Day Two of the Ontario Municipal Board hearing into City Council’s new Ward Boundaries is underway.
Today, the City will continue to present its case to the Board. The day beings with Gary Scandlan, of Watson & Associates, on the stand. He is an expert on Land Use and Population Forecasting.
Catch up on yesterday’s liveblog here: https://www.thepublicrecord.ca/2017/10/ontario-municipal-board-hearing-on-hamilton-ward-boundaries-day-1-liveblog/
Follow along with our liveblog below.
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.
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)
We’re underway. Good morning everyone!
Gary Scandlan, of Watson & Associates, on the stand. He is an expert on Land Use and Population Forecasting.
He did a quick review of his testimony from yesterday.
The OMB Exec Chair asks a question about verifying population projections – has the City looked at the 2016 census numbers to compare against past population projections?
Answer is not in detail for Ward Boundary Review, Scandlan says there were not great variations from the data looked at after the review.
Now discussing how Watson & Associates creates its own geographical areas to use their growth forecasts to create Ward Boundaries.
Of particular note, use of building permits and development applications to project recent and future growth in areas.
OMB Panel now asking more questions on accuracy of projections. Interesting series of questions about how they figure in the census undercount – which is adding for people who do not complete the census.
A good FAQ on Census Undercount from Peel Region here: https://www.peelregion.ca/planning/pdc/data/census/census-undercount-faq.htm
City is strongly making the case that they have added population in Ward 1 for the “student undercount”. Scandlan now references they are mindful of the Kingston OMB ruling about student population and effective representation.
Ward 15 Councillor Judi Partridge is now sitting in the public gallery.
OMB Panel asking how projections handle for McMaster students who do not live in Hamilton.
OMB to City witness Scandlan – how does McMaster know if a student lives in Burlington or in Hamilton during the school year?
Scandlan: Mohawk gave them a map of intensity of student population, we used this to estimate.
McMaster verbally gave us information of their data about where students live.
“Even the Ainslie Wood residents did some tracking of student population, and give it to us.”
“To the best of our ability … we tried to prorate the student information in those areas identified”
Scandlan says during their review of the City’s population forecasts they found errors.
(This is the City arguing their projections are very accurate, and to counter potential arguments that the imbalances between wards may be worse that forecast in 2026)
City Lawyer Ferri to Scandlan – “Is more reliable population data available?” (than what the City used)
These questions are now to challenge Dobrucki’s concerns with population data and forecast. Dobrucki will argue it is flawed.
Getting more details about nodes and corridors of the City of Hamilton.
City is doing heavy work in the hallway, which is causing some difficulty for the hearing.
City is wrapping its questions for its witness Scandlan.
Dobrucki will begin cross-examination shortly.
The professional courtesy between Ferri and Dobrucki is much improved today; thus far today, the mood in the room is relaxed professional. All in the room are playing their roles professionally.
I do wish I could take a photo in here to give you an actual picture of the many binders of documents being referenced.
My bad there, the OMB took a recess before cross-examination.
We’re back with Dobrucki’s cross-examination of Gary Scandlan
Dobrucki opens his cross with a very long question, which he is doing breaking down into a series of shorter questions
First objection, OMB Exec Chair to City Counsel “Mr. Ferri, you don’t have to protect this witness, he is an intelligent man and as an expert can defend his work”
Dobrucki is now asking questions about potential flaws and shortcomings in the population projection data.
Lots of very technical questions at present. To update without the full context that will come from the entire series of questions may diminish our understanding.
Discussion is on the “small geographical areas” created by Watson, which are even smaller than official planning unit neighbourhoods (There are six planning unit neighbourhoods in Ward 2 as example)
An non-relevant discussion on the “Nash South” SGA (small geographical area” with zero population.
Most likely, this refers to the Jackson Estate on the south side of King at Nash, the Jackson family ended farming many years ago, no longer live on the land, and the land is now scheduled to become a sub-division and midrise condo.
Dobrucki is now going into detailed examples of SGA’s that had, what Dobrucki calls significant, variations.
A upheld objection by Ferri, Dobrucki asked “what is the planning reason”
OMB Exec Chair upholds that Scandlan is not here as a planning expert, rephrases question has “what is the statistical reason”
As a side note, the OMB Exec Chair is very open with his thoughts on lines of questions. As he is a PhD holder, it’s fascinating to see him use his intellect during this hearing.
The Member, who is a lawyer, helping ensure the OMB can withstand a possible Division Court appeal if the OMB does not grant Council its boundaries.
Dobrucki is now arguing that variations in SGAs in Ward 1 and 8 are common, and that the population counts in these areas are failing to account fully for student populations.
