Ontario Municipal Board Hearing on Hamilton Ward Boundaries Day 1 [Replay LiveBlog]

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Hamilton's existing 2001 - 2018 Ward Map

The Ontario Municipal Board hearing into Council’s latest ward boundaries proposal is underway today.

The Public Record is liveblogging the hearing today.

Most recently, the City and Mark Richardson reached a settlement of one of the appeals. TPR’s analysis Council Miscalculation: How the Ward Boundary Settlement Sets Council’s Defeat at the OMB.

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.

Appellant

Two private citizens have appealed the Council’s new self-created ward boundaries. Mark Richardson and the City of Hamilton reached a settlement, Richardson is no longer an active appellant.

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 October 19, 201710:26

Good morning,
The OMB hearing is underway, at present, they are hearing from additional members of the public who are seeking participant status.
Many residents of Ainslie Wood are seeking to speak to the recent settlement that Council approved which will split Ainslie Wood.

Joey Coleman October 19, 201710:31

Rachel Barnett, Ph.D candidate at McMaster University who academically studied the matter of Hamilton’s Ward Boundary Review. Her paper found that Hamilton’s Wards are among the worst in Canada for effective representation of minorities.
She is seeking participant status, the City of Hamilton is objecting to her request.
https://cpsa-acsp.ca/documents/conference/2017/Barnett-Bird.pdf

Joey Coleman October 19, 201710:38

Ms. Barnett is the only member of a visible minority community who has sought participant status as an individual, and the only person seeking to speak to minority representation.
She is the only participant that the City is objecting to being a participant.
The City is arguing that she lacks sufficient reason for not registering in advance — the City argues that she is raising significant new issues.
The OMB Executive Chair is expressing concern that Ms. Barnett is presenting as an expert, the City is objecting to her due to her expertise.
The OMB grants Ms. Barnett participate status.
The City objects again, and says “prejudicial to the fairness of the process for the City”.
OMB Executive Chair says the City always has the right to bring forth a counter-witness.

Joey Coleman October 19, 201710:50

Roman Sarachman, Committee to Free Flamborough, objects to the hearing, says the OMB is considering “overwhelming the rural area” with City representatives on Council.
An interesting discussion on the OMB, it’s purpose, and local government’s purpose.
Sarachman asks to use Powerpoint next week, granted.

Joey Coleman October 19, 201710:53

The number of participants is now 25.

OMB Executive Chair asks that those can attend during the day on Wednesday to attend on the Wednesday as the Tuesday night for participants will be very difficult to get all the participants heard.

Joey Coleman October 19, 201711:01

Two parties have expressed interest in being participants; the OMB is giving them until 1pm to attend to gain participant status.

They are:
Ira Rosen, Ainslie Wood Westdale Community Association
Chukky Ibe, McMaster Students Union Inc.

Joey Coleman October 19, 201711:05

City Counsel Steven Ferri and appellant Drobrucki are arguing if Drobrucki can argue that Council choose to make minimal changes to boundaries to attempt to maintain status quo boundaries that were the least disruptive to themselves.

Joey Coleman October 19, 201711:09

Ferri argues that Drobrucki did not provide him notice of this argument.
Drobrucki presents his documentation that was submitted to the City Council as part of the public delegations to Council on Ward Boundaries.
Drobrucki states that the documents should’ve been give to the City lawyers by the City Clerk, so it is not new evidence.
Ferri argues this issue was missing from his witness statement, says this is new evidence.
OMB will deliberate on this matter, and decide if it will be added to the issues list.

Joey Coleman October 19, 201711:13

New terminology agreed to by OMB for this hearing to prevent confusion:
“Existing Boundaries” – the current wards
“Bylaw Boundaries” – Council’s first boundary change (the gerrymandered wards)
“City Preferred Boundaries” – the new boundaries the City is proposing which include the splitting of Ainslie Wood.

Joey Coleman October 19, 201711:17

Ferri and Drobrucki are now arguing about new maps proposed by Drobrucki.
Getting very detailed on timelines – basically, City is arguing they provide Drobrucki with GIS data in a timely matter, and that one of his maps was not provide to the City in a timely matter.

Joey Coleman October 19, 201711:19

Drobrucki is arguing that his most recent map is amended as a result of the City’s new City Preferred Boundaries.

Joey Coleman October 19, 201711:21

Ferri is arguing well, noting what the City sees as contradictions in Drobrucki’s positions.

Joey Coleman October 19, 201711:25

OMB reserves ruling on if the latest Drobrucki’s map will be allowed.

Joey Coleman October 19, 201711:28

Now arguing if the individual statements of City Councillors at City Council. City’s position is that Councillors’ statements are not relevant, “Council speaks with one voice in their decision”.
The February Council debate on Ward Boundaries will be entered as evidence.

Joey Coleman October 19, 201711:33

Sum of this argument is that the City may object if statements of Councillors are deployed in the hearing.
OMB Chair notes that Drobrucki can use the video for cross examination of witnesses.
“we will allow it [the video] to remain alive for Mr. Drobucki” to use for relevant evidence.

