The meeting that was held Tuesday evening February 16 for Working Group members was very
helpful in clarifying the OMB process that both the city and the ETCC will need to
follow for the OMB appeal. Both Tine Major and Kyle Knoeck from City Planning
were there as well as Councillor McMahon and a representative from Councillor
Fletcher’s office. Planning provided a handout which will be posted as soon as it is received. Planning confirmed that the Request for
Direction Report (which they are obliged to submit as a result of Rockport’s
actions), will be submitted for April Community Council and will be recommending
that staff go in opposition to the current proposal. The Heritage report will be
included in that document. Also, the city will have legal representation at the
OMB hearing acting in opposition to the developer’s lawyer. Christina
Achkarian has been appointed as the city’s lawyer in this action.
Planning confirmed that Rockport never re-submitted their proposal to the
Planning department in response to the comments they received. This appeal is
of the original application for 8 storeys plus mechanical. With regard to the
Rental Replacement report, Planning intends to request that the OMB – should it
approve the development on the site – withhold its order until such time that
the City approve the Rental Demolition application. If that occurs, Planning
would write a Rental Replacement report to City Council. They would also ask
that any Order by the OMB be witheld until such time as the city approve a
Tenant Assistance Program. This would slow things down considerably.
In order to fully participate in the OMB process the ETCC needs to be a
“party” versus a “participant” at the hearing. Only a “Party” can be involved in
mediation if mediation is agreed to by the OMB and goes forward. Only a “Party”
can call witnesses, cross-examine and make submissions at the actual hearing.
The ETCC will need to incorporate again as its previous incorporation has lapsed. This is the
incorporation which was in force when it was a "party" to the Smart Centre appeal
in 2009. The steering committee is looking into this and the costs are anticipated to be approximately $650. Belinda Schubert has compiled a
great briefing document on the OMB process which is attached below. It will help explain a lot of the rules that is must be
followed.
The developer’s lawyer has requested a pre-hearing conference. Anyone can
attend this meeting and it is at this meeting, that the OMB board member
assigned to the case, will canvass the room to see who is requesting ‘Party”
status and who is requesting “Participant” status. Each person or
representative will have to explain why they wish to be a party or a
participant.
We are looking in to organizing a meeting for all interested ETCC and
community members to get ourselves organized vis-a-vis addressing issues and
speaking at the hearing from a participant standpoint. We’ll be in touch in
that regard. It’s not anticipated that the pre-hearing meeting will be taking
place before April.
Victoria Dinnick for the ETCC Steering Committee
A number of questions that arose at our meeting today are answered by the
OMB's Rules of Practice and Procedure, which are found at the following
link:
The deadlines for notice are found at page 7. Here are some further salient
portions of the Rules:
6. Board May Exempt From Rules The Board may grant all necessary
exceptions from these Rules or from a procedural order, or grant other relief as
it considers appropriate, to ensure that the real questions in issue are
determined in a just, most expeditious and cost-effective manner.
7. Failure to Comply With Rules The Board expects
compliance with these Rules and Board orders. If a party or participant has not
complied with a requirement of these Rules or a Board Order such as a procedural
order and any requirement included therein, then the Board will determine the
consequences of non-compliance and may grant necessary relief or exercise any of
its powers authorized
10. Time Time is computed under these
Rules or in a Board Order in accordance with the Rules of Civil Procedure unless
otherwise provided. For greater clarity, a day shall mean a calendar day and
when the time for doing anything under these Rules falls on a holiday, the time
is extended to include the next day that the Board is open for business. When
there is reference to two events, the time between two events is computed by
excluding the day on which the first event occurs and including the day on which
the second event occurs.
11. Extension or Reduction of Time The Board may extend or
reduce any time required in these Rules or in a Board Order, with any terms or
conditions, unless a statute or regulation provides otherwise. (The Board cannot
extend a time period prescribed in a statute or regulation.) A request for a
change in time requirements may be made by bringing a motion, or the Board may
change a time requirement on its own initiative, with or without a hearing
event, either before or after the time period expires. Time for serving a
document or other written or visual evidence may also be extended or reduced if
all those who must be served consent in writing.
