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.
David Donnelly on Greenbelting Halifax
David was recently invited to Halifax to speak about greenbelting Halifax. Condemning mushrooming suburban growth as a “great failed experiment,” Toronto-based attorney David Donnelly is joining forces with the Our HRM Alliance to push for a full-on greenbelt around Halifax.
Our HRM Alliance says that a greenbelt would both preserve local ecosystems and redirect growth to downtown cores, suburban main streets and rural areas across Halifax Regional Municipality.
“The planner in me says: get the true cost-accounting of urban sprawl and then your decision is easy. Let people live downtown and in existing settlement areas and save taxpayers a lot of money,” Donnelly told the Chronicle Herald.
Read the full article here: http://thechronicleherald.ca/novascotia/1433531-ending-urban-sprawl-can-make-you-happier-says-expert
Lengthy opening day at Burl's Creek OMB climaxes with tense cross examination
On Tuesday May 24, 2016 the Ontario Municipal Board ("OMB") hearing on the temporary use by-law application for Burl's Creek Event Grounds begun. The hearing began with Burl's Creek calling Mr. Henry Regelink, an Oro-Medonte farmer, Sgt. Guiseppe Pileggi, an OPP Officer summonsed by Burl's Creek, a brief introduction by Mr. Darren Vella, a land-use planner for Burl's Creek, and Mr. Peter Thoma, a land economist and market expert.
Most notably, Mr. Thoma had told the board it was not reasonable to put the Wayhome and Boots & Hearts festivals anywhere else besides Burl's Creek. He came to this realization by both examining other concert festival sites in the province, including Canadian Tire Motor Sports Park in Clarington and Downsview Park in Toronto.
Mr. David Donnelly didn't think Thoma had looked hard – or far – enough. If the majority of the concert goers were coming from points south of the Holland Marsh, he said, why have them travel so far north?
“It would have been actually more convenient for people to come to a festival in King City than it would be all the way up here in Orillia?” Donnelly opined. “That's where they live.”
The cross-examination of Thoma was at times tense, with the land economist often appearing unamused with Donnelly's line of questioning.
Read the news coverage here.
The Fight to Protect Agricultural Land in Oro-Medonte Continues
On April 29, 2016, Donnelly Law represented WORA and SaveOro at the third prehearing conference for the Burl's Creek Event Grounds Inc. et al. temporary use by-law application. Donnelly Law brought a motion requesting a prohibition order, amendments to the procedural order on the basis of procedural fairness, and the recusal of the Board Member. The Orillia Packet & Times reported on the prehearing.
Read the news coverage here.
Halton Region Passes Unanimous Resolution to Legislate Against SLAPP Suits
In a unanimous 20-0 vote, Halton Region Councillors voted to send a message to Premier Kathleen Wynne, asking that she re-introduce Bill 83, An Act to Amend the Courts of Justice Act and the Statutory Powers Procedure Act in order to protect expression on matters of public interest. The Resolution reads in part: "THEREFORE BE IT RESOLVED THAT the Council of the Regional Municipality of Halton advise the newly elected Premier of the Province of Ontario, the Honourable Kathleen Wynne, and its local members of Provincial Legislative Assembly of its support for the protection of Public Participation Act, 2014 and request that Bill 83 be re-introduced forthwith in the Legislature"
The Resolution was most likely adopted in response to two recent events: Members of the Rural Burlington Greenbelt Coalition (and Donnelly Law clients) were SLAPPed with a $100,000 defamation lawsuit for speaking out against continued dumping of large amounts of fill, contrary to Burlington’s by-laws; and Burlington Council recently also unanimously adopted a Resolution asking Queen’s Park to make anti-SLAPP legislation a priority for the new session.
Read the recent article in the Hamilton Spectator found here.
