Mediation Services are a known commodity in civil litigation. They are less well known in the insular world of municipal and planning law. Practitioners in the planning field will be aware that the Ontario Municipal Board offers mediation services The Board has become increasingly aggressive in its suggestions, inquiries, advisories and even demands for mediation as between the parties. Mediations conducted by the Board fall within the administrative system of the Board and are governed by the Rules of Practice and Procedure of the Ontario Municipal Board. In these remarks, I am a clear advocate of mediation opportunities in development reviews, but at a much earlier stage than currently contemplated. PART 1: Dispute Resolution in Context Getting the Job Done Right Land use disputes are among the more graphic subjects engaging personal space, beliefs, principles and reasonable expectations. There are reasons that the serving professions have not engaged in voluntary dispute resolution in great numbers. Here are four: 1. The Board offers a fee free service for those willing to explore the mechanics of consent discussion: confidentiality is assured and “nothing ventured, nothing gained”; despite this, the offering comes too late in the process when the stakeholders have assumed their positions. Late arbitrated dispute resolution, by “roll of the dice”, may appear more expeditious than the potential of facing two equally costly processes: mediation and possible trial. 2. Most disputed matters arise by way of the exercise of statutory appeal rights giving rise to a systemic determination under statutory authority for a decision and order; the Environment and Lands Tribunal, inclusive of the Ontario Municipal Board, will consider mediated solutions on an expeditious basis. The potential need for a statutory order may unnecessarily cloud the decision to access private mediation services. 3. Time, expediency, cost and finality were intended to be the hallmarks of a simplistic and accessible statutory decision making system; those goals have become a sham or a least are elusive and, with that, a reshaping of the industry has occurred: fewer matters are pursued; corporate consolidations reflect greater bargaining power; and alternative compromises are sought out; and 4. Consistency, fairness and predictability are to afford a reasonable assurance of like treatment in like circumstances, yet these factors muddied given the Ontario system of layered policy regimes, ever emerging policy reviews and fewer hearing Officers. The reality is that the land use planning system in Ontario today is counterproductive to prompt delivery on either reasonable expectations or informed dispute resolution. There is no one culprit nor one panacea that can be seized upon to offset the reality that dispute resolution has become increasingly arbitrary and dysfunctional. More kindly, dispute resolution is disjointed, expensive and unpredictable. Despite the goals, the Ontario system can no longer be relied upon to deliver on expectation, intent or objective. Litigate or Mediate? by Ian James Lord CLIENT UPDATE APRIL 2014Land use and planning decision making is encumbered by a series of systemic imperfections: “top-down” policy cannot be detailed and universally applied; five (or ten) year reviews are not manageable in the context of political and administrative decision making processes that defy the passage of time; hierarchicans and decision-making structures may assist clarity but public sector resources are not adequate in time and money to sort out the discrepancies that arise for resolution. The rights, aspirations and needs of individuals, including corporate decision making that contributes investment value to the Ontario economy, demands boundaries that are reliable, accessible and responsive to the legitimate interests of all stakeholders. Moreover, Ontario residents have learned that often there may be more than one solution to address a problem. At issue is whether we have lost sight of resolving problems in a cost-effective, timely and equitable manner in favour of having procedures in place to be seen to address all nuances of dispute resolution. The legal system is obliged to apply norms in what has become known as the Fairness Principle in administrative justice. The Rule of Law arguably requires that these protections be evidenced in all aspects of decision making leading to dispute resolution involving land and property “rights”. These principles are of undisputed benefit and worthy of the most rigorous protection. Yet it is that very discipline that has led to an increasingly dysfunctional system of dispute resolution when it is required to address each problem set with the same degree of detachment, rights, privileges, procedures and liabilities. Whether it is the current 13 or the sought after 26 members of the Ontario Municipal Board, a member’s task is herculean. The members do the best they can, but is their work within a system that can no longer accommodate the demands made of it? Towards a New System of Decision Making in Land Use Disputes Civil litigants have access to a panoply of dispute resolution vehicles that themselves are under constant stress: pre-trial conferences; mandatory mediation; specialized courts; private arbitration and mediation resources; settlement conferences; cost protocols; as well as an ethic of judicial independence and detachment from government, including the influence of “emerging policy”. In public and planning law matters, most municipal decision making remains subject to appeal at an exceptionally low qualifying cost. Each such appeal engages the cumbersome machinery of statutory decision