Day Six of the Ontario Municipal Board hearing into Council’s new ward boundaries will see appellant Robert Dobrucki on the stand to give his testimony and evidence in the matter at the start of the day.
Following this, Land Use and Planning Expert Gary Scandlan will return to the stand for cross-examination by Dobrucki. The OMB panel choose to have cross later in the hearing to give Scanlan the opportunity to hear Dobrucki’s evidence before being cross-examined in part based upon that evidence.
This afternoon, if the cross is completed, Dobrucki will be cross-examined by the City’s lawyer Steve Ferri.
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)
Good morning everyone. The OMB panel will arrive within minutes and we’ll get started for the day.
Both Ferri and Dobrucki arrived shortly after 9am, and put have been working very silently laying out their desks for today’s hearing. (Normally, there’s been some friendly conversation on non-OMB matters, but today both are very focused on what will be a long and important day)
The OMB Panel has arrived. Ferri calls order, the panel is now seated, and Dobrucki returns to the stand.
Dobrucki and Ferri conferenced by email last night. Dobrucki says they hope to be done by tomorrow.
(They didn’t address if there will be oral closing arguments – so at this point, if you wish to attend closing, be prepared for tomorrow, pending confirmation)
Dobrucki is now establishing in his testimony his viewpoint that the Ward Boundary Review did not provide a full range of options, and therefore he believes the process was flawed.
Dobrucki is now listing a series of differences between population projections used in the 2016 review, which have significant variations from the recent census.
Basically, the sum of his present testimony is to advance the argument that the 2018 wards should be set based upon the 2016 census data, not 2026 projections which he is arguing are flawed.
OMB Exec Chair “I do not buy that” He says that Dobrucki is arguing on very small population units [as an example for you the reader, Ainslie Wood is six of these small population units], and that variations are to be expected.
“You see this as an anomaly, I do not”, says the Exec Chair.
Exec Chair explains that he is looking at the larger groupings and city-wide for trends, not the individual small geographical areas.
Dobrucki is now arguing there are many “oddities” in these units. He noting many examples of significant variations from the present population which cannot be explained.
OMB Exec Chair says that all this confirms that data becomes more accurate in larger aggregation, that’s what he is taking from the testimony.
Dobrucki responds that the anomalies in Ainslie Wood are concerning as he believes they show significant overestimations in population, and the City has split Ainslie Wood to add population to Dundas so Dundas is barely within 25% of the average for ward sizes. These differences between census data and City projections push the new ward over the 25% threshold.
Dobrucki notes that the City is expecting the existing high-rise buildings on the west Main West past Osler (across from the cemetery) to add over 250 new residents from census data. He asks how that is possible when its already fully built out, and there is no room for growth. [I can only see the City arguing that the motel, garage, and small plaza may become new development]
Now Dobrucki is arguing that the City’s population projection for new residents on the former Chedoke Hospital lands is on the low end – compared to Main West, Dundas, and Ainslie Wood being on the high end – Dobrucki argues the City is underestimating to decrease the variations between wards as Ward 8 is the largest.
Dobrucki has provided the Board with a lengthy chart arguing the units that are in his opinion misprojected and not properly forecast.
Dobrucki is arguing that setting Ward Boundaries at a +/- 10% variation, instead of the City’s +/- 25% variation, because any errors in projections will not result in wards getting significantly overpopulated or underpopulated. Whereas, with the City starting at the 25%, errors will result in Wards well beyond the 25% barrier.
On the last point, Dobrucki ended with “I’ll end there, I had to enter that as opinion, I’ll argue that as evidence”
OMB Exec Chair and Ferri both pop up their heads, look at each other for about 7 seconds, Dobrucki testimony continues without interruption..
(For those of you familiar with the technicalities of the OMB, you may understand why this is potentially significant or noteworthy, I have my thoughts on this, but am not going to add them to the blog as I’m not extremely familiar with the OMB procedural rules and case law)
Dobrucki now arguing ward by ward that the OMB setting wards at +/- 10% is important to ensure all wards stay within 25% of the average until after the 2026 election.
Arguments are getting complex, and overlapping. I may have to catch you up at the break. I’m taking point form notes right now. Sorry.
I do apologize, it looks like I’ll need the break to catch up the liveblog. I am taking notes, it’s just that in point form, they make sense to me, not for you. Sorry.
