December 14, 2016…

December 14, 2016

Mr. Ken Petersen, Manager
Ministry of Municipal Affairs and Housing
Local Government and Planning Policy Division
Provincial Planning Policy Branch
777 Bay Street , Floor 13
Toronto ON
M5G 2E5

Dear Mr. Petersen,

RE:Consultation on role of Ontario Municipal Board in Ontario’s land use planning system Environmental Registry Posting 012-7196

With more than 1,450 member-companies, the Building Industry and Land Development Association (BILD) is the voice of the land development, home building and professional renovation industry in the Greater Toronto Area and Simcoe County. Our industry is essential to the Province’s long-term economic strength and prosperity. In 2015 alone, the residential construction industry in the Greater Toronto Area generated nearly 200,000 on-site and off-site jobs in new home building, renovation and repair – one of the largest employers in the Greater Toronto Area. As a simple rule of thumb, one crane in the sky represents 500 jobs. These jobs paid $11.4 billion in wages and contributed $30.2 billion in investment value across the regional economy.

On behalf of the members of BILD, we thank you for the opportunity to submit comments on the Province’s review of the Ontario Municipal Board in Ontario’s land use planning system. We are pleased to provide you with these comments in advance of the Environmental Registry deadline of December 19, 2016. As a local association of the Ontario Home Builders Association (OHBA), BILD and its members contributed to OHBA’s August 31, 2016 preliminary submission to the Province for this review. The comments in this submission are intended to build on the framework positions established in OHBA’s preliminary letter.

Thank you again for the opportunity to submit these comments and for your care and consideration of these opinions. If you have any questions or concerns, please feel free to contact Danielle Chin at 416.391.1997 or via email at dchin@bildgta.ca.

Sincerely,
Bryan Tuckey
President & CEO

~

CONTENTS

This submission is organized in a series of themes, aligned with the Provincial themes, as follows:

(1)First Principles

(2)Summary of Recommendations

(3)The OMB’s Jurisdiction and Power

(4)Citizen Participation and Local Perspective

(5)Clear and Predictable Decision-Making

(6)Modern Procedures and Faster Decisions

(7)Alternative Dispute Resolution and Fewer Hearings

(8)Closing Remarks

FIRST PRINCIPLES

Firstly, we agree with the Ministry that Ontarians deserve well-planned sustainable, vibrant communities, and acknowledge the significant role that the OMB plays in this planning process. We also acknowledge that this review is about potential reforms to the existing model rather than questioning the necessity of its place in Ontario’s land use planning system, and we are supportive of this approach.

BILD has held a longstanding position, like its provincial affiliate – OHBA, of strong support for the essential role of the OMB as an impartial, evidence-based, administrative tribunal that is responsible for handling appeals of land use planning disputes. In this administrative capacity, the OMB serves to ensure that provincial land use policies and objectives are achieved and that municipalities employ consistency in the application and implementation of the Planning Act, the Development Charges Act, the Provincial Policy Statement and other related land use legislation and policy.

We affirm that the decisions made by the OMB are based on planning evidence, provided by expert witnesses under oath, which helps to ensure that long-term public policy objectives are upheld. The Board provides significant value to the public good because decisions made by the OMB are an essential counterbalance to the local political pressures of municipal councils. Upholding the local interest does not necessarily uphold the provincial interest. Additionally, the OMB provides a forum where the principles of fairness, quality, consistency, and transparency are fundamental, and the provision of administrative justice is the first and last order of business. The possibility of an appeal also better ensures that initial municipal planning decisions contain an appropriate analysis of an application to ensure a decision is defensible.

Individual property owner rights also need to be protected and respected. Without an independent tribunal that specializes in land use planning, such as the OMB, it would be more difficult to achieve provincial planning goals and objectives while ensuring all interests are considered in an open and fair process. In the absence of this administrative body for third party review, land use related disputes would end up in the court system. The court system does not have the necessary level of “planning” expertise to hear such cases. This would also increase the costs of public participation and limit access to fair justice.

