson to argue Council acted in bad faith.
OMB Chair explains to public they’ll have a hearing to decide “an issue with represent to what the issues will be”

Joey Coleman August 3, 201710:41

MOTION HEARING DATE SET:
September 18, 2017, 10am
Location to be determined by the end of today (August 3rd)

Joey Coleman August 3, 201710:43

Maureen Wilson asks if participants may make submissions in regards to the “bad faith” argument regarding Council’s actions on Ward Boundaries.
City’s outside Counsel volunteers that the City does not object, Burley does not object, Dobrucki does not object but reserves the right to question those who make submissions. (A proper legal point by Dobrucki)

Joey Coleman August 3, 201710:46

OMB hearing Chair says Maureen Wilson may make a written submission to the Board on the issue of if bad faith [by Council] should be an issue before the OMB in the hearing of Ward Boundaries.
Anyone else – who is a registered participant – may file written submissions by August 30, 2017.

Joey Coleman August 3, 201710:46

NOTE: When I use OMB Chair, I’m referring to the hearing officer, not the Chair of the OMB itself

Joey Coleman August 3, 201710:52

Full Hearing Dates Set by OMB

October 19, 20
October 23, 24, 25, 26, 27


“Eight Hour Days” says OMB Chair. 10am start on the 19th, 9:30am start on other days. Hearing will run until 4:30 or 5:00pm. One hour for lunch.

One evening session on October 24 for participants to address the Board.

Joey Coleman August 3, 201710:52

Full Hearing Dates Set by OMB

October 19, 20
October 23, 24, 25, 26, 27


“Eight Hour Days” says OMB Chair. 10am start on the 19th, 9:30am start on other days. Hearing will run until 4:30 or 5:00pm. One hour for lunch.

One evening session on October 24 for participants to address the Board, will start at 6:30pm.

Joey Coleman August 3, 201710:56

With dates set, now the OMB will decide on the procedural order for the hearing. (What the issues are, and what order they’ll be dealt with)

Joey Coleman August 3, 201710:59

City is objecting to other parties bringing forth multiple options for the OMB to consider as possible ward boundaries.
Dobrucki says he will present six options.
Richardson, represented by Burley, City lawyer says will present one.

Joey Coleman August 3, 201711:03

Now arguing who will provide other parties their materials first.
Dobrucki is asking for the City to be first to provide, saying that the City hasn’t made public all the documents they used to make the new ward boundaries.

City to call three witnesses (likely a external) planner, expert in ward boundaries, “someone to deal with the numbers, maybe Watsons [& Associates]”
“Planner will likely deal with the history of the municipality”

Joey Coleman August 3, 201711:05

As a note, Whitehead remains present for the hearing with both of his office staff.
If Ward boundaries are reformed by the OMB, Whitehead’s Ward 8 will change significantly as the Ward is underrepresented due to having a larger than average population.

Joey Coleman August 3, 201711:09

City’s lawyer says they will only be using the Watsons & Associates Ward Boundary Review report, Dobrucki says he no longer objects, meaning he will not request the OMB require the City disclose first.
OMB member (panel of two: Chair and Member) enters discussion for first time, to makes sure everyone understands what the decision means.

All parties will file witness statements on the same day, Chair decides.

Joey Coleman August 3, 201711:11

Witness statements to be provided by Tuesday, September 19. Responses to witness statements due Thursday, October 5.
All parties consent (agree)

Joey Coleman August 3, 201711:14

Now dealing with City’s objections to Dobrucki entering six options for ward boundaries.
Dobrucki explains why six options are required for the OMB to consider, depending on the standards for ward boundaries the OMB decides to weight as factors if the OMB decides the Council’s drawn boundaries cannot stand.

Joey Coleman August 3, 201711:16

For the City, their case is strengthened by removing options for the OMB to consider for new boundaries.
Burley, representing Richardson, says they will be supporting Dobrucki’s “Option 6”

Joey Coleman August 3, 201711:21

City lawyer is arguing precedent was set in OMB hearing of Oshawa Ward Boundaries when the Hearing Officer did not allow for new ward boundary proposals at the hearing.
City lawyer says they will not object to Dobrucki entering only one alternative ward boundaries for the OMB to consider.
(I can’t find the Oshawa case in CanLII, sorry)

Joey Coleman August 3, 201711:24

Burley notes the OMB in the Oshawa case did consider alternative ward boundaries in that hearing, and that because the OMB’s power is amending the bylaw to create new ward boundaries, the OMB can (and must) consider alternatives.
Dobrucki says he entered his proposals during the Council process, and therefore fall under fair consideration of the OMB in this appeal.