Getting caught up for you:
Dobrucki argues that the Supreme Court of Canada Carter decisions statement that protection of minorities is a criteria for creating population boundaries, that this must be read as minorities being disadvantaged groups. “the wealthy top 1% is a minority, but not disadvantaged”
The OMB Exec Chair responds to this reasoning by asking Dobrucki “You don’t see the loss of the rural voice as the loss of a minority voice?”
Dobrucki responds that he does see the elimination of the rural voice, but that this is not a “trump card” over the other minority voices, such as spliting the student community and decreasing the weight of votes of visible minorities.
Dobrucki states the City is stating that Wards 11 and 12 work well, that in fact the City stated Ward 12 is working very well and the rural area is receiving excellent representation – this is a mixed suburban/rural ward similar to Dobrucki’s proposals.
OMB Exec Chair questions how a Councillor would represent the rural voice if the rural voice is only a minority within their ward.
Dobrucki responds that Councillors pay attention to smaller groups within their existing wards, specifically citing the care and attention that Councillors give to religious minorities even when small in the ward – attending events, ensuring their voices are heard, and representing those interests and not just the majority.
Dobrucki argues Council rejected the consultants report (the City says they amended it, the Consultants say Council significantly improved it with the Council preferred boundaries) “What happened at Council was the path of least resistance”, Council did not want to eliminate one of their colleagues seats
“That that approach was saying no to one of the Councillors at the table”
Dobrucki argues Council’s line of thought was “We’re playing musicial chairs, and we’re pulling away one of the chairs when the music stops, and that is difficult.”
Dobrucki continues that the City could create a rural ward with enough population, but they would require rural Ancaster and some of Glanford, but this would impact Ward 12 Councillor Lloyd Ferguson who lives in the rural area.
Drobucki: The City argues Flamborough is one community that cannot be divided, that Ward 8 is one community that cannot be divided, but people don’t identify themselves by ward, they indentify by their settlement area or neighbourhood. (lack of quotation marks indictates I’m paraphrasing, for your clarity as a reader)
Dobrucki: The City option splits Ainslie Wood which I consider to be one community, whereas my option splits Flamborough with I see as a group of communities.
(The City does not see Ainslie Wood as a single community, and the City says its dividing it reflecting existing connections the western and north portion of Ainslie Wood with Dundas. Whereas, the City says both Flamborough and Ward 8 as a whole are one community that cannot be divided in any way)
and we’re on break now, the break is expected to go until 10:50am
Mark Richardson is now present, observing from the public gallery.
Dobrucki is now done delivering this testimony.
When we resume, Gary Scandlan of Watson & Associates is on the stand, he is the expert on Land Use and Population Forecasting. He gave his testimony on Day Two, but had to await until after Dobrucki’s testimony for cross examination.
Scandlan is on the stand, there are discussing exhibits in fine detail, I do not have this in front of me, I’ll do my best to give you the broad strokes of what the testimony is getting to, and what it means.
First round of arguments is on errors in population projections in Ward 8, one of the small projection areas was placed in Ward 2 due to a GIS error related to the escarpment. Dobrucki is advancing his +/- 10% argument.
OMB Exec Chair says the case is not going to be decided on small projection errors.
This series of questions from Dobrucki to Scandlan is on Ward 8 errors.
OMB Exec Chair asks Scandlan if any of these errors do not “self-correct” once at a ward level calculation.
Scandlan firmly asserts that on the aggregate the projections from his report are accurate and comprehensive.
OMB Exec Chair accepts this.
This is the most times I’ve seen the Chair getting involved in a section. He’s letting Dobrucki argue individual errors, but clearly signaling that the Board has yet to see any of these small area errors as having any significance in the aggregate.
Thus far, the length of this argument does not appear to be bearing any fruit for Dobrucki.
Again, OMB Exec Chair asks Scandlan if any of this impacts the aggregate or the accuracy of aggregate projections. Scandlan repeats there is no impact.
Dobrucki ends his cross.
Ferri is now conducting redirect. He is tightening up the City case well in this redirect.
Redirect is done.
The order of proceedings is that Dobrucki is next on the stand for cross-examine.
Dobrucki now returns the stand.
Now in the public gallery is former Hamilton-Wentworth Regional Chair Terry Cooke.
Dobrucki cross examination begins
Ferri: “I want to thank you for your evidence, and I admire your passion for this subject”
Ferri – you attended the public sessions, you spoke to Council on Feb 1, during which time you submitted your options to Council at that meeting.
To all questions, Dobrucki replies in the affirmative.