We believe that through this review, reforms to improve public accessibility and provide enhanced respect for the municipal process would be appropriate.

SUMMARY OF RECOMMENDATIONS

1)BILD does not believe that the OMB’s approach to reviewing municipal/approval authority decisions should change, nor do we believe that the scope of the OMB’s jurisdiction should be narrowed. We believe there are other methods to improve the scope and effectiveness of the Board, which are discussed in the following sections of this submission.

2)BILD also believes that the Province should not implement additional limits on appeals of “matters of public interest”. This is primarily due to the fact that the reasonableness and non-conformity standards associated to this shift in practice is problematic, and will likely lead to “good enough” planning rather than the best planning.

3)BILD firmly believes that a blanket prohibition against appeals of provincial decisions to approve official plans or OPAs is not appropriate. There are legitimate land use planning issues that arise in the context of new official plans or OPAs that are intended to implement provincial plans that would not factor into the Province’s decision. If the Province assigns itself the role of final decision-maker in respect of these questions, there must be a right to seek leave to appeal the Province’s decision to the Divisional Court.

4)BILD does not support the prohibition of appeals to interim control by-laws. We believe that any proposed prohibition makes this planning tool too susceptible to abuse.

5)BILD does not support doing away with “de novo” hearings as a matter of maintaining natural justice integrity and municipal efficiency. Alternative hearing efficiency recommendations are suggested in the following sections of this submission.

6)If the Province is adamant on further limiting appeals, it could allow the concept of seeking “leave to appeal” before the OMB for certain matters, rather than pure rights of appeal. For example, if the municipality approves a private application, any third party that wants to appeal the approval to the Board should have to request “leave” of the OMB, demonstrating that there are legitimate grounds for appeal that could result in a different decision. This is a variation on the power to dismiss for lack of planning grounds.

7)BILD does not support the expanded authority of Local Appeal Bodies to deal with site plan applications, as there is no operational LABs and none have proven their effectiveness. In the case of Toronto, early application fee estimates also indicate that the costs associated with the LAB are substantially higher than the OMB, further limiting access to justice.

8)The Province and municipalities must do their equal part to provide more education and engagement for residents on the planning rationale regarding OP’s, OPA’s, and by-law reviews, as well as their planning rationales for supporting or opposing development applications. Especially, on how these policies and developments contribute to the overall goals and objectives of the Provincial Growth Plan and Municipal Official Plans. This historic and systemic failure cannot continue. But if resolved, would limit unnecessary appeals to the Board.

9)BILD supports an enhanced role of the Citizen Liaison Office to provide education and assistance for those involved in the OMB process for the first time.

10)In appropriate circumstances, the Province or the Board should have the authority to assist residents with resources for independent advice from technical experts to assist them in their decision-making process.

11)Increase the number of adjudicators and enhance the qualifications and remuneration of members to attract new high quality candidates, which should result in better, clearer and more consistent decision making.

12)To enhance public and municipal confidence, we believe that municipalities could play a greater role in the appointments process. Especially regarding the appointment decisions. An independent panel (made of stakeholder representatives including municipal representatives) could prepare a short list of candidates and present them to the Province for a final decision.

13)BILD also suggests that improvements are needed to provide a more accessible and transparent reporting system to enhance the public’s understanding of the Board’s activity and operations. Reporting should be annual and include the types of appeals, the geography of appeals, and the decision history of the Board. This would provide more information to the general public, providing a greater understanding of its operations and enhance the transparency, especially as it pertains to how many major development decisions are made by the Board.

14)For private appeals, establish a timeline after the filing of the appeal within which the municipality/approval authority must hold a public meeting. This would help ensure that the public has an opportunity to learn about the appeal and the planning process, and provide input on the appeal before the first hearing event.

15)BILD would be open to consultation on active adjudication whereby the Board member(s) could be afforded great autonomy to address efficiencies throughout the hearing process. We would suggest that consultation with members of the Bar that practice before the Board happens in advance.

