OMB Rejects Challenge to Revised Ward Boundaries

By
Sarah Trant
West Carleton Review

An energetic bid mounted by Terry Kilrea to at least maintain the current level of rural representation on City Council has been rejected.   This means that out of the expanded Council comprising twenty-three members (up by two from the original 21) only three Councillors will now speak for Ottawa’s rural residents – residents who occupy 90% of the City’s designated area.

The decision has left both mayoral-hopeful Terry Kilrea and expert witness Bob Mckinley (invited by Kilrea to assist with the technical aspects of the appeal) surprised and not a little shocked.

McKinley, a lawyer with over a quarter of a century of experience in the field of real estate and municipal law and who includes in his client list such organizations as the National Capital Commission, Canada Mortgage and Housing the Toronto Dominion Bank, and Canada Trust is still smarting from the Board’s discounting his evidence on the grounds that they did not consider him qualified to provide a legal opinion.  He also confesses that he is astounded at the procedural irregularities that occurred before and during the hearings.

Irregularities that blatantly contradicted the Board’s own rules of procedure.

“For example,” said McKinley, “in an exercise like this the normal practice is to call a pre-hearing conference with a view to setting forth direction for the conduct of the hearing as well as articulating the principle issues that would be examined during the hearing.   Then there’s the setting out of the rules of procedure where parties are given standard terms for such things as delivery of evidence of documents, time limits for the exchange of professional opinion. The norm is that documents and witness statements are exchanged not later than thirty days prior to the hearing start time.”

Apparently these ‘niceties’ fell by the wayside since the Board convened the hearing less than thirty days in total from the time it gave notice without allocating any time for any pre-hearing.

McKinley’s request to represent himself (rather than the interests of the rural organizations on whose boards’ he sits) at the hearings were denied by the Board but, after a complicated series of negotiations, he was able to participate in his personal capacity as Terry Kilrea’s concluding witness.

McKinley had already successfully appealed a previous effort by the City to compromise rural democracy by basing his argument on the “Carter Case”:  a decision arrived at by the Supreme Court of Canada in a case brought Roger Carter, Q.C. concerning the definition of electoral boundaries by the Saskatchewan Government in 1991.

“My evidence was that the bylaw was illegal because it ran contrary to the decision arrived at by the Supreme Court of Canada because the population differences in the urban/rural area exceeds acceptable variance norms,” explained McKinley.  

“The new suburban Stittsville ward will have a population of 20,000 in 2006 while other urban wards such as Bay or Bell South Nepean will go into the election with 250% more people.   Or, if you like, a Stittsville vote will carry two and a half times the voting power of a vote in these wards in the next electoral go-round.  

“The law allows for under populated rural areas to be lower by factors up to 35% but that is the exception which is articulated by Carter.   However, the law does require that populated areas be of roughly equal number based upon the principal of representation by population.”

McKinley’s argument was reinforced by that of Councillor Bellmare, a lawyer and longtime member of Council.

Since the City called no witnesses, these two opinions went unchallenged despite which the Board “in its infinite wisdom chose not to accept the arguments not because they disagreed with them but on the basis,” says McKinley wryly, “that we were not qualified to express a legal opinion!”

McKinley is quick to admit his frustration.  “We were not after radical changes,” he points out.  “We were proposing amendments to a bylaw that would bring it into line with approved processes.   In my opinion the decision of the Board could still be subjected to judicial review and may very well be overturned as a result.

“I also think that the Courts will take a very dim view of having a Supreme Court of Canada Decision categorized as not applicable to the City of Ottawa!”

The West Carleton Review

Rural voters get less representation on beefed up city council

McKinley calls OMB sanctioned ward bylaw “extremely illegal”

By Karen Secord

Ottawa Valley News

The “least worst scenario”, as the most recent ward boundary bylaw has come to be known, may prove to be the most illegal option. That is the word from Bob McKinley, past president of the Rural Council and the lawyer who challenged the first ward boundary bylaw in 2003 on behalf of the city’s rural communities, and won.

But the rurals, he says, are definitely the losers this time around.

In their October 7 decision the Ontario Municipal Board (OMB) dismissed the concerns of rural residents and, McKinley says, ignored the direction given by the Supreme Court of Canada in the precedent-setting Carter Case by increasing the number of councillors around the council table by two and reducing rural representation by two.

On a city council of 23, rural residents have now had their representation decreased to three.

“The Supreme Court of Canada’s Carter decision stated that more than population should be considered when looking at the fundamental right to representation on which democracy is built,” explains Rural Council President Janne Campbell. “In a democracy there is an obligation to provide effective representation. This means that all residents are entitled, by law, to reasonable access to their elected officials.”

Currently, notes Jack MacLaren, President of the Carleton County Landowners Association, only Osgoode’s Doug Thompson and Rideau’s Glen Brooks are strong representatives for rural concerns. Both Cumberland’s Rob Jellett and Goulbourn’s Janet Stavinga have seen their wards become increasingly urbanized, he says. And West Carleton’s Coun. El-Chantiry refused requests to support his constituents in challenging the proposed boundary changes.

Under the new bylaw West Carleton will now include the rural parts of Kanata. Stittsville will now form a ward by itself and rural Goulbourn will be joined with Rideau. Cumberland, represented by Jellett, will be one-third rural and two-thirds suburban.

Although McKinley and the Rural Council did not participate in the OMB appeal in an official capacity this time around, McKinley was called as a witness by mayoral hopeful Terry Kilrea.

“My evidence was that the bylaw was illegal because it ran contrary to the Carter Case, a decision the Supreme Court of Canada relied upon to defeat the last City attempt to compromise rural democracy,” says McKinley. “I based my opinion on the fact that population differences in the urban/suburban area exceeded acceptable norms.”

While the law allows for under-populated areas to have as many as 35-percent fewer voters in a ward, populated areas must be of roughly equal numbers. And under the new division of voters the Stittsville ward, for example, will have only 20,000 residents, says McKinley. The most populated wards will enter the election with as many as 250-percent more voters.

Clearly, the OMB decision to dismiss the appeals of even those seeking a representation-by-population solution didn’t offer satisfaction to any of the ward boundary bylaw challengers. Mayoral hopeful Terry Kilrea, a group called the Federation of Citizens’ Associations of Ottawa-Carleton, and taxpayer Alayne McGregor all requested an opportunity to argue against the proposed ward bylaw in front of the OMB.

Kilrea was seeking to have the bylaw repealed and the 21-ward structure re-established. McGregor and the citizens’ association argued that all wards should contain roughly the same population 

“The Rural Council is on record as saying that it is not acceptable to go back to 21 wards,” says McKinley. “That’s where we were two years ago.”

The Rural Council supported the addition of three wards, with no less than five of the seats around the council table being occupied by rural representatives.

According to McKinley, all of the councillors, with the exception of Bellemare and Cullen, refused to address the problem 

“City councillors are more concerned about their own ‘fiefdoms’,” says McKinley.                                    

Boundary Report

The report on ward boundaries was commissioned by council in August 2004 to deal with the disparities that exist in the city’s three largest wards - Bell-South Nepean, Gloucester-Southgate and Kanata - where councillors represent as many as 68,450 residents as compared to the Rideau councillor who speaks for only 13,735. The plan was to have the new ward structure approved by December 31, 2005 so that it would meet the deadline for the next municipal election in November 2006.

Public consultations on the issue and a discussion of the consultants’ “Options Report” began in late February and continued until March 2.

The Ottawa Ward Boundary Review –Building Consensus report, which recommends altering the current ward structure to add two new councillors, was penned by two independent consultants and accepted by council on June 8.