Ontario Municipal Board Hearing on Hamilton Ward Boundaries Day 7 – Final Arguments [LiveBlog]

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Handout/City of Hamilton

Hamilton's Ward Map from 2000 to 2018

After two days of pre-hearing, and seven days of hearings, the Ontario Municipal Board case reviewing Hamilton’s ward boundaries enters closing arguments today.

The City will argue first, then Rob Drobucki – the appellant – will make his argument, the City gets the last word in reply, and then the OMB will adjourn to make its decision which will be released in the coming weeks.

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, with Brendan Ruddick and Cindy Yi, both associates 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 27, 201709:58

And the final day is about to begin.

Joey Coleman October 27, 201709:59

Present is Larry Di Ianni, former Mayor of Hamilton (2003 to 2006)

Joey Coleman October 27, 201710:02

City hands the OMB their package of authorities they are referencing. Steven Ferri is now making his final arguments.

Joey Coleman October 27, 201710:05

Ferri: Wards “should not be the simple act of arithmetic” but instead the result of detailed consideration, consultation, and that considers communities of interest, and weights competing factors.
Ferri says Council’s solution is a local solution, and the Board should respect and defer to it. Wards should be a local solution, not imposed from outside by the OMB.

Joey Coleman October 27, 201710:06

Ferri: If the Board finds the City acted reasonably, the Boards consideration must end there.

Joey Coleman October 27, 201710:09

Ferri now explaining how the new preferred (settlement) boundaries were properly implemented by the Council, and widely distributed to the public.
Ferri argues that the Case Law is clear, that the decision of Council must be given difference, and that the OMB is to review for reasonableness, not substitute its own judgment by determining correctness.

Joey Coleman October 27, 201710:11

Ferri now citing case law on reasonableness – in legal argument, he is arguing for the OMB to weight its review to the process, and not the decision resulting from the process.

Joey Coleman October 27, 201710:13

Ferri argues that the Board must give significant deference to the Council on Ward Boundaries, they are not the type of review common to the OMB under the Planning Act.
(Ferri used many legal Latin terms in this argument, my attempt to explain is imprecise due to my lack of knowledge of these Latin terms)

Joey Coleman October 27, 201710:16

Ferri is now arguing the Carter decision, and that voter parity is not the standard for creating boundaries, and that true voter parity would diminish effective representation.
Council properly weighted Carter in creating their criteria for Wards.
Ferri is keeping his closing argument very tight, and carefully referencing case law in each point.

Joey Coleman October 27, 201710:18

Ferri argues that the Board must use the Council criteria, that the Council wards meet the criteria, the criteria does allow for some voter dilution, and must be approved by the Board.

Joey Coleman October 27, 201710:18

Ferri now citing the expert opinion of Dr. Williams who supported the Council preferred boundaries as the best option.

Joey Coleman October 27, 201710:19

Ferri now citing Dr. Williams on all the criteria, that Dr. Williams says the voter parity deviations are justifiable as they protect communities of interest.

Joey Coleman October 27, 201710:22

Ferri arguing, citing case law, that population projections must be weighted as a justification for current deviations in populations as many of the deviations are forecast to decrease significantly by 2026.

Joey Coleman October 27, 201710:23

Ferri now arguing that Ward 14’s rural community of interest is justified in have less population due to the size of the Ward, citing the Carter decision, and Dr. Williams testimony.

Joey Coleman October 27, 201710:26

A slight comic relief, Ferri accidentally mixed his notes from a past cross-examination in the documents he gave to the OMB Exec Chair.
Exec Chair says “I did not read the notes” (important for procedure), Ferri takes them “my apologies Mr. Chair”, Exec Chair “I’ve left grocery lists in more embarrassing places”

Joey Coleman October 27, 201710:27

Ferri now arguing past decisions that upheld ward boundaries along former municipal boundary lines.

Joey Coleman October 27, 201710:29

Ferri now citing a OMB case that approved wards that were rural and deviated more than 25% from the average ward population in order to protect rural communities of interest.

Joey Coleman October 27, 201710:31

Ferri is now arguing the 2003 Ottawa v. Osgoode Community case where the Board overturned Ottawa wards in favour of protecting the rural community of interest.

Joey Coleman October 27, 201710:32

Ferri now argues that Dr. Freeman and Dr. Williams cited that a rural ward is a community of interest because of source water protection, lack of sewers, and the Greenbelt.