16)Make mediation (of some form) mandatory before the hearing on the merits, while ensuring that hearings are not unreasonably delayed. Mediation will help ensure that the public is directly engaged with the issues before the hearing on the merits.

17)Mediation service provided by the Province should also be available throughout the development application process (i.e. before an application is considered by council, after the hearing but before the issuance of a decision, etc.). The Province’s suggestion of making government mediators available for this purpose is supported by our industry.

THE OMB'S JURISDICTION AND POWER

Limiting Appeal Rights

We acknowledge that the Province is considering limiting the right to appeal provincial decisions to approve official plans or official plan amendments (OPAs) that are intended to implement provincial plans. Municipalities address a wide range of matters in reviewing official plans or OPAs under section 26 of the Planning Act. Some matters directly address the policies of provincial plans and others do not.

In our experience within the current context, the Province’s revisions largely focus on ensuring that the policies under consideration conform to provincial plans and directly account for matters of provincial interest. However, the Province does not necessarily have detailed knowledge of local planning issues and context that can be identified through appeal(s), and may not be involved in the process leading to the adoption of the official plan or OPA in question. Limiting appeals creates a mutually exclusive relationship rather than a holistic approach in the interest of the public good. It is for this reason that we believe blanket limitations are inappropriate.

Power to Prohibit Appeals in Part

The Province is also considering granting itself the power to specify that parts of its decisions on official plans or OPAs are not subject to appeal. While this approach would be preferable to a blanket prohibition against appeals of provincial decisions on official plans or OPAs purporting to implement provincial plans, the power should be limited to very explicit matters.

If the Province decides to prohibit or limit rights of appeal of its decisions, the Province must ensure that it provides an opportunity for the public and agencies to express their concerns with the official plan instruments in question and fully consider those concerns before making a decision. Furthermore, if the Province assigns itself the role of final decision-maker in respect of these questions, there must be a right to seek leave to appeal the Province’s decision to the Divisional Court.

Interim Control By-laws

The prohibition of appeals of interim control by-laws has also been raised. Looking to our municipal partners, we agree with the City of Brampton’s planning staff’s opinion on the matter (as noted in their December 5th Planning & Infrastructure Services Committee reporting) that appeals to interim control by-laws ensure that there is a balance between the public interest and zoning rights. BILD does not support the prohibition of appeals to interim control by-laws. We believe that any proposed prohibition on appeals makes this planning tool too susceptible to abuse.

“De novo” Hearings

In an effort to give more weight to municipal and provincial decisions, the Province is considering moving away from “de novo” hearings. We recognize that potentially doing away with “de novo” hearings grants a greater amount of authority to a decision of a municipal council. Holding “de novo” hearings is not unique for a land use tribunal. It is fairly common in the British legal system , and also applies to other types of tribunals in Canada . “De novo” means to hear a matter anew, or a new hearing. In actuality, it deals with the conduct of the hearing and not necessarily the standard of review.

As a starting point, we agree with the position of the Regional Planning Commissioners of Ontario in “Reforming the Ontario Municipal Board: Five Actions for Change Final Report August 31, 2016” that: “…in procedure and practice, it does not actually conduct de novo hearings”. In many ways, a hearing before the Board is no longer “de novo”, as it must have regard to the decision of council, there are restrictions on new information, and the Board cannot modify any part of the instrument that was not part of the council decision.

We also believe that common law imposes procedural requirements on the decision-maker which do not necessarily need to be accounted for in Council’s current decision-making authority. Eliminating “de novo” hearings and granting greater authority to municipalities will simply increase the burden on municipal councils, in terms of the imposition of natural justice, which is to ensure fair and adequate procedures.

