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April 03, 2018

Getting to Consensus – Keep the Lawyers Out of the Room

Getting to Consensus – Keep the Lawyers Out of the Room
Have you ever felt that sinking feeling as you prepare for an Ontario Municipal Board (OMB) hearing? Ever feel like it’s all in the hands of the lawyers anyway? If only the planners could just get together and find solutions without the legal process taking over.
Downtown Alliston, Simcoe County, Ontario.
Well, we accomplished just that during the OMB hearing process for the County of Simcoe’s Official
Plan. Rather than the typical OMB hearing process that entails setting out a Procedural Order and holding the obligatory experts’ meeting(s) to lay out the list of issues and agreed upon statement of facts, which then entrenches positions and leads to a lengthy contested hearing, instead we embraced the experts’ meetings with a goal of trying to resolve the issues and not require a contested hearing.

As a result, we wrapped up a three-and-a-half year process, covering 16 pre-hearing conferences, without the need for contested hearing time.

How did we do it?

The planners sat down and worked through the Official Plan on a topic-by-topic basis and kept the lawyers out of it!

Planners and lawyers are different. Planners are naturally solution-oriented. Planners appear before the OMB and our duty is to provide fair, objective and non-partisan evidence and assistance to them. Lawyers are trained for conflict and their duty is to their client by diligently and completely advocating their position.

What happened in Simcoe County that can be replicated elsewhere?
  • The hearing was phased by topics, and each phase had its own pre-hearing
  • Sought early partial approval of the Official Plan on the parts where there was no issue. The Plan had been appealed in its entirety for a lack of decision
  • Tackled the “low-hanging fruit,” first developing momentum and building up trust amongst the planners
  • All parties were ordered by the OMB to produce detailed issues lists, summarizing the specific parts of the Official Plan where they objected
  • Parties were identified to participate in the phases of the hearing based on their issues
  • Confidential, without prejudice experts meetings were held allowing for active participation by all
  • As sections of the Official Plan were approved, the OMB Order contained a “with prejudice clause” indicating the finality to not re-open those sections

All issues and ideas were explored. We recorded our progress and met regularly to keep the momentum going and strive for consensus. Each expert’s report was carefully worded to address where experts may not be opposed versus having agreed with the proposed modifications. This covered situations where an expert represented a party with a specific issue in that phase, and they participated in the entire discussion but did not need to approve proposed modifications that were not part of their party’s issues list.

The number of parties involved varied at any given phase, but always included the County and its 16 local municipalities, the Province as well as planners representing private interests.

Planners have a responsibility to our Professional Code of Practice. We must define and serve the interests of the public. Building consensus sometimes meant setting aside small matters for further discussion and continuous sifting and narrowing of the issues. We built a level of trust and respect for each other through active listening and compromise.

As we move forward with the Proclamation of the Building Better Communities and Conserving Watersheds Act (Bill 139), removing the OMB and introducing the Local Planning Appeal Tribunal (LPAT), how will RPPs adjust?
Simcoe County, Ontario.

The traditional hearing process and experts meetings will change. Some have said that without a hearing and that tension in the system, there will be no willingness for cooperation on the part of municipalities, developers or planners to work together for solutions.

I think as professional planners we owe it to the public to ensure the outcome of any negotiation is the best possible one for our communities. Planners can lead by example and work together to resolve matters and see that good planning will prevail with or without the OMB. We all just have to be willing to try.  

The views expressed in this blog post are those of the author(s), and may not reflect the position of the Ontario Professional Planners Institute.

Post by Kathy Suggitt, RPP

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