making, generally by the Board, as it alone is placed at the apex of authority for statutory dispute resolution. Yet the Board is also subject to oversight and appeal rights by a party or the Minister, on qualifying interventionist grounds and in the political appointments process itself. The very concept of finality within a reasonable time frame is jeopardized by an aged system of dispute resolution that has been encumbered by successive add-on grafts of statutory powers, procedures and protections. There are three essential skeletal joints in municipal and planning decision making where dispute resolution can be an effective timely aid, prior to engaging in the finality of a trial of an issue before the court or tribunal charged by statute to make a final determination on appeal: a) on the identification of issues; b) at the time of exercising the first “statutory power of decision”; c) at the “courtroom door”. The cost, delay and uncertainty to all involved in the resolution of land use disputes increases exponentially as the clock ticks from the inception of an idea that requires a need for public approvals. The Ontario Professional Planners Institute (OPPI) In the land use planning system, a first guardian of the public interest in the identification, avoidance or resolution of disputes are the planners. Ontario has, arguably, in OPPI the most resourceful professional planning body in the country. Constituted by private statute, the majority of the qualified planning professionals in the Province have consensually joined through membership in a regulated body that provides all the attributes of an established profession: education and practical training standards, continuing education, discipline body, communication vehicles and administrative oversight. While not all planners in the Province are members of this body and bound by its Code of Conduct, the majority are. The planners constitute a body of trained professionals disciplined to pursue the public interest in the avoidance of land use conflicts. They represent a resource open to being further encouraged and tasked to benefit the system of land use decision making. Planning and planners in the Ontario system are advisors, not decision makers. The task of a planner is to gather and assess the relevant issues and information, to assimilate public opinion as expressed by interested stakeholders, to apply policy, principle and experience and to recommend a course of action or modification, to best address the legitimate interests of the public, including the proponent. This role would be better enhanced, more sound and publically responsible if all of the planning profession were mandated under a common house, as in the case of several other self-regulated and related professions: lawyers, architects, engineers, foresters, landscape architects and certain geoscience and medical professionals. OPPI continues to play a leadership role across Canada in integrating and elevating professional membership criteria, qualifications, mobility standards and standards of practice. Both it and the Ontario government should address, at the earliest opportunity, the similar identification and universality of a fully self-regulated planning profession to afford universal standards of accountability in this profession. To do less would not be commensurate with its contributory significance to the Ontario economy. Part 2 explores how mediation at earlier intervals would serve to reframe timely, accountable and cost-efficient land use planning decision processes. Part 3 addresses the Ontario Municipal Board and whether its continued presence is a necessary and contributing component to dispute resolution. PART 2: Early Dispute Resolution In Part 1, a criticism was presented of the constraints in the Ontario system of land use planning dispute resolution processes. An alternative is offered here. Stage 1: A Dispute Resolution Role for the Planning Profession While not yet licensed or regulated by public statute, there exists in significant numbers in the Ontario Professional Planners Institute (OPPI), those planners that have voluntarily subscribed to standards of professional conduct and practice and who have undertaken to offer independent professional advice, in an open and inclusive manner, based on principles of good community planning. Their contribution can be seminal, and often is, in providing the assurances, solutions, standards or techniques necessary to avoid, ameliorate or resolve disputes. Practitioners are, however, aware of the imperfections in this opportunity to avoid conflict: planners differ in interpretation and opinion; some are advocates or rely on less than a thorough foundation of assessment; in theory and in reality are not always reconcilable; policy and political priorities intercede; employer/employee relationships intercede; and principles and policies of good community planning are not always resolvable in every circumstance. What is interesting and evident to the planners, however, are the issues in dispute and the public and private interests at play that can shape, make or break a project or proposal, if forced through to a formal decision process that is didactic: namely, “win or lose”. The land use planning system has failed to seize or has lacked the opportunity or direction at this point to embrace voluntary early mediation to resolve differences. The Planning Act, with amendments in 2006, sought to aid the process of information dissemination and participation by the addition of procedural vehicles to expose the issues: enhanced Notice; “open houses” in advance of statutory public meetings; and other disclosure efforts to identify and make