The decision determines that Council's choice fails the test of reasonableness, and imposes Option 2 from the Watson & Associates final report.
By Ryan McGreal
Published December 13, 2017
In a stunning decision [PDF], the Ontario Municipal Board (OMB) has overturned Hamilton City Council's gerrymandered ward boundary decision and imposed one of the redistricting options Council rejected earlier this year.
Under the imposed ward boundaries, the current Ward 14 is eliminated, consolidating its area among Wards 13 (Dundas) and 15 (Flamborough), while a new ward is established on the West Mountain and the boundaries of the other three mountain wards are shifted to balance their populations.
The OMB-imposed ward boundary revision
These changes will take effect for the October 2018 municipal election.
In 2015, bowing to public pressure, Council retained Watson & Associates to review Hamilton's ward boundaries, which were imposed in 2001 under the amalgamation of the old city of Hamilton with its five neighbouring suburbs: Ancaster, Dundas, Flamborough, Glanbrook and Stoney Creek.
The consultants held public consultations across Hamilton and reviewed Hamilton's ward boundaries on the basis of population, electoral trends, communication and accessibility, geographical and topological features, community of interests, and effective representation. They came back with a final report [PDF] offering two options to rebalance the city's wards to make them fairer and more representative.
Council rejected both options. Instead, they drew their own boundaries with the goal of maintaining the status quo, including vast population disparities between the most and least populous wards.
Two residents, Mark Richardson and Rob Dobrucki, appealed the Council decision to the OMB. The City settled with Richardson but Dobrucki maintained his appeal, and so the hearing was conducted in October.
Huge thanks to Joey Coleman of The Public Record for his excellent reporting on the hearing.
The purpose of the OMB hearing was to apply a standard of reasonableness to the decision on how to apportion Hamilton's wards. That standard of reasonableness includes ensuring that the boundaries are consistent with Carter v. Saskatchewan, a 1991 Supreme Court decision that balanced population with effective representation by limiting the population size discrepancy to 25 percent.
The City's position was that Council's ward boundary choice preserves important "communities of interest" - chiefly rural, affluent, conservative-leaning and culturally Anglo-Saxon.
However, the City's decision to settle with Richardson turned out to be problematic. That compromise revision became the "City Preferred Ward Boundaries Option" that the City defended during the hearing. It entailed removing part of Ainslie Wood from Ward 1 and attaching it to Dundas, transfering a sliver of Ward 11 to Wards 7 and 8, swapping parts of Ward 10 and 11 and moving a part of Ward 11 to Ward 9.
Not surprisingly, the OMB concluded, "while the process followed by the City for the ward boundary review was appropriate, the City's decision to adopt the City Preferred Ward Boundaries was not reasonable." Specifically, the huge population disparity that results from the City's insistence on retaining Ward 14, an affluent and entirely rural ward in the west end of the city.
Hearing participants Rachel Barnett and Rob Fiedler argued that the disproportionate voting power of Ward 14 residents served to dilute the voting power of more urban city wards, with higher proportions of visible minorites and more diverse levels of affluence. In a damning development, it came out that minority interests were entirely disregarded from the ward boundary review - they were just not considered at all in the scramble to protect the affluent, white "community of interest" in Ward 14.
Likewise, participant Don McLean of Citizens at City Hall (CATCH) made what the ruling called a "substantive complaint" about the disproportionate suburban/rural representation at the expense of both urban representation and city-wide planning, since the ward imbalance preserves area rating for transit.
Finally, Ward 1 residents pushed back hard against the compromise decision to move part of Ainslie Wood to Dundas, arguing that this is also a "community of interest" that includes a large community of McMaster University students.
Neither the City or the consultant could argue a substantive defence of this compromise, and the OMB ruled it "an unreasonable error which divides a community of interest without apparent justification".
In explaining its support for Option 2 as the "most appropriate ward boundary option" from the Watson & Associates final report, the OMB noted:
[T]hat the ward boundary review came to be dominated by a concerted mandate to preserve, first, the agreement set at amalgamation that maintains a split of urban versus suburban/rural interests, and second, the rural minority interest reflected in maintaining Ward 14 (Flamborough) as an exclusively rural ward.
Drily expressing the foolishness of spending a quarter of a million dollars on an expert ward boundary review only to reject the output, the OMB ruling notes:
Questions did arise from the fact that Council retained consultants at some expense and then chose not to adopt either of the two options proposed by the expert advisors after extensive study, electing instead to make very minor changes to the existing ward configuration. This aspect of the process could certainly lead one to question why council decided to spend significant funds on consultants only to reject their advice.
The OMB ruling was prepared by B.W. Krushelnicki and Paula Boutis.
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