Dobrucki has entered a new exhibit as part of his questioning. This will be challenged during Dobrucki’s testimony on the stand later in the hearing when Ferri can cross-examine him.
Exec Chair tells Dobrucki to ask a question, concerned he is arguing evidence.
Exec Chair is maintaining a rein on Dobrucki’s cross-examine.
Scandlan is very professional on the stands, being very mindful of his role as an expert to represent the facts to OMB, not to represent the party would called him as witness.
Exec Chair has intervened – he orders that Scandlan cross-examination will be split into two portions. Only “direct cross-examination” will be allowed, remainder of the cross-exam will occur after Dobrucki himself has testified, and Dobrucki’s evidence has been properly challenged by the City’s lawyer Ferri.
Exec Chair says OMB normally does not allow witnesses to consult with others during breaks between testimony, but in this case as Dobrucki is introducing his own work, Scandlan will be allowed to consult prior to returning to the stand to answer questions on the matter.
OMB is now on lunch break until 1:30pm
And we’re back in session. Also present as a journalist is Kevin Werner, following him on Twitter @WerkHCN
Gary Scandlan, of Watson & Associates, on the stand. He is an expert on Land Use and Population Forecasting.
This is a cross-examination by Dobrucki.
Dobrucki – do you agree it is not possible to know from the data provided by Mohawk and McMaster if student are living above or below the Mountain.
Scandlan – yes.
Dobrucki is asking simple and straight questions now. Scandlan providing direct answers.
Now discussing if it is more likely that community college students are living at home in their local community than university students, that university students are more likely to live away from home in a community where they are more likely to be undercounted in the census for the purposes of creating municipal boundaries.
Dobrucki: Do you agree that Ward 1 is more effective by a student population than any other Ward.
Scandlan: Yes, after consultation with Mohawk and McMaster.
Dobrucki: Would you agree with me that Ainslie Wood has a large proportion of students?
Dobrucki’s questioning this afternoon is very carefully worded, Ferri listening closely, but no objections thus far this afternoon.
Dobrucki: Why weren’t the full submissions from the public not produced to the public to the Councillors who eventually make the decision?
(This question gets to his claim that the Councillors didn’t fully consider public input in making their own ward boundaries)
Dobrucki now questioning why people cannot get the GIS data as part of the public consultation on ward boundaries.
Dobrucki is now referring to specific statements made at the February 1 2017 Council GIC meeting by the consultants.
I’m not sure where this line of question is going yet, there is some back and forth between Dobrucki and Scandlan
Dobrucki pulls out one of the Watson suggested Ward Boundary Options:
Why is Council’s preferred option superior to Watson’s recommended options?
Scandlan responds by reading the recommendation from Watson that their options are better than the existing Ward boundaries.
Dobrucki: so the two options from Watson & Associates meet all the requirements.
Dobrucki: is the current preferred ward boundaries worse for population imbalance than the Watson proposal?
Scandlan responds with a answer about how do you define worse in what sense?
Dobrucki pulls some numbers on paper, Ferri objects on the grounds that OMB had instructed that use of Dobrucki documents would be after his cross-examination.
OMB Exec Chair intervenes – says he heard Scandlan agreed that the Watson & Associates boundaries are better balanced for population than Council’s preferred boundaries.
That ends this line of questioning, Scandlan remains on the stand.
Now Dobrucki walks over to the map, points to areas of the map where areas on the edge of rural Ward 14. Asks Scandlan if they were added, would they bring Ward 14 within the +/- 25% population range.
OMB Exec Chair upholds objection: I’m not going to have the witness tested on their operation of a calculator.
Dobrucki ends his questions to Scandlan.
OMB Exec Chair now asking questions:
To Scandlan – do you stand by your recommendations as originally provided to the Council
Do you stand by your recommendations to this day?
He says they made the boundaries that Council eventually approved after receiving feedback from Council.
Ferri stands up to reinforce this point, that the final map Council approved (not the new settlement boundaries) were created by Watson & Associates.
Scandlan says see this Council map was “modified slightly” from the original recommendation.
Basically, the issue here is whose map it is: Council wants it to be seen by OMB as a Watson map, Dobrucki wants it seen as a Council map
Scandlan is now off the stand, but may be recalled after the Dobrucki testimony, evidence, and cross-examination late next week.
Dr. Bill Freeman is the next witness, he is listed as area of expertise in History and Sociology.
He’s being sworn in on the stand. New maps being put up on the easel.
Dr. Freeman’s website is: http://billfreeman.ca/
Freeman opens with noting that his wife says he is hard of hearing, and that people will need to speak up.