21. Prefiling of Witness Statements and Reports
If a
hearing is expected to last more than 10 days, the Board may require that
parties calling expert or professional witnesses serve on the other parties and
file with the clerk of the municipality any experts witness statements and
reports prepared for the hearing, at least 30 days in advance of the
commencement of the hearing, unless otherwise directed by the Board. The Board
may also make this prefiling order for hearings expected to last fewer than 10
days, at the request of a party. The expert witness statement must contain:
(a) an executed acknowledgment of expert’s duty form (attached to these
Rules) and expert’s qualifications;
(b) the issues the expert will address, their opinions on these issues, the
reasons that support their opinions, their conclusions; and
(c) a list of the reports or documents, whether prepared by the expert or by
someone else, that the expert will refer to at the hearing.
The expert’s complete report may be filed instead of this statement if it
contains the required information.
An expert may not be permitted to testify if this statement or report is
not served on all parties and filed with the Clerk of the municipality when so
directed by the Board. Participants in the hearing wishing to examine expert
witness statements and reports may do so at the Clerk’s office.
21.01 Duty of the Expert Witness It is the duty of every
expert engaged by or on behalf of a party who is to provide opinion evidence at
a proceeding under these Rules to acknowledge, either prior to (by executing the
acknowledgment form attached to the Rules) or at the proceeding, that they are
to,
(a) provide opinion evidence that is fair, objective and non-partisan;
(b) provide opinion evidence that is related only to the matters that are
within the expert’s area of expertise; and
(c) to provide such additional assistance as the Board may reasonably require
to determine a matter in issue.
(d) These duties prevail over any obligation owed by the expert to the party
by whom or on whose behalf he or she is engaged.
21.02 Other Witnesses The Board may also require that a
witness or a participant who is not presenting expert evidence provide a witness
or participant statement. A witness or participant statement should contain (a)
a short written outline of the person’s background, experience, and interest in
the matter, (b) a list of the issues that they will discuss, and (c) a list of
reports that they will rely on at the hearing. A participant statement should
also briefly outline the evidence to be presented. The Board may not allow the
witness or participant to testify if this statement is required by the Board but
is not provided to the other parties.
32. Role of a Party A party to the proceeding before
the Board may participate fully in the proceeding, and this includes the
following:
(a) Serve and file motions;
(b) Receive copies of all documents exchanged or filed at any hearing event
in the proceeding;
(c) Present submissions at the commencement and at the end of a hearing;
(d) Present or cross-examine witnesses at a hearing event;
(e) Claim costs or be subject to a cost award when ordered by the Board; and
(f) Request a review of a Board decision or order as set out in Rule 110.
SETTLEMENT BEFORE BOARD PROCEEDINGS
44. Procedure if Settlement Held Before Board Hearing
Event The Board may hold a hearing on the terms of a settlement if
parties agree to a settlement prior to a hearing event. If all statutory
requirements and the public interest are satisfied, the Board may issue an order
approving the settlement, with any necessary amendments.
MEDIATION
66. Mediation
A party or parties may request the Board to conduct a mediation of any issue
raised in a proceeding. Prior to the Board granting this request, the Chair or a
Vice-Chair designated by the Chair will conduct a mediation assessment of the
proceeding to determine whether the issue or proceeding is suitable for
mediation. If the Chair or designated Vice-Chair determines that mediation
should proceed, then the Board will convene a mediation, with the participation
of all or two or more of the parties, should they provide their consent to each
and the Board. The Board shall set the date of the mediation and direct how
notice of the mediation will be given.
67.
Procedure at a Mediation If a mediation
request is granted, the Board will appoint a mediator who is a Member of the
Board, and the mediator may make use of any appropriate dispute resolution
techniques to help the parties involved in the mediation enter into a voluntary
resolution of the issues in dispute.
68. Member
to Preside at Hearing Event Only with Parties’ Consent
A Board Member who conducts a mediation in
which one or more of the issues have not been resolved may not preside at any
hearing event of those unresolved issues unless all of the parties consent and
the Board Member agrees.
69.
Mediation or Settlement Discussions Confidential The details of proceedings during a mediation are confidential. Any
information or documents provided or exchanged during the mediation and any
suggestion for resolution of the issues or offer to settle made during a
mediation shall remain confidential and cannot be disclosed in evidence in the
same or other proceeding, nor be placed on the Board file. A Board Member’s
notes of a mediation shall remain confidential and shall not be released to any
person or admitted into evidence in any proceeding. A Board Member that
participates in mediation is not competent or compellable in any proceeding to
give evidence or produce documents regarding the mediation discussions.