(Ferri is countering Dobrucki argument that the WBR did not properly ensure public participation by not passing on public comments, but only a summary to Council. Ferri looking to show that Dobrucki has no standing to make that argument)
WBR – Ward Boundary Review
Ferri is speaking in a projected calm voice, the voice is also showing respect. Ferri has adopted well to the direction of the OMB.
Ferri establishing that anyone can speak to Council during their consideration of the Ward Boundary Review process.
(First mention of Matt Jelly by name, in that he delegated)
Now some legal word debate, Ferri repeats a question, Dobrucki responds with same answer, repeated three times.
Ferri says “You are not answering my question”, Dobrucki “I’ve answered the question”
Ferri “I’ll move on”
Ferri now arguing that Dobrucki did not conduct any public consultation on his alternative ward boundaries. (This is to argue that Dobrucki’s maps should not be adopted by the OMB as the City’s preferred wards resulted from a public process)
Ferri is now arguing on the calculation of non-permanent students. This is related to the City’s population adjustment stating there are no students in Dundas.
(there is also other City statements that Dundas is heavily populated by students, the only means of these statements being consistent is that every student in Dundas lives there 12 months of the year)
Reminder this is a cross-examination, when I say argue, I refer to the line of questions being to advance an argument, each of the Ferri statements is in the form of questions to Drobrucki, most end with “is that correct?”
Ferri is now making a series of questions to argue that Dobrucki’s view of the population variations between wards should be +/- 10%, wheres the City argues +/- 25% with exceptions to this for greater differences to “protect the rural voice”
Ferri is now arguing against the Rachel Barnett paper, he’s working to limit the consideration of the paper, and establish that the paper did not look at individual wards, and does not apply to the City’s Ward Boundary Review as her model does not work on a ward level and should not be given much weight of consideration by the OMB.
Ferri now arguing that Dobrucki did not establish visible minority issues during the process, and in front of this Board prior to the hearing.
(Ferri is advancing the City Council position that visible minority representation is not something the City considered as a criteria, that is it is not important *to this hearing*, and that the Board should not consider visible minority interests as it was not considered a criteria by the City Council in deciding boundaries)
Note on edit an hour later from this post: I’m noting that
my language was less precise than I wish to be. The Council position is
that minority representation issues are not important *to this hearing*
as it was not considered as part of the review.
Dobrucki says he’s often considered minority representation issues in his life, that his bringing of this issue is not solely as a result of the Barnett paper. Ferri uses this to open a line of questioning.
Ferri argues that Dobrucki’s advancement of minority representation is a “convenient” means of arguing against the City’s ward boundaries, and was not advanced by Dobrucki as an issue until he saw Barnett’s paper.
(Ferri is wisely choosing his arguments on the Barnett paper, keenly aware of how well Barnett presented to the OMB, and how well received by the Board panel)
Ferri is arguing against the importance of the Barnett paper in a series of questions to Dobrucki.
For Ferri, the OMB’s strong discouragement of the City continuing protests and contesting of the Barnett paper has benefitted the City case. Had he posed these questions directly to Barnett, the City would’ve been strongly countered by her because of her research. Dobrucki has not done this research and it shows in the argumentative non-expert responses.
The exchanges continue with a series of back and forths, and hypothetical scenarios, and muddying of the waters as two non-academics argue over a academic paper.
Ferri turns to the argument advancing Committee to Free Flamborough’s Roman Sarachman’s argument that rural Flamborough needs to retain Ward 14 to have an effective representation voice at City Hall.
OMB Exec Chair intervenes with some direction, but then withdraws his direction. The OMB Exec Chair in his withdrawn direction states that he saw Sarachman’s argument as there was an “agreement” that the former suburban municipalities would hold seven wards, and that Sarachman was not arguing that Ward 14 much remain as the rural ward, but that on the whole, the suburbs retain 7 of 15 wards.
Ferri tries to argue that adding a Mountain ward will not address the concern of visible minority representation and vote dilution as Dobrucki does not know what the impact of this would be on visible minorities as Dobrucki does not know where they live on the Mountain.
Dobrucki argues back that adding a mountain ward “by definition” increases the voting people of Mountain residents and the power of the visible minorities that live there.
Ferri asks if Dobrucki has done an analysis of how his wards will impact minority voters?
There is raised voice back and forth, Ferri presses the issue, and Dobrucki admits he has not done this analysis.
Ferri to Dobrucki – there are more minorities as a percentage of population in the Lower City, so why did you not add a ward in the Lower City?
