Law Times

Page 10 June 27, 2016 • Law Times www.lawtimesnews.com Passing of Bill 73 means changes Questions swirling about new ADR provision BY YAMRI TADDESE Law Times A s part of a slew of changes coming to Ontario's planning and development law with the passing of Bill 73, dis- putes between municipalities and developers can now be re- solved via mediation before the appeal goes to the Ontario Mu- nicipal Board. Bill 73, called the Smart Growth for Our Communi- ties Act, received royal assent in December 2015. Among other things, it's meant to give mu- nicipalities more independence and create efficiencies. But ques- tions remain about specifics sur- rounding the bill's alternative dispute resolution provision, in- cluding who will pay for media- tion or conciliation. "One of the criticisms for the mediation provision in Bill 73 is that there's a lot of unknowns," says Isaac Tang, municipal and development lawyer at Borden Ladner Gervais LLP. For a lot of those gaps, "It's not known whether or not the province through regulations will provide guidance or wheth- er it's something left for the mu- nicipalities to decide," Tang says. Mediation services already exist within the OMB. Allowing city councils to mediate matters before the OMB gets involved is likely meant to put more control in the hands of municipalities, according to Jason Park, munic- ipal lawyer at Devine Park LLP. But, Park says, "It's a bit of window-dressing at the end of the day," adding that both com- plex and simpler cases are al- ready mediated by skilled board members at the OMB. Outside the OMB, "I'm a little skeptical as to who the media- tors actually are," Park says. "We don't have a lot of details as to how this process is going to be set up, who is going to pay for it. There's a lot of uncertainties." Park says his preference would have been to see the prov- ince pump more money into the OMB to allow for greater access to mediation at that level. Board members at the OMB have cred- ibility and knowledge of the area, he adds, noting they're much more likely to be trusted when they tell parties what to expect in litigation in case me- diation efforts fail. When mediation is used, it typically means the issues be- ing adjudicated are well known, that the parties have respect for the mediator chosen, and the parties have something to lose in case the mediation does not succeed, according to Tang. He says that, in the case of the changes under Bill 73, these three criteria are missing. All three factors are "typically not there" early on in the pro- cess, Tang says, adding that if the OMB decides to mediate mat- ters, it's because the matter has advanced to a point where the issues are well known and me- diation is likely to be successful. "When you look at appeal matters filed with munici- palities, most appeal letters are bare," he says, adding the details of the real issue are generally not drilled down until much later. In this case, it's also not clear whether the parties have respect for the mediator chosen because it's unknown who will be chosen as a mediator and who can make that choice, Tang says. "Is it the municipality who gets to choose? Is it the appel- lant who gets to choose? Is it someone that they have to agree upon?" he asks. "You want to make sure that whoever is giving you advice at the end of the day understands the issue on both the private sec- tor side and the public sector side." Parties are also less likely to feel as though they have a lot to lose in case mediation fails if they are entering mediation at the beginning of the process, Tang says. At that point, they haven't invested a lot of resourc- es in the process, he adds. "Normally, mediation hap- pens when most of the chips are on the table," Tang says, add- ing that parties typically know the strength of their case at this point and if they're better off avoiding a trial. "Earlier on, a lot of these fac- tors are unknown." But Tang says early ADR may come in handy when the issue to be resolved is a matter of policy clarification. He also says that, generally, mediation will allow parties to assess the risk of litigation. According to the act, mu- nicipalities that wish to resolve disputes without going to the OMB must notify all of the ap- pellants involved in the matter. They must then invite the ap- pellants to mediation, and the appellants are entitled to refuse to engage in alternative dispute resolution processes. The Ministry of Municipal Affairs and Housing says this specific provision of Bill 73 will create more efficiency. "Allowing more opportunities to resolve disputes locally . . . make it easier and more efficient to re- solve disputes without going be- fore the Ontario Municipal Board," the ministry wrote on its web site. "For example, munici- palities will be allowed time to en- gage in alternative dispute resolu- tion. And, the ability to appeal some items will be removed." LT FOCUS We don't have a lot of details as to how this process is going to be set up, who is going to pay for it. Jason Park Isaac Tang says questions persist when it comes to the mediation provision in Bill 73. © 2016 Thomson Reuters Canada Limited 00238DD-70218-SK A practical guide to the legal issues impacting acute care medicine AVAILABLE RISK-FREE FOR 30 DAYS Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 Order # 987258-65201 $135 Softcover July 2016 approx. 375 pages 978-0-7798-7258-9 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Get expert insight on the legal principles that impact standard of care, capacity, informed consent, privacy and confi dentiality, and substitute decision-making. The authors also examine the controversial area of end-of-life-care, analyzing the impact of high-profi le cases such as Rodriguez v. 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