For example, in consideration of a municipal council’s decision of a zoning by-law amendment, it has been ruled by the Supreme Court of Canada to be a “quasi-judicial” action (Wiswell v. The Metropolitan Corporation of Greater Winnipeg [1965] S.C.R. 512]). Thus, it is still subject to the requirements of natural justice. Turning to Ontario’s Planning Act, Section 61 deems a council’s actions in passing a by-law to be legislative, thereby acknowledging that Wiswell would constitute the actions as quasi-judicial. However, Section 61 also sets out a requirement to provide “a fair opportunity to make representation”.

To date, courts have shown relatively little interest in scrutinizing the actions of a council in this scenario, particularly as it relates to a demonstration of bad faith. This is neither surprising nor inappropriate since the Board has been held to “cure” a defective procedural (or other) decision made at council. If the “cure” is no longer meaningful, the courts will require municipal councils to provide a comprehensive representation, in accordance with the rules of natural justice, which they may not be equipped to manage from a legal perspective.

The requirement for a new hearing before the Board has many benefits, including the correction of technical irregularities by a municipality. For example, where there has been improper notice, the courts have held that these technicalities are remedied by having a new hearing at the Board . The Board is not the same as an appellate court, as it has an overriding public policy mandate beyond the interests of any party to make decisions in the public interest. For example, even when the parties have a settlement, the Board requires evidence that the instrument is good planning. It will not just accept what the parties agree to (unlike a settlement at court). This is a positive attribute of the Board that should not be interfered with.

If the OMB were to act as a true appellate body, there should be a hearing at Council. Not only is there no hearing at Council, there is often not even a decision to ‘have regard to’. A hearing at Council is impractical for many reasons, and something not even a municipality would want. The Statutory Powers Procedures Act (SPPA) would apply, as would other principles of procedural fairness and natural justice. For example, this would include the right to cross-examine, the need for written reasons for a decision, etc.

The idea of holding a hearing at the municipal level was considered previously by the Province in 1977-1979. Because of the requirement to provide a “full and fair” hearing guaranteed by the SPPA, the Province determined that such a proceeding would be costly and time consuming. There would also need to be verbatim transcripts of all oral evidence presented to Council. The Province concluded that “natural justice concerns...are adequately safe-guarded...with the continued ability to have a full hearing before the Ontario Municipal Board.”

Alternatives to “de novo” Hearings

As potential alternatives to “de novo” hearings, the Province’s consultation document suggests (a) requiring the OMB to review municipal/approval authority decisions on a standard of reasonableness, and/or (b) limiting the OMB’s jurisdiction to alter municipal/approval authority decisions only on the basis of non-conformity with existing provincial or municipal planning policy. The adoption of either of these approaches in the context of the provincial planning framework is problematic, and will likely lead to poor planning decisions. If the Province wanted to ensure the Board’s process did not constitute a “de novo” hearing, sections regarding new information and material, and limits on the OMB’s authority to only those parts of an official plan as those dealt with by council, could be further clarified (as proposed), without trying to impose a new “standard of review”.

There are practical problems with applying a reasonableness standard to municipal or approval authority decisions. For example, when an application is appealed because the municipality or approval authority has not made a decision within the statutory timeline, there is no decision to which the reasonableness standard could be applied. This is just one example.

Case law also tells us that a decision is unreasonable if it is not supported by any reasons that can stand up to a somewhat probing examination. This means that the OMB could disagree with the council decision, but still not overturn it.

There is no role for “good planning” in a reasonableness standard. Even if the Board thinks there is a better outcome, or a different decision would better conform to Provincial Policy (for example), it still could not interfere. Because planning is not black and white, but rather dependent upon compromise to balance values and interests, the tests used by a court to make decisions on legal questions do not fit within a framework of what is a good policy decision (or good planning). This is the fundamental problem and arguably why successive task forces have considered, and ultimately rejected, imposing a reasonableness standard of review.

It should also be noted that under the City of Toronto Act and the Municipal Act, no municipal by-law passed under any Act can be challenged on the basis that it is unreasonable. Reasonableness was determined to be an inappropriate test to apply to policy decisions of elected officials. The test before the Board is therefore, among other technical requirements, “good planning”. The imposition of a reasonableness standard will create a scheme for the Board that is inconsistent with the review of all other municipal actions, in addition to losing “good planning” as the proper benchmark for all decisions.