Joey Coleman October 27, 201710:32

Ferri is now directly challenging Dobrucki’s arguments.

Joey Coleman October 27, 201710:33

On the student community of interest argument, Dr. William on the impact of changes to student community of interest is that it only makes a small change to the overall voting power of this community, and that in fact it could give them a greater voice by giving them two representatives on Council.

Joey Coleman October 27, 201710:35

Ferri says Dr. Williams found that the move of part of Ward 1 into Dundas is justified as it protects the rural community of interest.

Joey Coleman October 27, 201710:36

Ferri now onto Dobrucki’s arguments against the GIS data and forecasting data. A very short argument that what errors were found did not change the outcome of the process. (This was clearly accepted by the Exec Chair during testimony)

Joey Coleman October 27, 201710:36

Ferri now arguing the City’s Ward Boundary Review process was robust, far-reaching, and provided more than required opportunities for the public to engage in the review.

Joey Coleman October 27, 201710:38

Ferri now citing case law to establish that the process was effective, and that based upon this process, the OMB must defer to Council’s decision and not impose its own decision.

Joey Coleman October 27, 201710:42

Ferri making a series of arguments and citation of cases to further establish OMB must defer to Council.
Case law that says Council is allowed to determine its own boundaries, “that is it not improper” that the Legislature “has opted for local solutions where Council is directly involved”

Joey Coleman October 27, 201710:47

Ferri now addresses the Dobrucki argument that since Council decided their own boundaries, they should’ve reviewed all submissions to the Ward Boundary Review. Ferri notes the public had the opportunity to submit directly to Council, not just the Review, and that Dobrucki himself availed himself of this when he delegated to Council exactly one year ago to today.

Joey Coleman October 27, 201710:50

Ferri now arguing that Dobrucki is incorrect in his assertion that the City is not required to release GIS data to the public, that that would be unworkable.
Exec Chair asks his first question:
‘Wouldn’t releasing the data increase public confidence, help find errors – such as were pointed out in this hearing – and make for a better process’?
OMB Exec Chair used the term “admirable” to describe residents who become deeply engaged in the process.

Joey Coleman October 27, 201710:53

Ferri argues that if the appellant wanted the GIS data, he should’ve filed Freedom of Information request.
OMB Panel Member interjects, ‘nowhere in the documentation do I see a City response to the request, nor does the City advise the appellant to file a MFIPPA request”

Joey Coleman October 27, 201710:54

Back and forth, in which Ferri argues the City has a “robust Freedom of Information section in the Clerks office” which is very responsive and would’ve fulfilled a request from the appellant.

(In fact, the City’s FOI office is the worst ranked municipal office in the country. In the recent Newspapers Canada audit of FOI offices, the City of Hamilton did not even earn an F)

Joey Coleman October 27, 201710:55

(Interesting exchange on that issue, I did not see it as one that the Board was very alive to. If the OMB rules that data must be provided, it will be a landmark decision for open data and information age public engagement)

Joey Coleman October 27, 201710:58

Ferri now arguing that Dobrucki did not advance any arguments that show homogeneity between the rural and suburban areas.
Ferri is arguing the Ottawa case, in that the Wards the OMB overturned there put too much emphasis on representation by population to the harm of communities of interest especially the rural community of interest.

Joey Coleman October 27, 201710:58

Ferri now argues – citing case law – that the Board should not substitute its own judgment in place of Council as they risk harming communities of interest and removing their voices from having effective representation.

Joey Coleman October 27, 201711:01

Ferri says the Ottawa case is “particular relevant to [the Board] due to the similarities between the communities”.

Joey Coleman October 27, 201711:02

Ferri is now reinforcing Dr. Williams testimony on the unique factors and character of rural Flamborough.

Joey Coleman October 27, 201711:04

OMB Panel Member: what rural interests need protection at City Council, you cite Source Water which is regulated by the Greenbelt – it seems this is provincial. “They can’t rewrite the Source Water Protection Act, can’t rewrite Greenbelt Act”
Panel says that if combined with a Dundas Councillor, an urbanist Councillor cannot impose urban views on the rural act due to the Greenbelt protection.