OMB Exec Chair “I think we may be married to the same wife”, laughs in the room.
OMB Exec Chair instructs he is to be referred to as “Dr. Freeman”
OMB Exec Chair moving procedural matters quickly; clearly wanted to complete at least Dr. Freeman’s testimony before 4:30pm.
Dr. Freeman is now providing his academic CV
The CV and establishing Freeman as an expert takes time. Basically his academics and his knowledge of Hamilton.
City’s Lawyer Ferri wishes to have Dr. Freeman declared an expert on the City of Hamilton
Dobrucki challenges, asks Dr. Freeman about the Flamborough referendum on amalgamation – Dr. Freeman is not familiar.
Dobrucki: how can you be an expert on Hamilton’s history, especially since Flamborough and amalgamation is a big issue in this hearing, how do you not know about this referendum and issue?
Dobrucki objects to Dr. Freeman being an expert on Hamilton history as he does not know the history of Flamborough’s concerns about amalgamation.
OMB panel now conferring.
OMB Exec Chair asks City to counter. Ferri says he is going to speak to the evolution of the City of Hamilton, the most recent history of Hamilton is not something in his statement and the City does not intended to do.
OMB does not grant Dr. Freeman expert status, will allow the questioning and then weight it appropriately at the end of Dr. Freeman’s time on the stand.
OMB Exec Chair notes this does not mean his is not an expert — that he could not answer “trivia pursuit” does not disqualify him — the OMB will look favourably on his academic knowledge, training, and experience.
Freeman asked to discuss his retainer with the City and what they’ve hired him to do.
He was hired to look at Wards 12, 13, 14, 15 and their distinct character.
Freeman says he spoke extensively with Russ Powers – the former Dundas Councillors of many decades.
Freeman spoke extensively with Ferguson, Vanderbeek, and Pasuta as well.
Freeman is the first City witness that the City is asking to review the Councils new preferred boundaries.
Dobrucki raises to ask if the City’s lawyer assisted with Dr. Freeman’s notes.
OMB Exec Chair is now asking Freeman detailed questions on what his communications with City legal counsel?
OMB Exec Chair confirms that that opinions within are Freeman’s and contact with City lawyer limited to advice on process and not on substance.
OMB Exec Chair is okay with the notes, explains process for Freeman.
Freeman says the proposed wards that eliminate any of Wards 12,13,14,15 do not protect communities of interest, and that’s a very important principle – especially the cultural, history, and “economic community of interests” need to be protected. That’s why he says the City’s new preferred wards protect the rural and suburban communities of Hamilton.
Dr. Freeman now speaking about first settlers, and that they created the distinct communities of interest of the suburban communities.
Dr. Freeman “Hamilton was the relative latecomer” among the communities. People in the suburbs “won’t say they are from Hamilton, local community identity is important”
Says they need their own wards to retain their important local identities.
Notes that people in Hamilton proper don’t identify from Hamilton alone, they say “Hamilton Mountain” or “Lower Hamilton”
OMB is taking a break.
Dr. Freeman used the term “Upper Hamilton” in stating that people do not say they are from Hamilton, but they are from “Upper Hamilton”
I’ve never heard that terminology.
As the break continues, I’m really mindboggled by the use of the term “Upper Hamilton”
Freeman may be referring to the newer trend of people identifying within Hamilton as being from specific neighbourhoods. This includes where Hamiltonians will say in Toronto what Hamilton neighbourhood they are from, but beyond our “local” boundaries, I’ve never heard of this as a trend when traveling.
And we’re back in session with Dr. Freeman on the stand.
Dr. Freeman discussing the history of Ancaster, which was at the crossroads of two major native travel routes. Founded prior to War of 1812.
Dr. Freeman talking about how steam caused a decline in Ancaster, population, including township, went down to 350 people.
Ancaster was a place where people moved to escape from industrial population in Hamilton… now Dr. Freeman now at 2000’s amalgamation.
Now on the politics of Ancaster today.
Ancaster is quite an affluent area of Hamilton, mainly English speaking, mostly highly skilled professionals, says Dr. Freeman. It’s a rather high income area he says.
MY OPINION: This argument of “economic community of interest” may be one of the reasons for the City’s very strong objection to the consideration of a academic paper on representation of racial minorities in Hamilton. https://twitter.com/JoeyColeman/status/921021317943525377
Dr. Freeman says Ancaster works well as a present ward because the population shares common backgrounds and common political views.
Now onto the history of Dundas, and the unique geography. Freeman says the geography gives them a unique character.
Dr. Freeman speaking about the Desjardin Canal, railways, and the boom of Dundas.