The Province has also previously considered how to make the Board act more like an appellate body, while still maintaining the right to a full hearing. One way was to make sure that the Board only dealt with the matters on appeal, and not anything broader. This has already been reflected in statutory amendments to date. The other proposal which does not seem to have been fully implemented to date concerns the question of “onus”. The Province previously proposed that the OMB Act should be amended to “reflect that a municipal decision should be assumed by the Board to be the appropriate one unless proven otherwise. The onus would then be on the appellant to demonstrate why the decision made by the municipality was not appropriate.”

While we do not believe that any change is required to reflect the Board’s appellate role, if the Province is set on changing the test from “have regard to,” the above noted onus could be set out in the statute. The Board could still overturn a decision if it disagreed or thought there was a better planning decision, but would start from the proposition that an appellant had to prove their case that a municipal decision was not appropriate in the circumstances. This would better emphasize the Board’s role as an appellate body, and would place greater emphasis on the approval authority’s decision than “have regard to”, but would retain the Board’s public interest jurisdiction to ensure good planning. On appeal, the Board should only be able to deal with the issues raised on appeal.

The Province has invested significant resources into developing a planning framework that promotes its vision of building strong, sustainable communities through efficient development. Indeed, the Growth Plan and the Greenbelt Plan have won numerous awards for excellence in planning. In order to safeguard the Province’s vision, and its investment in that vision, municipal/approval authority decisions must be consistent with provincial policy and conform to the provincial plans; reasonable consistency and reasonable conformity is not sufficient.

Likewise, it would not be appropriate to limit the OMB’s power to review situations where a municipal/approval authority decision offends existing provincial or municipal policy. There are many aspects of municipal decisions that do not engage matters that are directly addressed by existing provincial and municipal policy. Municipal councils have a natural tendency to prioritize local interests over provincial interests. Municipal decisions should be made in the context of staff recommendations (which do account for provincial interest), but this is not always the case and the outcomes can become diluted by submissions from the local public. This process can also result in decisions being made without any opportunity to gain a detailed understanding of all aspects of a planning application, including very technical matters covered in the raft of reports that must be provided.

While it is appropriate for the OMB to have due regard for municipal decisions, having the OMB as an independent arbiter of planning disputes, addressing all matters of the application rather than just those that engage provincial or municipal policies, is essential to ensuring that the best planning result is achieved. In short, we should collectively strive for great planning, not merely good enough planning.

Local Appeal Body

Finally, the Province is considering expanding the authority of local appeal bodies (LAB) to include appeals related to site plans. To date the City of Toronto is the only municipality that we are aware of, that has initiated its own LAB. As directly interested and invested stakeholders, we are concerned by this proposal as the City of Toronto’s local appeal body is not yet operational and in turn, no LAB has proven itself to take on more responsibly. We would advise against this expanded power, especially until the performance of LAB can be proven effective.

We do not believe that site plan matters should be treated as minor in nature and should be completely maintained under the jurisdiction of the Ontario Municipal Board.

RECOMMENDATIONS:

1.With the above sentiments in mind, BILD does not believe that the OMB’s approach to reviewing municipal/approval authority decisions should change, nor do we believe that the scope of the OMB’s jurisdiction should be narrowed. We believe there are other methods to improve the scope and effectiveness of the Board, which are discussed in the following sections of this submission.

2.BILD also believes that the Province should not implement additional limits on appeals of “matters of public interest”. This is primarily due to the fact that the reasonableness and non-conformity standards associated to this shift in practice is problematic, and will likely lead to “good enough” planning rather than the best planning.

3.BILD firmly believes that a blanket prohibition against appeals of provincial decisions to approve official plans or OPAs is not appropriate. There are legitimate land use planning issues that arise in the context of new official plans or OPAs that are intended to implement provincial plans that would not factor into the Province’s decision. If the Province assigns itself the role of final decision-maker in respect of these questions, there must be a right to seek leave to appeal the Province’s decision to the Divisional Court.