King Council Opposes Bid for Rural Banquet Hall
By Angela Gismondi The King Weekly Sentinel
August 27, 2013
An outdoor banquet facility and children’s camp do not belong on environmentally protected lands. That was the decision King council reached at a council meeting Monday. In a recorded vote, councillors voted unanimously to oppose the development, proposed to be located on the Oak Ridges Moraine in King. The official plan amendment and zoning bylaw amendment applications were submitted by the applicant, Peter Eliopoulos. The applicant was looking to house an outdoor banquet facility and children’s camp on a 49-hectare (121-acre) parcel of land located at 3550 18th Sideroad. The property is located on the west side of Highway 400 between the 18th Sideroad and Lloydtown-Aurora Road.
Read the article on this proposal, opposed by Donnelly Law’s client the Stewards of the Moraine Inc., here
Seaton Development: Traffic and Fiscal Concerns Continue
Donnelly Law represents the Whitevale and District Residents' Association ("WDRA") at the Ontario Municipal Board hearing set to resume May 27 regarding the Seaton Development. At this third phase of the hearing, WDRA's concerns involve transportation issues for Pickering as a whole, fiscal impacts of the development on Pickering and heritage issues in the plans of subdivision. You can read more about WDRA's concerns and the status of this development here, in the April 24, 2013 edition of the Durham Region news: http://www.durhamregion.com/news/article/1608928--pickering-s-seaton-complaints-head-to-omb
Proposed Amendment 1 2010 to the Growth Plan for the Greater Golden Horseshoe
Environmental Defence submits its comments on Province's proposal for Simcoe County growth
On January 31, 2011, Environmental Defence submitted its comments through the EBR on the Ministry of Infrastruture's Proposed Amendment 1 to the Growth Plan, which is intended to curb sprawl in Simcoe County. The following is the Executive Summary; a link to the full submission is found below.
"We strongly oppose the most recently proposed Simcoe County Growth Plan population allocations and employment zones, as they represent an unjustified comprise that directs growth almost everywhere.
The proposed growth in Simcoe County sets the stage for very large development projects that will choke Highway 400, endanger Lake Simcoe and foul the air and water of our community. The proposal also runs counter to the Government of Ontario’s own Growth Plan, goals of the Lake Simcoe Protection Act, and the wishes of Simcoe County’s residents who support the Greenbelt Act and Lake Simcoe Protection Act. Finally, the Plan says nothing about reducing the ecological footprint of development such as energy use and water consumption, a long-overdue and necessary reform.
Not all the proposed changes are negative; moving some population allocations out of the stressed Lake Simcoe watershed should relieve some of the pressure it faces, and a 20-year restriction on sprawl via the interim settlement boundary policy is most welcome. However, the health, social and environmental benefits to Simcoe County’s residents from these modest gains are completely obliterated in the rush to allocate unnecessary employment areas along Highway 400 that will only promote sprawl, traffic congestion and bad air; allocating insufficient population densities that make meaningful public transit options unviable; insufficient transitional planning that leaves loopholes wide open for abuse by developers; and, the lack of a green building standard to reduce the impact of new developments the province expects in the watershed over the next 20 years.
- Some population moved out of Lake Simcoe watershed;
- Some population allocations went to northern communities, albeit at too low
- densities;
- Restricting sprawl to land needed for 20 years, through the creation of interim
- settlement boundaries, via policy 6.3.2.2.
- Population allocations must consider the assimilative capacity of the receiving bodies of water, and must not result in an increase in Phosphorus to Lake Simcoe;
- Do not proceed with employment areas on Highway 400. They are unnecessary and will lead to further sprawl and unsustainable development;
- Establish clear transition rules from the “Wild West” of planning that exists now to the framework proposed in this Amendment, and make implementation of the Amendment fair in all communities;
- Extend the requirement under the Lake Simcoe Protection Plan to undertake environment assessments on supporting infrastructure before approving land use designations, to all of Simcoe County and especially for the Big Bay Point mega-marina and resort;
- Do not decrease the density allowed anywhere in this plan, and instead increase density targets to 75 jobs and residents per hectare (j&r/ha) and use that number as a condition for future population allocations;
- Introduce a community design, water/wastewater management and green building standard against which population allocations can be assessed; and,
- Grow the Greenbelt in communities contiguous to the existing Greenbelt for example, Bradford West Gwillimbury.
The complete submission can be accessed here: Environmental Defence Growth Plan Simcoe Amendment EBR Response