Joey Coleman October 27, 201711:05

OMB Panel Member adds that if there wasn’t Greenbelt, she be more inclined to see need for local Council rural protection. “In this context, there’s a lot of constrains that limit how Flamborough can change”
“How are you at risk from being combined with Dundas?”

Joey Coleman October 27, 201711:07

Ferri counters that rural ways of life are different, that people come to their local Councillor on Provincial legislation, and they need to understand the issues of the rural area. Says his case law will show this, and the panel will see this in the case law submitted.

Joey Coleman October 27, 201711:09

(A reminder that questions do not necessarily reveal a leaning, OMB may engage in argument for showing they are alive to an issue. Especially in this case where the City may take this to the Divisional Court on an appeal)

Joey Coleman October 27, 201711:13

A unfriendly exchange between parties; Ferri argues that Dobrucki does not concern himself with the concerns of the rural area. Ferri withdrew one statement earlier. In this statement, Ferri said Dobrucki is a Ward 2 resident.
Dobrucki interjects that he lives in Ward 13. Ferri corrects then, unpleasantly, states “You can wait until the end of my [closing] to correct me”

Joey Coleman October 27, 201711:13

Ferri argues that Ward 7 and 8 must remain the same
“All the people from Ward 8 who attended this hearing support the
Council preferred boundaries … despite their population. They are not
concerned about vote dilution, they are concerned with keeping their
community together”

Joey Coleman October 27, 201711:16

Ferri: “The City’s position is that the representation of visible minorities is not an issue that should be considered in ward boundary reviews, it is”
Ferri says this is separate from vote dilution, and the issues should not be “conflated”
OMB Panel Member “They are not unrelated”
Ferri refers to “Ms. Barnett’s thoughtful submission”

Joey Coleman October 27, 201711:19

Ferri argues there are many factors to consider on determining communities of interest, the City is focused on “effective representation for the people of Hamilton considering and weighting many factors”
Ferri argues that the City’s preferred boundaries will result in a 44% reduction in vote dilution of visible minority voters by 2026.
As such, the City’s boundaries are justified and addressing the issues.

Joey Coleman October 27, 201711:19

I’m going point form as OMB Exec Chair engages the issue.

Joey Coleman October 27, 201711:22

I’ll need the lunch break to summarize the discussion on visible minority representation. Apologies.

Joey Coleman October 27, 201711:32

OMB Exec Chair is strongly supporting Barnett’s paper as important to the Board, Ferri is trying to minimize its value. This is a very strong exchange, strongest by far thus far in the hearing.

Joey Coleman October 27, 201711:38

Ferri is very complimentary to Barnett, while trying to minimize the damage her work does to the City case. What I can’t tell is if this is his admiration for her work, him reading the OMB’s admiration of her work, and what is the combination of the two.
Barnett’s work and presentation has turned out to be the most substantive of the OMB case.

Joey Coleman October 27, 201711:38

(Again, on the exchanges, I’m in my point form note form, and will summarize that for you at lunch)

Joey Coleman October 27, 201711:42

The City has lost this argument, the City is continuing to argue on the Barnett paper. Here’s a key quote from the OMB Exec Chair on protection of minorities “That’s okay to say about the rural area, but other communities than the rural area are not deserving of protection”

Joey Coleman October 27, 201711:45

City says they never said that visible minority issues were not important, that it was not considered. OMB Panel Member challenges this, says that was the evidence the City presented, that they had not considered visible minority community of interest in its calculation of the review.
City says that kind of analysis wasn’t done for any sub-group.
OMB Exec Chair “I think it was done for one group”, then cuts himself off.
Ferri counters, “would you like to show me that so I can counter?”
OMB Exec Chair says he’s been open with his thoughts, and that they are testing his case.
(It was very clear – at least to me – that the one group he refers to before cutting himself off was the rural interest of Ward 14)

Joey Coleman October 27, 201711:46

OMB Exec Chair goes to great length to state “let it be known to those who write academic papers on this case in the future …. that we were alive to and gave great consideration to this issue [visible minorities]”.

Joey Coleman October 27, 201711:47

There is much in that exchange I need to summarize for you at the lunch break. That was 30 minutes of debate.

Joey Coleman October 27, 201711:49

Ferri is now citing case law that diminishes the weight of the testimony from Dobrucki. OMB Exec Chair and Ferri have some back and forth. OMB Exec Chair “we understand your point”

Joey Coleman October 27, 201711:50

Ferri now listing the issues list, and that the OMB adopt Council’s preferred boundaries.