Joey Coleman August 3, 201711:26

“Once enacted, the appellant must appeal the Council bylaw” – City counsel quoting the OMB Oshawa decision, says Dobrucki’s proposals were removed from consideration once Council made its decision.

Joey Coleman August 3, 201711:28

City’s legal counsel’s arguments may (my own spectulation here as I can’t know their motives) be designed to create an argument about procedure of this hearing for an eventual appeal to the Divisional Court after the OMB makes its rulings.
Municipal Councils that want their own ward boundaries have tried to delay by going to Divisional Court.

Joey Coleman August 3, 201711:31

City lawyer is arguing that if residents want to proposal their own ward boundaries for consideration by the OMB, they must submit a petition, have Council decide on the petition, and then appeal to the OMB.
In this case, the City voluntarily reviewed its boundaries, and therefore the OMB should limit itself to the City’s approved boundaries, and not a series of alternatives at this hearing.

Burley “The Board has power to amend, and therefore allow for alternatives to be proposed on how to amend”

City lawyer says they don’t object to one alternative from each party, but object to the number from Dobrucki as they need to hire experts to review each proposal.

Joey Coleman August 3, 201711:34

Now on the evidence list, Dobrucki says he wants the OMB to order the City to release to the parties the City’s 2026 population projections.
The City has not released this information to the public, Dobrucki says he requires the data as the City used for the Watson & Associates ward report.
City lawyer says the City may not own the intellectual property of the 2026 population projections, the IP may belong to Watson & Associates.

Joey Coleman August 3, 201711:38

City lawyer says Dobrucki will “manipulate” the 2026 population projections to update his maps. OMB Chair chooses to use the ward “implement” the data, while not formally taking issue with the use of manipulate the data.
City lawyer uses “manipulate” again, arguing the data may be a in proprietary format that may not be able to use the data.
Dobrucki says he is looking for ESRI SHP files the City used for the projections.

Joey Coleman August 3, 201711:39

Dobrucki says the City is arguing its case based upon 2026 projections, and therefore should release the data in the interest of procedural fairness. City lawyer says this is akin to asking the City to spend money to argue against itself.

Joey Coleman August 3, 201711:58

OMB panel took 10 minutes to deliberate:

– Orders City to produce
all data and information its using for population up to 2026, with
exception if the consultants and not the City actually owns the data.

– Sept 18 will be a procedural motion hearing for the “bad faith” issues. Location is not yet set.


On the issue of alternatives, OMB orders Dobrucki to narrow his six to
four, one of the four being the alternative that Richardson (represented
by Burley) is putting forth.

— The City will be presenting its own alternative if the OMB decides against the Council boundaries.


OMB Hearing Chair says Dorucki is to contact them if he is unable to
narrow to three alternatives of his five (excluding the Richardson
agreed one)

Joey Coleman August 3, 201712:00

On other issues for the issues lists, the parties have not reached agreement.
OMB Chair says the parties will need to submit issues lists prior to September 18, and will be resolved at that date if they cannot reach agreement.

Joey Coleman August 3, 201712:03

OMB directs three parties to have a telephone conference next week to try and reach agreement on the issues lists.
If they cannot, the OMB will hold a hearing date for the issues list.

Joey Coleman August 3, 201712:07

Going back: Seeing some social media comments about the City’s lawyer, Steven Ferri, arguing against a production order for population growth projections by stating it was akin to asking the City to spend money to argue against itself.
His argument is sound in law, in that if the City is required to spend funds to create the data, then the City is funding arguments against itself. (In this case, City and Council are one in the same)

Joey Coleman August 3, 201712:24

The parties will teleconference next week.
This pre-hearing is adjourned.
As additional, the OMB Hearing Chair is Bruce Krushhelnikci, the OMB Member on the panel with him is Paula Boutis.

Joey Coleman August 3, 201714:39

The parties will teleconference next week.
This pre-hearing is adjourned.
As additional, the OMB Hearing Chair is Bruce Krushhelnicki, the OMB Member on the panel with him is Paula Boutis.

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