4.BILD does not support the prohibition of appeals to interim control by-laws. We believe that any proposed prohibition makes this planning tool too susceptible to abuse.

5.BILD does not support doing away with “de novo” hearings as a matter of maintaining natural justice integrity and municipal efficiency. Alternative hearing efficiency recommendations are suggested in the following sections of this submission.

6.If the Province is adamant on further limiting appeals, it could allow the concept of seeking “leave to appeal” before the OMB for certain matters, rather than pure rights of appeal. For example, if the municipality approves a private application, any third party that wants to appeal the approval to the Board should have to request “leave” of the OMB, demonstrating that there are legitimate grounds for appeal that could result in a different decision. This is a variation on the power to dismiss for lack of planning grounds.

7.BILD does not support the expanded authority of Local Appeal Bodies to deal with site plan applications, as there is no operational LABs and none have proven their effectiveness. In the case of Toronto, early application fee estimates also indicate that the costs associated with the LAB are substantially higher than the OMB, further limiting access to justice.

CITIZEN PARTICIPATION AND LOCAL PERSPECTIVE

We understand that the Province is reviewing the role of the Citizen Liaison Office (CLO) for the OMB. Greater promotion of the Citizen Liaison Office is needed, as we do not believe that the role of this office is widely understood, nor best utilized by the public. On numerous occasions, we have witnessed Board members and mediators taking time during OMB proceedings to educate participating citizens of the Board protocols. Notwithstanding the scope of this theme, there is a broader discussion at play – where the local perspective is concerned.

With deep respect for the challenge of this task, greater public education regarding the ever-evolving planning process, as well as provincial planning policies should be undertaken at the provincial and local level. Prior to an OMB appeal situation, meaningful and respectful public consultation meetings should occur to ensure that public participants better understand the process and scope of what is on the table for discussion. This will lead to better planning outcomes and likely result in fewer appeals to the Board. Without an active public education program regarding planning policy and the changing nature of communities, the current adversarial environment will continue to undermine the goals of provincially led planning objectives.

As a broad example, despite the growing population projected and mandated by the Province, there continues to be a lack of acceptance and understanding of the need for development to support growth in the Greater Toronto Area, initially at the municipal level and evolving into matters before the Board. As a local example, many local municipal zoning by-laws are out-of-date with respect to their as-of-right permissions and in turn, these by-laws are not in conformity with its overarching Official Plan and/or Growth Plan. This disconnect is not explained to the public, and results in misguided arguments against development that supports growth, leading to unnecessary appeals to the Board.

RECOMMENDATIONS:

8.The Province and municipalities must do their equal part to provide more education and engagement for residents on the planning rationale regarding OP’s, OPA’s, and by-law reviews, as well as their planning rationales for supporting or opposing development applications. Especially, on how these policies and developments contribute to the overall goals and objectives of the Provincial Growth Plan and Municipal Official Plans. This historic and systemic failure cannot continue. But if resolved, would limit unnecessary appeals to the Board.

9.BILD supports an enhanced role of the Citizen Liaison Office to provide education and assistance for those involved in the OMB process for the first time.

10.In appropriate circumstances, the Province or the Board should have the authority to assist residents with resources for independent advice from technical experts to assist them in their decision-making process.

CLEAR AND PREDICTABLE DECISION-MAKING

The Province is considering increasing the number of OMB adjudicators and ensuring they possess the necessary skills. We support this proposal in an effort to make the Board process more efficient. We also feel that enhancing the qualifications and remuneration of members will attract new high quality candidates and bring an even higher level of distinction to the Board.

We also believe in enhancing public and municipal confidence in the jurisdiction and power of the OMB could be established through the appointment process. An independent panel (made of stakeholder representatives) could prepare a short list of candidates and present them to the Province for a final decision. We understand that there is a pre-existing judge’s process that could be utilized as a template model. Our recommendations for this theme are listed below.