Ferri: “Your real goal has nothing to do with minority voters, but vote dilution”
Ferri continues with a line of questions about why Dobrucki is only proposing a new ward on the Mountain, and not the Lower City. Dobrucki responds that it is the Mountain that is underrepresented, and not the Lower City.
Ferri asks why none of Dobrucki’s proposals contain major changes to boundaries in the Lower City, why he is respecting the existing boundaries there.
Dobrucki responds that history is important, and that “history is not a trump card” and there “has to be a point to change”
With this, we are now on lunch until 2pm.
(Note: I may have to increasingly go to point form this afternoon with gaps between updates. My learning disability is one of writing Dysgraphia, and I’m beginning to struggle with keeping up with the verbal arguments and writing at the same time.)
I’m noting that my language was less precise than I wish to be. The Council position is that minority representation issues are not important *to this hearing* as it was not considered as part of the review.
We’ll be back in about five minutes. Both parties have worked over lunch.
Dobrucki has sat down in the stand. The OMB panel is back.
Ferri now crossing Dobrucki on his views on protection of the rural areas.
Ferri looking to show Dobrucki is inconsistent on rural areas. Asks Dobrucki why he claims the City did not consider the Eastern rural areas, Dobrucki concedes he should’ve said insignificant.
Ferri asks a series of questions about the size of Ward 14, establishing that it is large and Dobrucki had proposed a large ward.
Now a series of questions to establish that as a resident of Ward 13 [Dundas] he does not have the same concerns on his property as a Ward 14 rural resident: Source water protection, quarries, and that Dobrucki receives municipal waste sewer service.
Now a series of questions to critique Dobrucki’s statements on the stand, and to show his is using opinion, and not an expert.
Ferri is now questioning Dobrucki on his maps that will split the community of Ward 8, which the City is arguing is one community and not a series of neighbourhoods, and that Ward 8 should not be split.
Dobrucki has argued that he maps should have the same weight on the splits of communities as the City’s maps as the City splits Ainslie Wood, and his splits Ward 14 into two groups, one to Ward 15 and one to Ward 13.
The City is now arguing the importance keeping Ward 8 together, and that Ward 8 is a strong community of interest.
The City is now arguing that neighbourhoods are not “communities of interest” and that Ainslie Wood is primarily something on a map, wheres Ward 8 is clearly a community of interest.
City is trying to argue that Ainslie Wood split does not divide community of interest, and is a good choice – whereas Dobrucki by proposing a South Mountain ward will divide the Ward 8 community of interest
The cross-examination is now complete.
Dobrucki’s case is now done.
The City is allowed to call witnesses to respond to Dobrucki, and it will call two.
First will be Gary Scandlan, then Dr. Robert Williams.
Scandlan is back on the stand.
Scandlan asked to provide his option of Dobrucki’s critique/criticism of the student population projections.
Scandlan says that Dobrucki is missing information in his student count numbers.
Ferri asks Scandlan to explain why the Watson projection does not have any non-permanent students living in Dundas.
Scandlan goes into depth on how they calculated the Ainslie Wood student population.
A key point is empty rental units at the census, which is very high in Ainslie Wood, and very low in Dundas.
Therefore Watson says the students in Dundas are counted in the census as they are residents during the census, and there is no need for an adjustment number for non-permanent student population.
Scandlan is now asked to analyze Rachel Barnett’s calculation. Scandlan says there are errors, adds they are “minor” “but important”.
He says there are errors caused by the differences between the census totals and the StatsCan household survey which is the source of the figures on visible minorities. The assumption is that the ~10,000 people difference is all non-visible minorities.
Scandlan concluded Barnett’s figure have about a 2% error on the surface.
Scandlan says he has done his own calculation, and put it into the Ward information.
Now Scandlan speaking to the flaw his data as he’s using 2011 StatsCan data for visible minorities, but 2016 data for census data.
Scandlan then applies Barnett’s calculation formula, “I was just applying it” (to clarify he is not endorsing Barnett’s formula). She gets “.918”, I get “.914” says Scandlan.
At the end of this series of critiques of Barnett’s work, the OMB Exec Chair says “Potato Potato” /pəˈteɪtəʊ/ – /pəˈtɑːtəʊ/ as in the same word pronounced differently.
Dobrucki now gets to cross Scandlan on his reply evidence. Doburcki using questions to Scandlan to re-affirm that Wards 10, 13, 14, 15 have below average numbers of visible minorities. That by giving Wards 13, 14, 15 their own Councillors with the smallest populations, this dilutes visible minority voter power.
