Hearing Wraps on Professional Planner's Independence

On March 16, 2018, the conflict of interest case against urban planner Mr. Victor Doyle, RPP MCIP, concluded before the Public Service Grievance Board. Mr. Doyle testified that the “case is about the right of professional planners in the Ontario Public Service to provide independent, expert analysis and advice to decision makers, elected representatives, and the public – without such opinion being manipulated, altered, suppressed or otherwise interfered with by non-professional superiors.”

In June 2017 Mr. Doyle was found in conflict of interest by the Ministry of Municipal Affairs for publishing a paper containing publicly available facts about the supply of land and ground related housing in the Greater Golden Horseshoe.

As counsel, Donnelly Law argued that Mr. Doyle upheld his duties under the Ontario Public Service Act and his obligations as a Registered Professional Planner in disseminating his paper entitled The Growth Plan and the Greenbelt Plan – Setting the Record Straight (the “Paper”) and engaging in a media interview about it. The Paper debunked industry myths about needing more greenfield land for ground related housing supplies to accommodate projected growth. These myths have finally, hopefully, been put to rest by Mr. Doug Ford’s latest endorsement of the Greenbelt.

Inexplicably and tellingly, the Ministry failed to call the Ethics Executive who made the original finding of conflict of interest and did not provide any written evidence, documentation or notes to explain or defend the finding. Rather, the Ministry proferred a single witness who testified they had no expertise in conflict of interest and had nothing to do with the finding against Mr. Doyle.

The witness’s only attempt to justify the finding of conflict – in which they clearly stated they had no involvement – was that the Paper created a perception of bias among some reasonable people, but then under cross-examination admitted the Paper “may” have only created a “risk” of a perception of bias.

The evidence at the hearing clearly showed that the paper received unanimous support from individuals associated with a wide array of stakeholders including municipalities, conservation authorities, civil society think tanks, environmental and agricultural organizations, and academia.

Despite this case being about conflict of interest – not bias, Donnelly Law subsequently argued in closing submissions that the unsubstantiated allegations of the witness fell well below the standard of evidence expected by Boards for finding bias.[1]

Mr. Doyle testified the sole purpose for releasing the Paper was to refute a public/media communications campaign by elements of the development industry involving inaccurate, selective and/or misleading statements that the Growth Plan and Greenbelt Plan were limiting the supply of land for ground related housing.  The detailed land and ground related housing supply calculations and analysis prepared by Mr. Doyle and his team of Ministry planners clearly showed this to be false and testified that is why industry lost every appeal to the OMB in which it sought more land for ground related housing during Growth Plan conformity exercises.

Mr. Doyle further testified that for several years prior to the release of the Paper, the Ministry suppressed this research and analysis, preventing the factual evidence from reaching the Premier, Cabinet, Ministers, public and the government appointed Advisory Panel (led by Mr. David Crombie) overseeing the Review. The numbers and analysis were therefore also omitted from Planning for Health, Prosperity and Growth in the Greater Golden Horseshoe: 2015-2041.

This suppression occurred despite an investigation, report and recommendations by the Integrity Commissioner of Ontario to the Secretary of Cabinet (all of which were accepted), to implement systemic changes in relation to the role of professionals in the civil service (in essence to ensure that the results of research/analysis were not censored by senior non-professionals).

This investigation arose in almost identical circumstances as the current situation where, in 2010, Mr. Doyle was found in conflict by the Ministry for publicly sharing research and analysis that he oversaw regarding development leap-frogging the Greenbelt into Simcoe County. Mr. Doyle testified that the ongoing suppression of the housing supply data/analysis occurred because of blacklisting by the Ministry in response to his challenge of the 2010 finding of conflict.

At the hearing, Donnelly Law also called as an expert Mr. Anthony Usher, Past-President of the Ontario Professional Planners Institute (“OPPI”).  In assessing the paper and the responses to it, Mr. Usher concluded that it was “a considered and thoughtful contribution to a critically important public debate”, and that “it contributed significantly to and filled a noticeable gap in that debate”.

Mr. Usher testified it was his opinion the Complainant complied with his Job Description in communicating with the public and media, did not reach his professional ethics and never engaged in conflict of interest activity.

The remedies proposed by Mr. Doyle are eminently reasonable. He seeks:

  • His good reputation restored by an Order or Declaration that he did not commit a conflict of interest by disseminating the Paper and a corresponding statement of contrition by the Employer;
  • An Order or Declaration that the finding and associated directions were a reprisal for his 2010 Disclosures (regarding his restriction in Simcoe County);
  • Recommendations for the Employer to consider and implement procedural improvements in its process and procedures to protect planners from future spurious findings of conflict of interest.

Granting these requests will help address the recommendations of the Integrity Commissioner of Ontario (referred to above) in regard to clarifying the role of professionals in the civil service to, in the words of the Commissioner, ensure ”that steps must  be taken to minimize the risk of something like this happening again in the future“ (Office of the Integrity Commissioner Annual Report, 2013-2014).

This in turn will allow Mr. Doyle, the OPPI, civil society and, hopefully, the government to meaningfully pursue additional remedies to address the systemic issues this case has raised including:

  • Creation of an Office of the Chief Planner for Ontario– similar to the Chief Medical Officer of Health – where that officer can speak freely, to provide complete, independent, credible, unbiased and factual information - without any fear of reprisal or opportunity for suppression (Note: written evidence included a Statement from Dr. David Mowatt, former Ontario Chief Medical Officer of Health, supporting for the creation of such an office);
  • That the office of the Provincial Development Facilitator be repurposed so that it longer deals with any land specific files/applications; and
  • That on leaving the civil service, senior public servants (Deputy/Assistant Deputy Minister) be subject to a 5 year “cooling off” period prior to being allowed to work for private development interests.

There are three critical public interest reasons for granting the relief requested:

  • The broader public interest is at risk when professional planners and other government experts are silenced;
  • Taxpayers are short changed by having information, research and analysis suppressed – in relation to the ability for this to inform better decisions, getting value for their investment in such experts, and in being able to hold governments to account; and
  • Tens of billions of dollars of infrastructure investment, tens of thousands of hectares of farmland (among the best in Canada), and the quality of our environment and human health are put at risk by bad planning decisions.

The Harper government was justifiably criticized for silencing federal climate change scientists. Ontario should not go down the same road with planners, some of whom are our last line of defence against the impacts and costs of continued sprawl.

A decision is expected within the next few months.

[1] In Ottawa (City) and CIPP (Cooper), Re, 2015 CarswellOnt 15658, 124 C.L.A.S. 300, Ontario Arbitration held that there was “no evidence” to support the allegations made by the Employer and therefore the allegations could not be accepted by the member.

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