Mediation at the OMB - Cultural shift

NRU
June 15, 2016
By Geordie Gordon

Mediation at the Ontario Municipal Board has proven to be an invaluable tool for helping to resolve planning disputes over the past decade. Given this success, experts argue that the board should expand this function, however, this would require additional resources.

The OMB has developed a mediation program over the past decade, and OMB associate chair Wilson Lee told NRU it has been successful beyond his expectations. “I really see a bit of a shift in culture. People are not saying anymore ‘I want to win at all costs’,” he said.

Lee says that the future of resolving planning disputes is mediation, with the ‘winner take all’ approach becoming a less favorable outcome of planning cases. He says that mediation has been nothing short of transformational, and that anyone who has participated in a successful mediation will look for similar ways to resolve any future disputes.

“I don’t need to sell this [mediation], this thing sells itself,” he said.

Lee acknowledges that in light of the upcoming provincial review of the OMB, there are many different voices calling for significant reforms to the OMB, if not outright abolishment. He says that this sentiment does not fully appreciate the board’s less visible success story: its mediation process.

“They want something to be done, but what I’m sort of sensing is that people are a little unaware of this development, this evolution, and that is the mediation,” he said. “I really think we have had not just some success, we have had a great deal of success [on] very difficult cases,” he said.

Lee says that whoever undertakes the review of the OMB needs to look at the mediation aspect of the board, instead of simply focusing on issues.

In order to expand its mediation work, Lee says the board will need to be better resourced to accommodate more mediators. However, he cautioned that it takes a unique skill set to be an effective mediator in disputes at the board. Expanding mediation is not just a question of resources, it is also about recruiting the right people. There are currently four board members that are able to undertake mediation, but Lee would like to see that expanded to seven or eight.

“I would like to see [mediation] expand, but [the board] needs a bigger resource base. I need people that have good skills in mediations, in other words, I have to grow the program from within,” he said.

Devine Park partner Patrick Devine told NRU he has also seen a shift over the last 10 years from contested hearings to mediation. He said that within the municipal law profession, there was initially some resistance to mediation because lawyers were more used to an adversarial approach. Now he says, even if the matters aren’t settled as part of the mediation process, each side gains a better understanding of where the other is coming from.

Devine said that while the mediation process at the board has been quite successful over the past decade, adjudication is still necessary.

“There has to be a day of reckoning out there that provides a deadline, or else negotiations don’t go anywhere,” he said.

Lee agrees and cautions that expanding the board’s mediation function does not mean it will replace its adjudicative function. The two are complementary: if mediations are to be successful, the adjudicative function must also be strong in order to provide a leveraging tool, if nothing else.

Devine also pointed to regulations for The Smart Growth for Our Communities Act, set to come into force on July 1, which will allow municipalities to initiate their own mediation process after an appeal has been submitted to the OMB. The regulations will allow municipalities to effectively pause the appeals process for up-to-60 days while mediation is pursued. Similar to the OMB process, the municipal process will be voluntary.

Given the OMB’s mediation has been quite effective, Devine questioned why there needs to be a counter-system. He also said that along with the local appeal body, mediation at the municipal level amounts to an indirect downloading of the costs from the OMB to a municipality.

“I’d ... have concern about fragmenting the whole mediation process, especially when you have something that seems to be working quite well [at the OMB], and then take that away from the board and put that into some other system. That doesn’t make a lot of sense to me,” he said.

Lee has authored a paper on Mediation and the OMB which was presented at a municipal law seminar offered by the Law Society of Upper Canada last month as part of its continuing professional development program.