Discussing how Hamilton became the boom town, and Dundas started to get shadowed (my term) by Hamilton.
“What changed Dundas was the coming of McMaster”, says Dr. Freeman. “It made a huge difference on the area we call Westdale, but Dundas as well”
“Dundas is fairly close to the University, a lot of university people live them”
Dr. Freeman says it gives Dundas a unique academic and arts community. “A very important school of art there” the Dundas School of Art.
It’s also “known as a remarkable music centre” nothing the Conservatory. “Stan Rogers, one of my favourites, lived there”
Now to Dundas and amalgamation.
“A lot of the opposition in the area really came from Dundas, I attribute to this mix of academics … and the arts community that is engaged as well and quite vocal”
“It become a loud centre of opposition”
“Of course, we know what happened there”
Dr. Freeman says the political character of Dundas is unique. It is highly educated, “largely a Anglo-Saxon community, 7% are visible minorities”, higher than average income in Dundas.
“I’ve been struck by Dundas … by the level of political engagement”
“Dundas is adjacent to Flamborough, but I think it is very different from the rest of Hamilton. People are strongly attached to their community and want to protect the uniqueness of their community”
Ferri is now asking a question of Dr. Freeman on Dundas.
Now focusing on the unique “prestige of people” in Dundas. Dr. Freeman using that term.
Now onto Flamborough.
Flamborough has a sizable percentage of farmers, Dr. Freeman opens on Flamborough.
The War of 1812 was very difficult on Flamborough, Dr. Freeman says. Says Flamborough was “a war zone, with American raiders coming in, it was not much fun”. Speaking about war refugees in the War of 1812 overwhelming Flamborough.
This leads to new settlers and growth in the area.
“The population in Flamborough has been remarkably stable over the years”
NOTE: Dr. Freeman is speaking to Ward 14, not including Ward 15 which is Waterdown
“The Flamborough population is on average older than the rest of the City” “The area is overwhelmingly English speaking, overwhelmingly Anglo-Saxon, only 2% is minorities which I found interesting” – Dr. Freeman
“Income is interesting, the farmers are doing well … it’s higher than Dundas … much higher than Hamilton”
MY OPINION: It will be very interesting to see if Dobrucki uses Freeman’s focus on the Anglo-Saxon character of Wards 13 & 14 to advance the issues of minority representation in the academic paper the City is objecting to.
Arguably, the City just made ethnicity an issue by entering that the Anglo-Saxon character of Dundas is one of the many reasons it is a community of interest entitled to a lower population for representation on Council.
Here’s that paper: https://cpsa-acsp.ca/documents/conference/2017/Barnett-Bird.pdf
Ferri now asking Freeman about water service in Ward 14. He’s advancing the argument they are a community of interest with unique needs for representation due to many people relying upon personal water wells, and in the case of Freelton the municipal water tower.
Dr. Freeman now discussing Ward 15, Flamborough east of Highway 6. “Let’s just talk about Waterdown, because that’s your question”
Dr. Freeman says “First Nations used Waterdown … there was First Nations settlement going back thousands of year”.
“There was some opposition to amalgamation … a lot of people there thought they should be part of Burlington”
Speaking about why Waterdown looks to Burlington instead of Hamilton.
I forgot to note that Judi Partridge left before lunch. Sorry about that, busy watching the proceedings, not the gallery.
“This is my sense of what happened, the people of Hamilton were indifferent, it was the surrounding municipalities that were opposed, and there were many reasons for that”
“The main problem is that the surrounding municipalities feared they would be swallowed up by the larger City of Hamilton … that they would lose their effective voice in local government and lose their identities to the City of Hamilton”
Freeman’s opening statement is now done. Ferri now is posing questions on behalf of the City. Dr. Freeman is a City witness.
Dr. Freeman now being asked the connection between effective representation and communities of interest.
Dr. Freeman is now reading the Supreme Court of Canada decision on the need for effective representation.
Freeman now speaking about the importance of protecting communities of interest, and the 2013 Ottawa decision that included there needed to be a rural Council seat.
Ferri clarifies that Dr. Freeman is not arguing the Ottawa case as an expert, he just mentioned as something that informed his opinion. The City will enter that case later.
Ferri was about to start a new line of questions. OMB Exec Chair says this is a good time to pause testimony; and wrap for the weekend.
First, procedural matters and time estimates.
Some laugher as the counsel joke about time estimates; the case is taking longer these two days then expected.
Dobrucki says he will need many hours of cross examination of Dr. Williams and Dr. Freeman. Dobrucki says he’ll need four hours to testify, Ferri says he expects objections, Exec Chair “we’ll add two or three hours for arguments”