Now a discussion on how Scandlan calculated student population, Dobrucki is trying to advance his argument student populations are underestimated in Dundas and East of the 403.
Dobrucki is now arguing that a student undercount means an undercount of visible minorities as students are more diverse than the general population.
An objection on Dobrucki’s line of questioning to Scandlan what is and is not a dwelling, Dobrucki asks if a house with locks on four bedroom doors would be four dwellings, it could be says Scandlan.
Ferri objects that housing types is not the experts area of expertise.
OMB Exec Chair says that in a cross “there is leeway, but Mr. Dobrucki should be mindful of the effectiveness of his questions”
Scandlan stands behind his Dundas figures, that there may be a handful, “up to 10” non-permanent student residents in Dundas.
Dobrucki back to arguments on the Ward 1 non-permanent resident student population.
Dobrucki is done his cross, Ferri is now redirecting by getting Scandlan to confirm he stands by his forecasts as an expert. He stands by his decisions as an expert.
That ends Scandlan’s testimony on the stand.
Now for afternoon break until 3:30pm
City team took the break in tight conversation, Dobrucki at his table organizing notes.
Dr. Robert Williams, expert on municipal ward boundaries on the stand as a reply witness for the City.
Ferri asks Dr. Williams to again explain why he as an expert witness endorses the City preferred boundaries as protecting communities of interest and why they are coherent wards that keep communities of interest together; whereas the Dobrucki alternatives split up communities.
(Dobrucki’s alternatives includes Watson & Associates maps)
Dr. Williams now argues – and this is new – that the City does not publish maps with neighbourhoods in Glanbrook, or Flamborough – this is why parts of Flamborough cannot be split combined with Dundas.
Then continues on why he thinks Dundas and Flamborough cannot be combined in a Ward.
OMB Exec Chair cuts this off, “this is not reply evidence, you are repeating points that have been well argued”
Ferri now asks Dr. Williams for his critique of Rachel Barnett’s paper. He says he does not believe that visible minorities are a “cohesive political entity”.
“It this a real part of the society that could be large enough that requires grouping”
Dr. Williams says this needs to be more thought about.
Now he asks if visible minorities are geographically cohesive that they could be included as a community for drawing boundaries around.
“I’m not sure yet if this [Barnett’s calculation and paper] are a technique that works”
Now Dr. Williams is using Scandlan’s visible minority calculations.
He says that visible minorities are not geographically grouped to create a ward, but that in some of the wards, they are a large enough group to make an impact in some wards.
Dr. Williams says Scandlan’s calculation shows that visible minority’s voting power gap will significantly decrease under the Council preferred boundaries.
Dr. Williams says that visible minority voter representation was not brought forth by the public during the Ward Boundary Review.
Dr. Williams now asked to explain the difference between vote dilution and effective representation – that dilution is only once every four years, whereas effective representation is about every day.
Dr Williams adds a sentence about having questions about the paper if it were submitted for publication in an academic journal.
Ferri starts a line of questions about the difficulty of creating non-geographical boundaries.
OMB Exec Chair cuts off, says they’ve heard these arguments.
Ferri ends his questioning.
Dobrucki now crossing Dr. Williams questions – getting Dr. Williams to answer what he means by the City Council preferred boundaries being the most coherent.
There is an objection from Ferri that the cross isn’t out of the reply arguments, OMB Exec Chair states the questions are proper as Dr. Williams made the coherence argument in his answers to Ferri.
Dobrucki now asking Dr. Williams questions on voter dilution. Dr Williams is somewhat evasive in his answers.
Doburcki is done.
OMB Exec Chair now gets to the issues of voter imbalance and dilution. Where is the acceptable standard for difference weight between votes. “A certain amount of dilution is acceptable, but at a certain point …” “In 14, there are nearly no visible minorities and their vote is more powerful, whereas visible minorities are in Wards 2 & 3”
There is a lengthy back and forth between Dr. Williams and OMB Exec Chair on Barnett’s paper; OMB Exec Chair is very complementary towards Barnett’s paper, says it makes a contribution.
And now the cases are done. Closing arguments are all that remains.
Closing arguments are at 10am here at the Stoney Creek Municipal Centre. Open to the public.
You can take the 10-BLine bus here. It will say “55 Stoney Creek Centre, Hwy 8 & Jones”
Departs University Plaza at 8:37
Main and Longwood 8:46
Main and John 8:53
Main and Ottawa 9:04
Arrives at Stoney Creek Municipal Centre at 9:34
And that ends today.