Joey Coleman October 19, 201711:41

There was discussion of the video of the February meeting. I will be providing a copy from the TPR archive on my office server.

Joey Coleman October 19, 201711:41

OMB now taking a break prior to opening arguments.

Joey Coleman October 19, 201712:01

Ontario Municipal Board is back.
Stephanie Bertolo of the McMaster Students Union now stepping forth to confirm their participant status.

Joey Coleman October 19, 201712:08

OMB allows the latest Dobrucki map.
I missed the ruling on the issue of Council preferring status quo. I’ll get that as soon as I can.

Joey Coleman October 19, 201712:09

Ferri is making his opening statement on behalf of the City.

Joey Coleman October 19, 201712:11

Ferri argues that the City Council’s preferred ward settlement meets the Carter standard, and that it meets the City the city’s five criteria for deciding.
The City’s preferred wards protects distinct communities, distinct voices, and geographical communities of interest.

Joey Coleman October 19, 201712:18

City says they need to implement their new preferred boundaries to “protect the communities of interest of West Hamilton”
City emphasizes they are the only party calling expert witnesses.

Joey Coleman October 19, 201712:20

The City argues that Dobrucki is incorrect in his statement that the City should’ve provided open data during the Boundary Review process – there is no requirement under law for releasing data to the public in those formats.

Joey Coleman October 19, 201712:22

Ferri argues, for the City, that the OMB must show deference to the decision of Council.

Joey Coleman October 19, 201712:25

Dobrucki starts his opening argument by stating ideals of government, states that Councillors should be held to a higher standard of decision making and conduct as public servants.
City objects to the statement about higher standards – says it’s an attempt to argue Council acted in bad faith, and that the law does not require higher standards of Councillors than that of regular citizens.
From a legal perspective, the City is trying to protect itself in later arguments.

Joey Coleman October 19, 201712:26

Dobrucki “I contend the Council has taken the path of least resistance … when it ignored the recommendations of its paid consultants”
Dobrucki references that Council only conducted the review in response to a petition.
As the Clerk did not certify the petition, the City legally speaking was not responding to the petition, and the City’s lawyer objects to the mention of the petition – the sentence is struck from the opening statement.

Joey Coleman October 19, 201712:29

OMB Exec Chair concerned that Dobrucki is giving evidence in his opening statement. Chair cautions to stay to overview.

Joey Coleman October 19, 201712:35

Dobrucki argues that the City has failed to deal with issues of population disparities in Wards.

Joey Coleman October 19, 201712:37

Dobrucki argues that the urban areas of Dundas and Flamborough are getting their own wards, and this is not protecting the rural community of interest, it is merely giving some urban area overrepresentation compared to other urban areas.

Joey Coleman October 19, 201712:39

Dobrucki argues that if the City were truly protecting rural communities of interest, they would’ve created an eastern rural ward.

Joey Coleman October 19, 201712:40

Technically, Dobrucki is making his opening statement, but he is getting into evidence. The Chair kindly nudges him to stick to statement.

Joey Coleman October 19, 201712:41

Executive Chair now stops Dobrucki – tells him he is delivering evidence, not an opening statement.

Joey Coleman October 19, 201712:49

Dobrucki says the City has the burden of proving they are living up to the Carter decision by creating urban wards with less than half the population of other urban wards.

Joey Coleman October 19, 201712:51

Executive Chair getting frustrated with Dobrucki, he is making arguments instead of opening.

Joey Coleman October 19, 201712:58

Dobrucki argues the City failed to give natural justice when they refused to provide population project data in electronic format, City refused to provide until OMB ordered them to provide it. Then the City claimed a $625 fee to convert the data into transferable electronic format.
Dobrucki says he wants the OMB to order the City to repay the fee.
Ferri is now countering Dobrucki; is concerned Dobrucki is asking the OMB to do something that cannot.
Executive Chair says he cannot issue an order to have City refund the $625 fee.

Joey Coleman October 19, 201712:59

We’re now on lunch. It will be a 90 minute lunch break.

Joey Coleman October 19, 201714:25

OMB scheduled to return in five minutes at 2:30pm

Joey Coleman October 19, 201714:33

OMB is back in session.
First witness is Tony Fallis, City of Hamilton’s manager of elections.
He’s been sworn in, and is now on the stand.

Joey Coleman October 19, 201714:36

Objection from Dobrucki, Tony Fallis is reading from a document in responding to questions.
Dobrucki is objecting, he wants a copy of the notes provided to both parties.

Joey Coleman October 19, 201714:38

Mr. Fallis says he is answering questions in his notes.
OMB Chair is ensuring the answers are his own, and not provided to him.
Fallis states the answers are his own, OMB Chair says he is satisfied there is nothing out of order.
Chair does state the other party may be provided the notes.

Joey Coleman October 19, 201714:39

Fallis giving an overview of the ward boundary review process.

Joey Coleman October 19, 201714:41

Fallis giving a history of O.Reg 448/00 which set Hamilton’s ward boundaries in 2000.

