On 13 January 2014, at Newmarket‘s Committee of the Whole, councillors will decide whether or not to enter into mediation with the rapacious Marianneville Developers who want to build 730 new dwellings in the heart of the Glenway neighbourhood.

The hearing proper will be in two phases. The first is scheduled to begin at 10am on 17 March 2014 in the Ontario Room at the Best Western Voyageur Place Hotel in Newmarket and will consider whether any development at all should be permitted. The second follow-on hearing will look at the details of the proposed development of Glenway.

At the pre-hearing conference on 10 December 2013, the OMB adjudicator, Jason Chee-Hing, said:

 “The Board strongly encourages the Parties to consider mediation to potentially resolve some or all of the issues.”

The Delphic Chee-Hing, unfortunately, gives no indication of what was in his mind when he said this. Is he asking councillors – who have only recently voted unanimously against any development at Glenway - to set this to one side and to start thinking about what, in extremis, might, just possibly, be acceptable?

Is the OMB Adjudicator seriously expecting councillors, in advance of Phase 1, to give direction to staff on Phase 2 issues? Council staff will be doing the mediating but they will need to know the parameters within which they are operating. They need to be told how far they can go in trying to reach a settlement with Marianneville (which would, of course, need to be ratified subsequently by councillors).

Details of the Council’s negotiating and fall-back positions could even leak into the Twitterverse.

Mr Chee-Hing is also coy about whether he would rule on the principle of development after hearing the arguments on Phase 1.

“The Board, at its sole discretion, may issue a decision following the completion of Phase 1 or proceed to hear both Phases before making a decision in these matters.”

This is an absurd way to proceed.

Mr Chee-Hing should have made it clear that he will issue his ruling after Phase 1. At that stage, if he decides that some or all of the proposed development should be allowed, he can then invite the Parties to enter mediation.

There is simply no point asking the Town and the Glenway Preservation Association to sit down with Marianneville. They are poles apart.

If the Town and GPA make concessions and move away from their principled “no development” position, even marginally, the whole Glenway coalition, painstakingly built up over the last two years, will fall apart.

The OMB is wedded to mediation as a way of getting parties to settle, often by splitting the difference. But, sometimes, it doesn’t work.

“If mediation does not resolve the issue, then the OMB will schedule a public hearing. Similar to a Court proceeding, an OMB hearing requires that parties must swear to tell the truth. A different member than the one who guided the mediation will be assigned to hear the matter. Nothing relating to the mediation, except those matters that have been agreed to, can be revealed to the Board Member presiding at the hearing.”

Mediation suits the developers. They want to know how many sweeteners they need to offer in order to win councillors over to their pro development position.

If one breaks ranks (and the rabidly pro development Maddie Di Muccio is, surely, a likely candidate), others may follow.

There is absolutely no point in the Town or Glenway showing their hand to the developers at this stage. Instead, they should formally advise the OMB that mediation is something that should only be contemplated after Phase 1 has been decided.

And, in the absence of further elucidation from Mr Chee-Hing on what he meant when he “strongly encouraged” the parties to enter mediation, I would ask the OMB for a new adjudicator to preside over the main hearing.

It seems to me that Jason Chee-Hing has already made his mind up. 

 MEMORANDUM OF ORAL DECISION DELIVERED BY JASON CHEE-HING ON DECEMBER 10, 2013 AND ORDER OF THE BOARD

[1]            At this pre-hearing conference (“PHC”), the Board dealt with a motion brought by the Town of Newmarket (“Town”) for the adjournment of the hearing and to phase the hearing.  The hearing of these consolidated appeals had already been set down for March 3, 2014 for approximately eight weeks.

[2]            Specifically, the motion sought a Board Order to:

a.       Phase the hearing into the following phases:

I.    Phase 1 – Principle of Development

II.  Phase 2 – Details of Development

b.       Adjourn the commencement of Phase 1 for five weeks and amend the Procedural Order (“PO”) to make appropriate changes to the exchange dates.

c.       Alternatively, an Order of the Board to adjourn the commencement of the hearing to June 2014 and amend the PO to make the appropriate changes to the exchange dates (Exhibit 1).

[3]            The Glenway Preservation Association (“GPA”) supported the Town’s motion. The Region of York took no position. Marianneville Developments Limited (“Proponent”) was opposed to the motion. The proponent summonsed Ruth Victor who is the Town’s external planning consultant. Motion and response to motion filings were received by the Board.

[4]            The Board, after considerable arguments put forth by the Town and the Proponent, ruled that the Proponent’s “without prejudice” settlement offers and settlement discussions detailed in its motion filings were admissible in these proceedings as these settlement offers were discussed publicly by Town staff. The Town chose to put in the public domain its analysis of the settlement offers. The Town’s position was that these settlement offers were subject to settlement privilege as they were made “without prejudice” by the Proponent and as such should be inadmissible. In the Board’s view, the settlement offers and discussions were clearly in the public domain and did not meet the tests of settlement privilege discussions.

[5]            After much debate and following the testimony of Ms. Victor, the Parties eventually reached a resolution on the Town’s motion. There will be two Phases to the hearing within the ambit of one hearing. The appeals remain consolidated. The hearing will commence on March 17, 2014 at 10 a.m. and will be for approximately six weeks. The overall hearing length has been reduced by two weeks. The issues list for Phase 1 has been revised. The timelines for the exchange of witness lists, witness statements and responding witness statements are detailed in Exhibit 6. The Parties will modify the PO in accordance with the agreement and submit to the Board forthwith.

[6]            The Board, at its sole discretion, may issue a decision following the completion of Phase 1 or proceed to hear both Phases before making a decision in these matters.

[7]            Lastly, the York Region District School Board (“YRDSB”) requested and the Board granted party status in these matters. The YRDSB had, at a previous PHC, requested Participant status. The YRDSB proposes to locate an elementary school within the subject lands.

ORDER

[8]            The Board orders that the Town’s motion is granted in part and the hearing start date and the PO are amended in accordance with the resolution found in Exhibit 6 and provided as Attachment 1.

[9]            No further notice is required. This panel of the Board will continue with the case management of these matters but is not seized of the main hearing.

[10]        The venue for the hearing remains the same.

[11]        The Board strongly encourages the Parties to consider mediation to potentially resolve some or all of the issues.

“Jason Chee-Hing”

JASON CHEE-HING

MEMBER