RECOMMENDATIONS:

11.Increase the number of adjudicators and enhance the qualifications and remuneration of members to attract new high quality candidates, which should result in better, clearer and more consistent decision making.

12.To enhance public and municipal confidence, we believe that municipalities could play a greater role in the appointments process. Especially regarding the appointment decisions. An independent panel (made of stakeholder representatives including municipal representatives) could prepare a short list of candidates and present them to the Province for a final decision.

13.BILD also suggests that improvements are needed to provide a more accessible and transparent reporting system to enhance the public’s understanding of the Board’s activity and operations. Reporting should be annual and include the types of appeals, the geography of appeals, and the decision history of the Board. This would provide more information to the general public, providing a greater understanding of its operations and enhance the transparency, especially as it pertains to how many major development decisions are made by the Board.

MODERN PROCEDURES AND FASTER DECISIONS

We recognize that the Province is considering ways to modernize procedures and promote faster decisions. While not explicitly stated, we believe that overly long hearings are a misconception. BILD has been advised by its active legal firms that the majority of hearings take 1-2 days. Furthermore, we have been advised that most cases are small and efficient. We also believe that faster decisions should not come at a cost of thoughtful decisions. Regardless, there are efficiencies that could be made to the hearing process that would reduce the timeline without rushing the ultimate decision at the end of the process. Our recommendations for this theme are listed below.

RECOMMENDATIONS:

14.For private appeals, establish a timeline after the filing of the appeal within which the municipality/approval authority must hold a public meeting. This would help ensure that the public has an opportunity to learn about the appeal and the planning process, and provide input on the appeal before the first hearing event.

15.BILD would be open to consultation on active adjudication whereby the Board member(s) could be afforded great autonomy to address efficiencies throughout the hearing process. We would suggest that consultation with members of the Bar that practice before the Board happens in advance.

ALTERNATIVE DISPUTE RESOLUTION AND FEWER HEARINGS

This aspect of the review is of particular interest to BILD, as we actively seek mediation in the majority of appeals that we have been apart of. Mediation has resolved many cases for our industry and our BILD Executive Committee believes in this mechanism as a means to find an appropriate balance between the industry and municipal desires.

We understand that the Province is considering more active promotion of mediation, and this could be required before a hearing. We support the active promotion of mediation, which we have found to be very useful in scoping appeals addressing procedural matters, and resolving procedural issues, even in scenarios where full settlement is not achieved.

Furthermore, BILD could support mandatory mediation, except in the simplest of cases (suggestion of hearings in excess of one or two weeks). Thereby, reducing the number of full hearings or the scope of hearings before the Board. At a minimum, all files would benefit from a confidential informal pre-mediation meeting, where the Board could assess the procedural approach to proceed with a mediation or pre-hearing.

BILD recognizes that promoting enhanced mediation services would require more experienced mediators. More details are necessary to understand how the parties could engage in enhanced mediation services.

RECOMMENDATIONS

16.Make mediation (of some form) mandatory before the hearing on the merits, while ensuring that hearings are not unreasonably delayed. Mediation will help ensure that the public is directly engaged with the issues before the hearing on the merits.

17.Mediation service provided by the Province should also be available throughout the development application process (i.e. before an application is considered by council, after the hearing but before the issuance of a decision, etc.). The Province’s suggestion of making government mediators available for this purpose is supported by our industry.

CLOSING REMARKS

BILD maintains its strong support for the essential role of the OMB as an impartial, evidence-based, administrative tribunal that is responsible for handling appeals of land use planning disputes.

Before making significant changes, the Province should recall that the OMB is designed to ensure the appropriate implementation of provincial policy. The OMB serves as the last line of defense against decisions that, even if politically expedient for a municipal council or approval authority, may not represent good planning. Service to the broader public interest in good planning sometimes comes at the cost of unpopularity among certain individuals or groups. In other words, the local interest is not always the public interest.

[Original Comment ID: 206863]