known the project particulars in a timely and open manner. These can be constructive but add some minimal rigidity to the system and fail to address opportunities to achieve consensus building. The Role of the Local Councillor Local Councillors, familiar with their locality, can intercede and extemporaneously suggest mechanisms to address dispute resolution, but the local Councillor is, ultimately, a decision maker and must generally choose “sides” when an issue becomes politically charged. Councillors are not tasked or obliged nor are they necessarily capable, available or trained, generally, to guide a dispute resolution process. Municipal Councillors might consider applying to the land use planning decision making system a new attitudinal approach: “nose in, fingers out”. In Ontario, is it a hallmark of local representative democracy that a local Councillor should take a position on a land use planning proposal before he or she is afforded a mature assessment of the interests of the parties? f politics is the premature judgement of proposals before they have had an opportunity to gestate, then the system, any system, of dispute resolution is bound to fail: costs, time and resource expenditures are likely to be maximized. Councillors are representatives of constituencies. But would these different interests not be better served by their representatives if they first had had the opportunity to mediate any differences before the matter is put to the political representative for an advocacy task? Councillors that have the benefit of a mediated proposal with the prospect of a consensus position not only would have husbanded their own precious time, but would be in a position to reflect and champion consensus and promote decision making from that platform, rather than dissent and discord as is so often the course today. Council members may not need legislative authority to put the building blocks in place that yield mediated settlement proposals arriving on their desks, rather than controversy. However, legislated sanction can guarantee the safeguards of the Rule of Law; whether legislation is local or provincial may not be of significance.Of course, it is a paradigm shift to expect or suggest that stakeholders hold off accessing their local Councillors when matters are in dispute or potential disputes arise. More so is the unlikelihood of local Councillors, engaged in their community, to forebear from the outset any effort to shape the course or content of an application for planning approvals. Is it possible to suspend their efforts to enable matters to be consensually addressed by the direct stakeholders? The change is worth trying. Most provinces do not have a land use dispute resolution system that involves appeals to a provincially constituted administrative tribunal. Mediated settlements offer an approach different than those in place across the country to not only elevate and invoke the role of the “Great Canadian Compromise”, but also to reduce the hours of wrangling before Committee and Council. The substitute: including in participation a structured forum for those engaged to air their legitimate issues in a collaborative setting. Clearly no one size fits all, nor is it conceivable that any system can universally mandate dispute resolution. But is that a sufficient justification not to try? What is argued for here is not a panacea to avoid making hard decisions, but a framework for the early resolution of the resolvable with the local Councillor acting as the reserve strength to ensure that which comes forth on consensus is delivered: nose in, fingers out. In that system, different from the existing, there is the prospect of direct benefit: fewer disputes; less Councillor time; championed consensus; fewer appeals; lower costs; and more timely project development timelines based on “made-at-home” assessments. Council governance needs to institute, instruct and support Staff to promote local dispute resolution mediations prior to matters being tendered for public reporting with recommendations. Consultants, stakeholders, pro bono participants and municipal Staff need to be part of a supported and engrained local dispute resolution mechanism engaged from the outset to search out satisfactory solutions, on a without prejudice basis. An efficient format for this activity is a mediation convened to explore the options, opportunities and responses to interest-based positions. Stage 2: The Second Opportunity: The Municipal/Regional Councillor Planning decisions come on for consideration in a deliberative manner. Whether before Councils or a Committee, including Committees of Adjustment and Land Division Committees, the political dye needs to be cast by a majority vote at the “Statutory Public Meeting”, or shortly thereafter. In any appreciation of enterprise risk management, this is a vulnerable, pivotal and important time to assess circumstances, marshal resources and position a win/win ask. Decision bodies can see this period as another opportunity to resolve disputes by inviting consensus. Namely, by inviting or directing the parties to engage in a mediated solution. There is evidence of success. The old adage that “The citizen is never more at risk than when the legislature is in session”, admonishes this reality as a second opportunity for sober reflection and to convene parties at loggerheads to resolve their own dispute(s). Mediation at this stage will not occur on its own. It needs a sponsor, a champion or a persona with the gravitas to say to the stakeholders that the opportunity is theirs to present a consensus for the receptive consideration of the elected (or appointed) body. Elected and appointed decision