Joey Coleman October 27, 201711:51

Ferri asks the Board find the City is not required to release GIS data.

Joey Coleman October 27, 201711:53

City spending much time arguing against the OMB setting a new standard requiring the release of GIS data.

Joey Coleman October 27, 201711:56

And the City is done it’s closing argument. The City does get to reply to Dobrucki’s closing statement, hence the final word later today.

Joey Coleman October 27, 201711:56

Lunch will be two hours, we’re back at 2pm.

Joey Coleman October 27, 201711:59

I’ll get the summary of the 30 minutes on the visible minority issue done over the lunch. I need to take a break.

Joey Coleman October 27, 201713:30

[Here’s my summary of the 30 minute debate on visible minority representation, the summary starts when the OMB started asking questions. The reference point in the liveblog below is “I’m going point form as OMB Exec Chair engages the issue”]

OMB Exec Chair opens by stating “Roman Sarachman’s analyis was very useful to the Board”, that Sarachman (of the Commitee of Free Flamborough) provided a good overview of “The Agreement” which the Exec Chair explains is not “a written one” but a handshake agreement that set the balance of power between the former County and City. (The current wards)

OMB Exec Chair states “That was then, this is now”. Adding maybe the “the agreement needs to be rewritten”

OMB Exec Chair challenges the City position that they’ve thought about visible minor representation.
“You’ve been worried about the dilution of the rural voice, what about the visible minority voice?”

There is an exchange during which the City tries to argue against Barnett’s paper, saying that it has shortcomings. OMB Exec Chair and Ferri go back and forth, and OMB Exec Chair concludes this discussion by stating clearly that it is “a credible paper”.

The City then argues that visible minorities are spread across the City, and do not form a geographical community, whereas the rural area is a clear community of interest with clearly defined needs wherea visible minorities as a group have various interests.

The OMB Exec Chair responds: “We now have a visible minority interest that has grown over the years”. (I see this as building on his earlier statement that the agreement needs to be rewritten)

OMB Exec Chair adds that as visible minorities “reside in wards with less power, then have low power”

“In Ottawa they worried about the lose of voice in the rural areas … Just like the rural people will lose their interest, Ms. Barnett argues the same will happen for visible minorities due to voter diliution”.

Ferri argues the dilution does not prevent effective representation as at a ward level, they are not diluted as in some wards, visible minorities are up to 27%. They can use this group to potential elect a Councillor.

Ferri then argues that if visible minorities were spread across the City, they would be 14.9% and even with voter parity, they only have a 14.9% chance of electing someone – and therefore voter parity, and equal weight would harm the interests of visible minorities.

“If the City had a ward with 51% visible minorities, even if that ward has a 0.8 city-wide voter power, visible minorities would have better representation” as they would have a seat on Council, whereas with true parity they will not.

Ferri then argues that Barnett’s paper cannot be used at a ward level.

There is a series of exchanges, Ferri lists the reasons the City says Barnett’s formula cannot be used to calculate visible minority voter dilution at the ward level.

OMB Exec Chair “I’m not agreeing with you”, then pulls out and displays a piece of paper stating Dr. Williams used Barnett’s formula at the ward-by-ward level. (Dr. Williams applied Barnett’s formula to the ward level yesterday as the City attempted to argue the paper is flawed)

There’s an exchange about the merits of the formula, Ferri argues that Barnett’s formula cannot be used at a ward level and that the City used it at a ward level to reveal this flaw. The Exec Chair responds “are you reading from the same chart I’m reading from”. After a brief back and forth, this ends with Ferri being very complimentary to Barnett.

[This is the point in the liveblog below where I wrote “Ferri is very complimentary to Barnett, while trying to minimize the damage her work does to the City case. What I can’t tell is if this is his admiration for her work, him reading the OMB’s admiration of her work, and what is the combination of the two.
Barnett’s work and presentation has turned out to be the most substantive of the OMB case.”]

Joey Coleman October 27, 201714:01

The afternoon session is underway. Dobrucki is now making its closing argument.

Joey Coleman October 27, 201714:02

Dobrucki says his approach has been to look at how to apply the Carter case, and that relative parity is important that can be departed only when they are clear overriding reasons.