PREHEARING CONFERENCES
70.
Prehearing Conference At the request of a
party or on its own initiative, the Board may direct parties to participate in a
prehearing conference, which can include settlement conferences, motions or
preliminary hearing matters, in order to:
(a) identify the parties and participants and determine the issues raised by
the appeal;
(b) identify facts or evidence the parties may agree upon or on which the
Board may make a binding decision;
(c) obtain admissions that may simplify the hearing;
(d) provide directions for exchange of witness lists, expert statements and
reports, for meetings of experts to address the disclosure of information,
including the disclosure of the information that was not provided to the
Municipality before Council made its decision that is the subject of the appeal,
and for further disclosure where necessary;
(e) discuss opportunities for settlement, including possible use of mediation
or other dispute resolution processes;
(f) fix a date and place for the hearing and estimate its length, and
encourage the parties to agree upon the dates for any procedural steps;
(g) discuss issues of confidentiality, including any need to hold a part of
the hearing in the absence of the public or to seal documents;
(h) address the production and cost sharing of joint document books; and
(i) deal with any other matter that may assist in a fair, cost-effective, and
expeditious resolution of the issues.
71. Sample
Procedural Order and Meeting Before Prehearing Conference
The Board may provide a sample procedural
order to the parties before the prehearing conference. The parties are expected
to meet before the prehearing conference to consider the matters set out in Rule
70 and present recommendations to the Board for the conduct of the
hearing.
72. Serving Notice of a Conference The Board will give the
applicant a Notice of Conference which provides the time and place of the
prehearing conference. The applicant must serve this on those persons entitled
to notice of the conference and provide an affidavit to the Board, at the
conference, to prove service of the motion.
73. Board Member Presides The Chair will assign a Board
Member to conduct the conference.
74. Public Attendance at a Prehearing A prehearing conference
held in person will be open to the public. A prehearing conference held by
electronic hearing will be open to the public where practical.
76. Results of Failure to Attend a Conference
If a
party fails to attend the conference in person or by authorized representative,
the Board may proceed without that party. The non-attending party is not
entitled to notice of subsequent hearing events in the proceedings.
...
96. Who May Request an Order for Costs
Only
a party may ask for an award of costs at the end of a hearing event. If the
request for costs is not made before the Board renders its decision at the end
of the hearing event, the party must notify the Board within 30 days after the
written decision is issued that the party will be seeking costs, against whom
the costs are sought, and an indication of the approximate amount of costs being
sought.
102. Period Eligible for Costs Order The Board may make a costs
award for conduct at any time during a proceeding.
103. Circumstances in Which Costs Order May be Made
The
Board may only order costs against a party if the conduct or course of conduct
of a party has been unreasonable, frivolous or vexatious or if the party has
acted in bad faith. Clearly unreasonable, frivolous, vexatious or bad faith
conduct can include, but is not limited, to:
(a) failing to attend a hearing event or failing to send a representative
when properly given
notice, without contacting the Board;
(b) failing to give notice without adequate explanation, lack of co-operation
with other parties during prehearing proceedings, changing a position without
notice to the parties, or introducing an issue or evidence not previously
mentioned or included in a procedural order;
(c) failing to act in a timely manner or failing to comply with a procedural
order or direction of the
Board where the result is undue prejudice or delay;
(d) a course of conduct necessitating unnecessary adjournments or delays or
failing to prepare
adequately for hearing events;
(e) failing to present evidence, continuing to deal with issues, asking
questions or taking
steps that the Board has determined to be improper;
(f) failing to make reasonable efforts to combine submissions with parties of
similar interest;
(g) acting disrespectfully or maligning the character of another party; and
(h) knowingly presenting false or misleading evidence.
The Board is not bound to order costs when any of these examples occur as the
Board will consider the seriousness of the misconduct. If a party requesting
costs has also conducted itself in an unreasonable manner, the Board may decide
to reduce the amount awarded. The Board will not consider factors arising out of
a mediation or settlement conference in determining whether there should be an
award of costs.
