There has been a considerable increase in the use of mediation to resolve land use disputes in Ontario in recent years. However, recent changes have cast doubt over the continued use of mediation to resolve planning disputes.
Mediation under the Ontario Municipal Board
Parties to planning disputes (typically applicants, objecting neighbours, municipalities and provincial ministries) have been authorized to request alternate dispute resolution (ADR), including mediation, on discretionary basis since 1994 under the Planning Act. Mediation increased significantly in the past few years, due to legislative changes, new decision-makers and increasing hearing costs.
Bill 73, which came into force in 2016, allowed the use of ADR for specific planning approvals, including official plans, rezonings, plans of subdivision and consents. It also encouraged municipal councils to use mediation prior to appeals to the OMB and extended timelines for forwarding appeal records if they did so.
In February 2017, James McKenzie, an experienced mediator was appointed Associate Chair of the OMB. He personally mediated complex disputes and encouraged additional ADR training for OMB members. Planning disputes became subject to more provincial policies and plans, resulting in longer oral hearings, more witnesses and greater costs. Most significantly, applicants, objectors and public sector parties frequently determined that none of them had enough power to ensure that they could unilaterally convince the OMB that their position met the general criteria of good planning.
Consequently, mediation was requested more frequently by land use stakeholders. By the end of 2017, the majority of significant development appeals before the OMB were settled by mediation.
Local Planning Appeal Tribunal (LPAT)
Bill 139, introduced in May 2017, proposed changes to the planning process by replacing the OMB with the LPAT. As soon as Bill 139 was introduced, a number of developers appealed proposals to the OMB under the existing provisions of the Planning Act (OMB legacy appeals). By November of 2017, the number of OMB legacy appeals more than doubled compared to the previous year. On December 12, 2017, Bill 139 came into force, together with related regulations dealing with transitional matters.
On April 13, 2018, the Local Planning Appeal Tribunal (LPAT) replaced the Ontario Municipal Board (OMB) as the body to resolve most planning disputes in Ontario.
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This article is intended to be an overview and is for informational purposes only.