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Fallout from OMB decision

Jan 02, 2018

Last month’s Ontario Municipal Board decision didn’t just slam city councillors for trying to manipulate their ward boundaries. The OMB also strongly criticized the city for denying citizens the critical information required to challenge council’s electoral scheming.

The population data used by city officials and their consultants to justify their proposals for re-division of wards was not made public. That made it effectively impossible for residents to make counter proposals, including Rob Dobrucki who successfully conducted the OMB appeal of council’s preferred boundaries.

“Mr. Dobrucki’s position is that these data are vital public information collected and assembled using public funds for a public purpose that merits a high degree of disclosure and transparency,” explained the OMB decision. “Failure to make the information available raised unwarranted doubts about the conclusions that the consultants reached and deprived the public of the opportunity to play a meaningful role in the analysis and in formulating alternative options.”

The Board noted that Dobrucki was denied access to this population data both during the public consultation process and even after he launched his appeal. At the hearings, city lawyers claimed “that the data were not actually refused” and that Dobrucki could have used Freedom of Information rules to try and get it.

The OMB members were not impressed by the city’s argument.

“The Board does not understand the position that there was no actual refusal,” states their decision. “Mr. Dobrucki asked for the data and it was not given to him. By action, this was a clear refusal on the part of the city. The city did not formally respond with a refusal to disclose the information and suggest instead that Mr. Dobrucki should make a [Freedom of Information] request. It simply did not disclose the data.”

In response to Dobrucki’s request, the Board ordered the city to provide the population data to him – which it did but with a bill for over $600. Dobrucki asked the Board to order the city to refund this fee. The Board appears to agree this is warranted but concluded it did not have the authority to make such an order.

“The Board is satisfied that disclosure of the detailed data to Mr. Dobrucki was not onerous, but instead proved to be practical and valuable to this hearing, and almost certainly would have been useful in the public engagement process,” continues the OMB decision. “We conclude that the data were assembled at public expense within a public process that warrants maximum transparency and should be disclosed.”

The Board went on to state “that as a general proposition, requiring a member of the public to go through the [Freedom of Information process] would seemingly hobble the engaged citizen for no obviously good reason.”

Along with pushing the city to be more transparent with publicly-funded information, the OMB imposition of more equal wards shifts the re-election picture facing council incumbents. And the results of the next municipal election this fall under this new ward configuration may also end their much lower suburban tax rates for transit.

While rural areas are exempted from paying any taxes toward the HSR, the urbanized areas the former suburban municipalities currently pay about one-third the transit tax rate imposed on residents of the former city of Hamilton. Numerous attempts to review and modify this unique taxation arrangement have been defeated in the past by a united front of suburban councillors.

The ward 11 councillor says she wanted a court appeal of the OMB decision precisely because of the latter impact. On her website and blog Brenda Johnson emphasizes that the expected challenge to area rating of transit taxes is her main concern.

“As a result of the new ward boundary ruling, one rural ward has been eliminated and one urban ward has been added,” argues Johnson. “For the past 17 years area rating has been kept for the former suburban municipalities at a lower tax rate because of the makeup of rural and urban wards. With the new ward boundaries theoretically the vote can now be considered lopsided and with the loss of the rural vote it will now be almost impossible to defend and uphold area rating as was in the past.”

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