makers cannot, of course, divest their responsibilities by delegation. They are obliged to consider the proposal, even a consensus proposal, on its merits, through the lens of the public interest. But how refreshing would it be to receive consensus applications for project approvals that have passed through the reviews necessary for policy compliance, servicing solutions, applied conditions, development charges and site design? How many elected representatives would wish to break or better that consensus or its justification? Ontario, with the benefit of British Columbia’s judicial review jurisprudence, has a comprehensive reservoir to judge the relevant limits of additional intervention. The benefits of a potential second round of consensual resolution effort remain the same: less interpersonal angst, lower costs and less delay. Indeed, some benefits accrue that are of a new ilk which can be of tangible significance to the personal lives of decision makers: the better investment in time, Staff resources and administrative support and tracking can be substantial. Councillors can focus on metrics of Strategic Plan advancement, capital budgeting and ward needs. This is not to suggest that decision makers could decline their responsibilities to address thorny issues, whether issues of magnitude or minutiae. Rather, their tasks could be made materially easier if, through a process of voluntarily mediation, a consensus request could be presented. Councillors, but not Committee members, also hold the card that would permit them personally to engage in the exercise, where conditions permit. The active engagement in suitable circumstances of the Council representative offers the opportunity of direct and informed contact with the constituencies and their interests. Where a Council member has elected to actively engage in the mediation of a project approval, a legislative question arises as to the advisability of whether subsequent participation in the ultimate vote should be permitted. Councillors should be the first to endorse a consensus proposal but circumspect on whether to lead the initiative or process of mediated requests for ultimate political decision. These two mediation initiatives may not require legislation to be supported, instituted or conducted. They do require a fresh look at the planning decision making process, to provide ways and means to encourage focusing the creative juices that are inherent in the majority of dispute resolution circumstances, at the earliest possible opportunity. Early mediation initiatives do not require, but might benefit from Council or Committee rules that broadcast a new and local approach to disputes. Particular candidates might be those that can engage significant human capital resources and potentially enormous private and public resources or that have the potential for benefit from these more informal dispute resolution forums. Councils and Committees cannot shirk their statutory duties to deal with matters placed before them in the timeframe set out in the enabling legislation, but they can institute the appropriate measures of alternative evaluation approaches, such as suggesting or requiring mediation, and facilitating the same, all on a “without prejudice basis”. Municipal corporations and Committees are statutory decision makers exercising statutory powers of decision vested in them by law. Some of these are accompanied by timelines which, if not met, are designed to permit the removal of the matter from local consideration. Efforts that pre-empt or eliminate the need for that event, or that can serve to scope its substance, can be valuable. They need, however, to be conducted astutely, fairly and without fear or favour. Again, Council needs to have its “nose in” to protect this process but keep its “fingers out” to permit the opportunity for consensus building and full consideration in an open and fair hearing, should consensus not be achieved at any prior stage. Part 3 addresses the Ontario Municipal Board and whether its continued presence is a necessary and contributing component to dispute resolution. Part 3: The Future of the Ontario Municipal Board In Part 1, a criticism was presented of the constraints in the Ontario system of land use planning dispute resolution and the role of OPPI to assist. Part 2 proposed two focused instances where mediation might be institutionalized at an earlier stage of project review. The time for Ontario to consider embracing a new form of land use planning and municipal planning decision making has arrived. Canadians respect consensus building and principles of fairness, transparency and timeliness in decision making. The Ontario Municipal Board, or its parent Environment Land Tribunals Ontario (ELTO), have recognized this and have made conscientious efforts to encourage mediation at the late stage of appeal arbitration. Land use planning decisions can demonstrate at least one of two significant attributes: the sometimes visceral elements of encroachments on neighbours’ “space”; the economic effect on investment and employment in the Ontario economy and the investment in Ontario’s future infrastructure, public and private. The Board has long attempted to be the arbitrator of the heat of these variables and attempted to ensure that “neither become the pampered darlings of the decision maker”. In the end, despite nuances, land use and municipal decision making is often framed as a discretionary exercise of choice. The perennial question is with whom should that choice rest? Since 1946, or even earlier, Ontario has chosen a land use planning regime based upon the principle of a hierarchy. Notionally, at the top of the pyramid is the Board