Joey Coleman October 27, 201714:04

Dobrucki argues that the City is claiming that so long as they have any reason, no matter the reason, they can departure from relative parity as much as they want .

Joey Coleman October 27, 201714:10

Dobrucki now debating case law that lead to Carter, which Dobrucki argues gives context to Carter that shows there needs to be justification for significant population variation, and that the City bares the burden of proving the justification for their decision to have 2-to-1 voter variation with some votes worth twice that of others.

Joey Coleman October 27, 201714:13

Dobrucki says the City has failed to prove overriding reasons why Ward 14 needs the overwhelming voter imbalance to protect their interests.

Joey Coleman October 27, 201714:16

Dobrucki now addressing if Dr. Freeman is an expert on Hamilton history.
Dobrucki argues that Dr. Freeman stated he only consulted with the current Councillors of Wards 12, 13, & 14.
That Dr. Freeman failed to show a level of expertise on Hamilton.

Joey Coleman October 27, 201714:17

Dobrucki says the City showed that each ward was unique, but each ward is unique when you look at specific factors, the City has failed to show why the rural interest should be the “trump card” over all other interests.

Joey Coleman October 27, 201714:20

Dobrucki now argues that not only did the City failed to show why there needs to be an overrepresentation of Ward 14, let alone double voting power?

Joey Coleman October 27, 201714:23

Dobrucki now arguing the City’s contradiction in Dr. Williams stating he was not aware that Ainslie Wood was a neighbourhood until public statements on Tuesday at this hearing. How is this possible when Ainslie Wood is clearly marked as a neighbourhood on City maps?
Why did the City split Ainslie Wood? It seems it was only to add population to Dundas to bring the population of Ward 13 barely above 75% of the average population, to try and meet the City’s +/- 25% criteria.

Joey Coleman October 27, 201714:28

Dobrucki now arguing what he says are city contradictions on population sizes and ward sizes between the Eastern Suburbs and the Western Suburbs.
That the the +/- 25% must serve a policy purpose. That if a Ward is at 75% of average and isn’t forecast to grow, it’s population should be set to 105% of thereabouts. Dundas will go below 75% in 2026 when it will be 69% of an average ward population.
Dobrucki says City argues that Ward 11 should start below average at 65% because due to growth it will experience
“What is good for the goose is good for the gander” – the City is trying to have it both way Dobrucki states

Joey Coleman October 27, 201714:32

Dobrucki now argues that the Mountain should have four seats on Council, but are only assigned three, whereas the Dundas-Flamborough have the population for two seats, but get three Council seats. This means a Mountain votes is worth half the vote.

Joey Coleman October 27, 201714:37

OMB Panel Member asks Dobrucki to explain why he thinks the suburban areas will still be represented if not only the rural ward is eliminated [as in his proposals] and a new ward created on the Mountain.
Dobrucki says the City argues that the split of Ainslie Wood will give the student community two voices, and the “what is good for the goose is good for the gander”

Joey Coleman October 27, 201714:40

OMB Exec Chair adds:

Sarachman’s statement wasn’t as much about the rural voice, but his analysis was, he called it the “consolidated towns” … his analysis was not only was the rural voice speaking for the pristine area of Flamborough, but also for all those areas that are not old City of Hamilton.

“That was the peacekeeper, that let it [amalgamation] take place without an armed resurrection … I’m exaggerating for drama effect”

Joey Coleman October 27, 201714:43

OMB Exec Chair: “for them the deal [8-7 City/County on Council] continues for as long as they believe it should protect them from the city”
“When should the agreement end?”

Dobrucki: There was a time when every county had one seat in the Legislature, Perth had one seat, York – which includes Toronto – had one. No one is suggesting that is proper today. “Time moves forward”, he says its time to move past the amalgamation deal.

Joey Coleman October 27, 201714:46

Dobrucki tries to make an argument against the Watson & Associates population projections. A full debate ensures on the merits of the projection, the properness of the matter for closing arguments, a procedural debate ensues, Dobrucki is told he’ll be “closely” policed in the matter.
The Board is told you that a prediction cannot be taken as fact, only prediction.

