Mediation Can Resolve Land Use Disputes

If you want to change the way land is used in Ontario, you must almost always obtain municipal approval. You will face a lengthy hearing process if a neighbour, competitor or municipality objects. Mediation offers the possibility of a quicker, cheaper resolution, with greater certainty of result.

Perhaps you are a builder who wants to split an existing lot into two, and build two houses; an educator who wants to locate a day care or private school in a residential neighbourhood; or a developer who wants to replace an old factory with a residential condominium.

Neighbours, municipalities, commercial competitors or other objectors can appeal the municipal decision, and request a hearing from a tribunal, such as the Toronto Local Appeal Body (TLAB) or the Ontario Land Tribunal (the OLT is the successor to the Ontario Municipal Board and Local Planning Appeal Tribunal).

Resolving such land use disputes through traditional court-like hearings before a tribunal is often expensive and time consuming. It can take well over a year for an appeal to be heard by the Ontario Land Tribunal. Legal and expert witness costs for a contested hearing can exceed $75,000 per week for each party. A hearing before TLAB to obtain minor variances for a single house can take many days. Despite the best efforts of lawyers and consultants, it is often difficult to predict the results of such hearings.

That’s why applicants, public agencies, resident groups and neighbours are now looking for alternatives to such hearings to resolve disputes.

The parties can decide to discuss and negotiate with each other. But parties are often emotionally involved, and dig in to assert what they regard their rights. It is often helpful for the parties to seek assistance from a neutral 3^rd party, such as a mediator, to help them to resolve their disputes.

Mediation is a confidential process in which the parties talk about their differences with the help of a neutral third party, and try to negotiate a consensual resolution of some or all of the issues in dispute.

The Planning Act has authorized applicants, municipalities and objectors to use mediation, conciliation or other dispute resolution techniques for some time. In recent years mediation has successfully resolved a number of high profile disputes, such as the redevelopment of the former planetarium on the University of Toronto campus.

Parties may ask members of the OLT to conduct a mediation in accordance with the OLT Rules. The mediation may be conducted by a member of the OLT, a mediator approved by the Chair of the OLT, or a private mediator. If the mediation does not succeed, the case can still be heard by a person other than the mediator. Parties appearing before TLAB on appeals of consents and minor variances are also encouraged to settle disputes, but the mediation process is not as well developed.

For more information, please contact Ron Kanter. Ron has earned a Certificate in Mediation from the Harvard Program on Negotiation, and has mediated land use and construction disputes involving developers, builders and homeowners.

This article is not intended to serve as a comprehensive treatment of the topic and is not legal advice. All legal matters are dealt with pursuant to their specific facts and circumstance. Nothing replaces retaining a qualified, competent lawyer.