Joey Coleman October 19, 201714:42

Fallis says the ward boundary review began in 2012, with a report to Council. Council directed that boundary review be brought back in 2015, which is the process that is unfolding today.

Joey Coleman October 19, 201714:46

Fallis outlining how City staff came to hire the consultants.

Joey Coleman October 19, 201714:47

Fallis now discussing the timelines for implementation of new boundaries, such as the creation of ward polling divisions.

Joey Coleman October 19, 201714:52

Fallis’ primary purpose as a City witness is to outline the public process and to show the OMB that a full and proper process was held in creating the new boundaries.

Joey Coleman October 19, 201714:56

Now discussing the second round of public process; much emphasis on public meetings in nine different locations, and both evenings and weekends.
Ferri, City Counsel, asks if there were more opportunities to comment on Ward Boundaries.

Joey Coleman October 19, 201714:57

Fallis outlines various means of contact for citizens, including ward review website, email, public delegations.

Joey Coleman October 19, 201715:00

Fallis now describing the process where Councilors gave their input after the first final report.

Joey Coleman October 19, 201715:00

OMB Chair is asking questions of clarification.

Joey Coleman October 19, 201715:03

Terminology here quickly gets confusing. A combination of OMB terms, Ward Review terms, and then City Hall’s own confusing terminology.

Joey Coleman October 19, 201715:05

There’s a lot of technical and jargon being used at present. City Counsel Ferri is now pulling things back and trying to listen the potential confusion.

Joey Coleman October 19, 201715:08

Ferri is now done, Dobrucki is now cross-examining.

Joey Coleman October 19, 201715:10

Ferri is diligently objecting to protect Council’s interests.
Now clarifying a question from the OMB Chair to Fallis (Manager of Elections, City of Hamilton)

Joey Coleman October 19, 201715:15

Dobrucki is on a detailed line of questioning about an email. I don’t have a copy of the documents in front of me, I’m listening to determine what the purpose of the questions are.

Joey Coleman October 19, 201715:18

This is related to a request from Alan Hall for the City to provide population data and projections. Hall requested in spring of 2016 seeking to use the data to submit detailed and researched ward options to Watson and Associates.
The City did not provide the data.
Dobrucki is advancing an argument that the City’s lack of providing open data preventing full participation of the public in the process.

Joey Coleman October 19, 201715:19

Ferri agrees that the City did not provide the data, which ends this line of questioning.

Joey Coleman October 19, 201715:21

Dobrucki to Fallis “What’s your understand of the term ‘communities of interest?'”
He says it is “areas of the City that have their own identity”, and “that Councillors do not want to see them broke up in any way”

Joey Coleman October 19, 201715:22

Pause as Dobrucki consults his notes. Chair asks Fallis nicely if he is doing okay – a nice gesture to the person on the stand.

Joey Coleman October 19, 201715:26

Dobrucki says the consultants report to Council only contained summaries, not individual submissions of people participating ward boundary review.
I have ideas of where he is going with this.

Joey Coleman October 19, 201715:26

Fallis is now done, 10 minute break called.

Joey Coleman October 19, 201715:38

Gary Scandlan, Watson & Associates Economists Ltd. is now on the stand. He is an expert witness, his area of expertise is Land Economist

http://www.watson-econ.ca/staff.aspx

Joey Coleman October 19, 201715:41

Ferri is now establishing Scandlan as an expert.

Joey Coleman October 19, 201715:45

Now done establishing Scandlan as an expert. No objection from Dobrucki. He is qualified.

Joey Coleman October 19, 201715:47

OMB Exec Chair approves him as an expert on Land Use and Population Forecasting.
Scandlan was born in Hamilton, lived here for 31 years, continues to have family in Hamilton. Worked for Region of Hamilton-Wentworth for many years. (I missed the exact dates he stated)
Worked on many Hamilton forecasting projects in the past 15 years.

Joey Coleman October 19, 201715:56

Ferri now discussing Scandlan’s role in the review. He’s establishing the City argument that the review was extensive, well researched, and that Council received great data before making their own decision, which is based in the facts from the review.

Joey Coleman October 19, 201716:05

Now discussing how census data is reported and released – why rural census tracts are much larger than urban ones, and such.

Joey Coleman October 19, 201716:11

Now discussing how Watsons and Associates (the consultant who wrote the Ward Boundary Review) now discussing how they created smaller population units more detailed than the 140 census tracts in Hamilton

Joey Coleman October 19, 201716:18

Now discussing how the McMaster student population is calculated.
Scandlan says they used census unoccupied units to determine how many students many not be counted in census, they spoke with post-secondary institutions to get information on general location of where students live ….

Joey Coleman October 19, 201716:20

There is some very light humour as Scandlan explains how the population of his home as decreased as he “encouraged” his kids to move out.

Joey Coleman October 19, 201716:31

Discussion about long-term population trends of urban areas, and how neighbourhood populations stabilizing when neighbourhoods older than 35 years old.

Joey Coleman October 19, 201716:50

OMB Executive Chair is suggesting that at this point, we’re still in how to project population, that once this area is complete, the Board adjourn for the day.

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