Joey Coleman October 27, 201714:50

Now Dobrucki is arguing the demographics of Wards compared to each other, stating that Wards 12 to 15 have higher education levels, higher than average incomes. The City objects, saying this is new evidence.
Procedural debates ensues, OMB rules that because Dobrucki did use calculations in saying a “[number] percent more than” other specific wards, it is new evidence, that he can speak to Ward profiles, but without any calculations.
Dobrucki uses Dr. Freeman’s statements to advance his argument that Wards 12 to 15 are not a disadvantaged minority.

Joey Coleman October 27, 201714:52

Dobrucki argues that Carter’s protection of minority criteria must be read as protection of a disadvantaged minority, not just any numerical minority.

Joey Coleman October 27, 201714:53

Dobrucki is now advancing arguments on voter dilution, and the Barnett paper.

Joey Coleman October 27, 201714:56

Dobrucki’s current lines of argument are seemingly disorganized, he is correcting himself repeatedly as he tries to protect the Barnett paper. He’s trying to say the paper is valuable for the Board to consider.

Joey Coleman October 27, 201714:58

Dobrucki now arguing on population count projections and student undercount.

Joey Coleman October 27, 201714:59

Dobrucki’s present line of argument is to advance the cause of his own proposed ward maps.

Joey Coleman October 27, 201715:04

Dobrucki delivers a series of questions on how Dr. Williams ranks ward proposals. This is a group of exhibits I don’t have access to.
The argument is to advance the cause of Dobrucki’s ward boundaries.

Joey Coleman October 27, 201715:10

Dobrucki is making arguments in his closing arguments that Ferri believes is new evidence, he is objecting a few times.
The OMB Exec Chair ends the objections by stating closing arguments are the time for arguments on the matters that were in front of the board, Ferri says the arguments were not made when Dobrucki was on the stand.
OMB Exec Chair says his notes show this arguments were made “I have scribbles on my page to these points … I didn’t make them on the break … it clearly happened during testimony”

Joey Coleman October 27, 201715:10

OMB Exec Chair does end Dobrucki’s series of arguments on option ranking “you are not telling the Board anything we are not already aware of”

Joey Coleman October 27, 201715:15

Dobrucki is now arguing about where boundaries are draw, how communities, how neighbourhoods exist to advance his own ward boundary alternatives.

Joey Coleman October 27, 201715:21

OMB Panel Member asks Dobrucki if he is familiar with the standard of reasonableness that is material to the OMB.
Dobrucki says the City’s Ward Boundaries are a “violation of the Charter”. The OMB Exec Chair stops the hearing “we have a problem here”
“We cannot proceed on a Charter matter, I don’t see the Attorney General here”
Dobrucki apologizes, withdraws and says he is arguing the Carter case.
OMB Exec Chair “That’s good, because otherwise I have to call my boss [the Attorney General of Ontario]”

Joey Coleman October 27, 201715:22

(The City just got grounds to argue in front of the Divisional Court that the Board granted the appellant guidance. It’s for a court to decide its meaning, but the argument is now live)

Joey Coleman October 27, 201715:28

Dobrucki now arguing the City cannot justify that the rural interests in Western Hamilton despite special representation but not the Eastern Hamilton rural interests.
Dobrucki now arguing after the Ottawa v. Osgoode community decisions

Joey Coleman October 27, 201715:32

Dobrucki says there are significant differences between 2003 Ottawa v. Osgoode such as in Ottawa, the task force creating the wards was instructed to merge rural and suburban areas across boundaries, that matters of voter dilution were not considered by the Board in that case.
There is a debate between the OMB Panel and Dobrucki about how the OMB considered Carter in the 2003 decision.

Joey Coleman October 27, 201715:36

Dobrucki now enters the Kingston decision that found students were a community of interest that is a minority requiring protection of their community in gaining effective representation. Dobrucki argues the Board should intervene to ensure the McMaster student community is a minority group requiring the OMB to ensure their effective representation.

Joey Coleman October 27, 201715:38

“Wherever the acceptable variation is, a two-to-one variation is not” – Dobrucki on why the Board must intervene to address voter disparity and dilution.

Joey Coleman October 27, 201715:47

A series of arguments on case law, cases in front of the Board in binders, I wasn’t able to keep track.

Joey Coleman October 27, 201715:50

Dobrucki “In conclusion” The City bares the burden to prove the merits of its overrepresentation of the western suburbs to the eastern suburbs, that Council went with the “path of least resistance” by not eliminating a current Council seat among their peers and this political interest was not a criteria of the review. The City has failed to meet the test of proving that overrepresenting Dundas-Flamborough overweights the impact of decreasing the power of other voters.