as the “final” decision maker, in cases of dispute/appeal. With nuances as to changing vehicles for control and ultimate political accountability, this system leaves the discretionary power of decision very often in the hands of appointed single individuals. It is a system that has certainly served Ontario. The Board is an institution that is not replicated elsewhere. It is also a part of a system that has not been immune to criticism. It is a system that is incapable of pointing to societal advances that are demonstrably distinct or necessarily superior to all other common-law jurisdictions dealing with similar issues around the world. In the 21st Century, where should local decisions lie – even those that house enormous capital investments? To the lay citizen, finality should rest with accountability, in the elected Council. To Councillors, finality should rest with them, except in the all too often circumstances where reasons exist for non-decisions or the heat should be conveniently deferred to the Board to decide, correct or confirm the local judgement. To the Province, its constituency ears are receiving multiple, often irreconcilable refrains. To the building, land and development industry, movement shows support for changes in political accountability, more mediation and risk avoidance, in the direction of more timely and less costly approval decision making. Local and regional Councils are in place to determine community values. Whether expansive or parochial, in our system, their decisions are intended to reflect the attitudinal biases of the constituent community, during electoral intervals. Local Councils have the limited right within their statutory powers to differentiate themselves subject to the checks in place of provincial policy oversight, legal authority, the judiciary and the electorate. Does administrative review by the Ontario Municipal Board any longer comprise an essential component of this checks and balances system? Between 1946 and now, there have been changes to public interest intervention in private investment in land development. Land use regulatory and local and regional policy controls are universal. Provincial intervention has lifted to finite areas and policy direction has evolved to express evolving provincial interests. Provincial municipal relations have stabilized and municipal fiscal responsibility and professionalism, or access thereto, is far more demonstrably present. Indeed, legislative responses have shown increasing effectiveness, where necessary, in areas of special interest related to land use planning decision making: development charges; heritage protection Chambers Global 2004–2005 and conservation; environment protection and assessment; affordability, accessibility and design control. None of these subjects are hidden or capable of escaping in project assessment the spotlight of scrutiny and need for balance, to avoid consequential results. Nothing would prevent new and evolving public interest initiatives to continue to address matters of weight. While there will always be instances of sought out advantage or patent excesses by industry, public representative corporations and individuals, the question remains as to whether necessity warrants that a provincially constituted administrative tribunal should be available and accessible on almost every issue requiring a public decision making process? This is not a new debate. However, its scope, significance and relevant sinews may have changed. The Ontario economy is lagging, municipalities lack fiscal resources, governments of all stripes, sizes and capacities are being called upon to deliver better service value for the tax dollar, and the citizenry are disillusioned as to whether governance is local, representative and fiscally responsible and responsive. If the option to keep the Board is elected, then it must be staffed and scoped more suitably to the present time. The current approach of successive governments to weaken its complement, sustain avoidance and demur on performance evaluations, is reprehensible and a disservice to the public. Perpetual study and issue avoidance reinforces systemic cracks and does not deserve the complement of reliability or even custodial maintenance. If the option is to reform or eliminate the Board, not only should its history and membership be celebrated and its members appropriately accommodated, but a complete strategy for change or endorsed evolution needs to be apparent. It is a tautology that change is a constant. Clearly, in Ontario’s land use planning and municipal decision making, change has occurred and it continues. By any measure of equivalent societies, the Board is an anachronism worthy of reform, whether it be by enhancement or abandonment. Communities elsewhere learn to live with their local decisions. Likely there is enough assessment and intellect on the table to design either option without the semblance and delay of a further review, Royal Commission or elaborately structured reassessment. he Ontario system, while warranting a paradigm shift, is not likely open to, capable of or necessitating comprehensive reform or reinvention. This is not to say that agency review and public debate and disclosure should be avoided. Rather, those needs must co-exist with a determination that change is warranted. The Ontario land use planning and municipal decision making system needs to evolve in the context of a strategy that maintains contemporary values and an ability and willingness to accept adaptability and change, as integral components. One assessment of how this change may be accomplished in the arena of land use dispute resolution has been the subject of these remarks.