September 17, 2018 3:03 PM
Over the last four years since I’ve been the City’s Chief Planner, I’ve been asked multiple questions on the Local Planning Appeals Tribunal (LPAT) appeals process, the various statuses of land use matters under appeal and how the settlement process works in Ontario. I want to clearly state that I am not a lawyer, but I have developed an understanding of land use planning law through professional practice over the past 14 years. These are important questions and critical discussions for us to have as an engaged community and I want to support open dialogue. In this post I intend to offer information to help explain the purpose of settlement in land use appeals and why negotiations on settlements are done by the City and appellants on a confidential basis.
Why is settlement a tool that is encouraged for land use appeals?
Settlement is encouraged in most legal proceedings including land use planning matters before the LPAT, formerly the Ontario Municipal Board (OMB), because it is an opportunity for a resolution that is mutually agreed to by the parties versus an imposed decision following a hearing. In particular, settlement is in the public interest because it can greatly reduce the costs of the hearing for the involved parties and may even eliminate the need for a hearing. Under the Rules of Professional Conduct, lawyers have an obligation to discuss settlement with their clients and to advise and encourage settlement on disputes where it is reasonable to do so. This is not to say that a negotiated settlement is the right choice in every land use planning matter, but it is an important tool for consideration.
What is settlement ‘privilege’ and why is it important?
Settlement privilege essentially means that information exchanged, obtained and discussed by the parties at settlement discussions and mediations are confidential and are not admissible as evidence at a hearing. As the Supreme Court of Canada noted in the Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35 decision, “[t]he privilege wraps a protective veil around the efforts parties make to settle their disputes by ensuring that communications made in the course of these negotiations are inadmissible.”(at para. 31).
In a paper presented to the Ontario Bar Association by the law firm of Wood Bull entitled paper “Mediations and Settlement Discussions: Confidentiality and other Ethical Issues” (Wood Bull LLP, 2003) the following is quoted “The purpose of settlement privilege is to promote settlement. It is based on the belief that litigants would be reluctant to participate in settlement negotiations or mediation if information revealed during the negotiation or mediation process could be used against the party should the matter proceed to hearing. Without the assurance of confidentiality, parties may choose not to participate in settlement discussions in a meaningful or productive way. Therefore confidentiality is considered essential to the encouragement of settlement discussions and mediation.”(page 3)
Settlement “privilege” at the City of Kingston
Plainly spoken, settlement privilege is what allows the City to confidentially negotiate with an appellant on a land use appeal without that information being publicly released during the settlement process. If the City is able to reach a negotiated settlement and the parties have agreed to these terms in a legal agreement, the City is able to publicly discuss the details of that settlement. It is important to understand the application of this principle of settlement privilege in the context of the land use appeals process in Ontario.
It is also clear that it is not always possible for the City and the appellant to arrive at a settlement and therefore hearings are also an important part of the appeals process for land use matters. If the ‘privileged’ details are openly discussed when a settlement cannot be reached between the parties, the City’s ability to defend its position at a full hearing could be compromised.
I would conclude that it is within the public interest for settlement/mediation to be considered by the City during the time that precedes a hearing. If a negotiated settlement can be reached and presented to the LPAT, it will help to narrow the scope of the hearing from a content and timing perspective and can also help to expedite a decision from the LPAT as opposed to waiting for a written decision following the completion of a lengthy and expensive hearing. Finally, it is also important to note that even when settlements are reached between parties to the appeal, the LPAT renders the final decision upon the land use matters under dispute.
I am providing a link to a paper referenced above that I hope will provide further information on settlement and settlement privilege.