Joey Coleman October 27, 201716:00

OMB Panel Member asks how Dobrucki responds to the City’s evidence that the Eastern and Western suburbs are significantly different. He cites the City statement from Councillor Ferguson that Ward 12 is well represented with both urban and suburban parts. It’s not a direct answer to the question.

Joey Coleman October 27, 201716:00

With that Dobrucki’s closing is done. (About five minutes ago, sorry, I ran out for the break). We were on break for five minutes, scheduled back now which is 4pm

Joey Coleman October 27, 201716:01

Ferri says it will take about 15 minutes for his reply to the Dobrucki closing, and then this hearing will be complete.

Joey Coleman October 27, 201716:02

Board is back, Ferri is at the lectern and making his reply.

Joey Coleman October 27, 201716:04

Ferri is now citing case law that allowed for a larger than 2.0 variation in political boundaries. (I think it is wards, but I’m not 100% sure as it is a citation and could another type of boundaries)

Joey Coleman October 27, 201716:05

Ferri says Dobrucki relies about conjecture, as the City’s new wards will actually improve voter representation by decreasing voter dilation over the next three elections.

Joey Coleman October 27, 201716:08

On population projections and student population in Dundas, Ferri says Dobrucki is using opinion and conjecture; whereas Scandlan used details models, building permits, and interviews with the university.
If the Board grants Dobrucki that there are more students in Dundas, then the City’s case is advanced by an increase population in Dundas.

Joey Coleman October 27, 201716:10

Ferri argues that Dobrucki’s proposals are to split Flamborough and Wards 7 & 8 [extra ward on the Mountain] but then argues the City is unreasonable to split Ainslie Wood.
Ferri says Dobrucki proposes to split the Ward 8 Italian Canadian community, and says they are too dispersed to form a community of interest, but then argues that visible minorities – who are dispersed – are a community of interest.

Joey Coleman October 27, 201716:14

Ferri argues there clear differences between the Western and Eastern areas of Hamilton, as articulated by Dr. Williams. That Dr. Williams took the Board in his expert testimony the Council preferred boundaries are the superior choice to protect the communities of interest, and that Council had originally planned to keep Ward 11 with all the rural areas, but this caused a significant population deviation by overpopulating the Ward. In fact, Ferri argues, says the City by amending to the preferred boundaries is responsive to Dobrucki’s concerns about population in each ward.
Ferri says it is not possible to create another rural only ward in the East, the City had looked at it.

Joey Coleman October 27, 201716:16

Ferri submits that the Council preferred settlement boundaries respond to many of the concerns Dobrucki is trying to advance.

Joey Coleman October 27, 201716:18

Ferri is citing a case in the references book, I don’t have it. I’ll try to determine the argument.

Joey Coleman October 27, 201716:19

Ferri saying that a case Dobrucki cited to advance his case does not advance his argument of communities of interest, and the case is not applicable.

Joey Coleman October 27, 201716:21

Ferri submits that Kingston (student community of interest) boundaries were only overturned because the OMB found Kingston did not include a student undercount, and that the process was unreasonable. Hamilton did do a student undercount, and carefully considered students. It was Dr. William’s expert opinion that the “small change in student population in Ward 1 would not negatively affect their access to effective representation” They will remain 25% of the Ward 1 population.

Joey Coleman October 27, 201716:24

Ferri now argues that there is a significance difference between Flamborough and Ainslie Wood. That Dobrucki tried to argue that because the City argued the Ainslie Wood split could result in student having potentially two voices on Council, that Flamborough’s rural area could have two if split in a Dobrucki option – they are not comparable.
Ferri says Dobrucki failed to argue that students were a community of interest.

Joey Coleman October 27, 201716:25

Ferri closes with the request that the OMB implement the Council preferred boundaries.

Joey Coleman October 27, 201716:25

“This concludes the hearing of the Ontario Municipal Board” says the OMB Exec Chair.

Joey Coleman October 27, 201716:26

OMB Exec Chair “You should be getting a decision from us as soon as we can make it available to you”

Joey Coleman October 27, 201716:26

Thank you everyone for following along the past few days.

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