The role of the planner has become somewhat of an amorphous concept, which encompasses much more than forming an opinion on the merits of a proposal, and conveying that opinion in the approval process. Planners are often the public face of a project. As such, this squarely places the question: is it appropriate for a planner to be a lobbyist? In turn, this is part of the larger question on the role of “advocacy” in the planning profession. As with most legal questions, the answer is not found by reference to a single rule or source that governs every situation. Instead, the analysis requires a contextual approach.
The Ontario Municipal Board has taken a consistent line: a planner is not and must not behave as an “advocate” in that forum. Further, pursuant to the OPPI Code of Conduct, planners have a primary responsibility to define and serve the interests of the public. The inevitable question arises: how does one reconcile the planner’s duty to the public interest and the Board, with the practice of lobbying?
In our view, the key is in a more nuanced understanding of the word “advocate”. Planners can be advocates, but only for their own opinions, and not for their clients’ interests. Under this view, planners are not prevented from holding views forcefully and defending them. This is not advocacy of a client position, but defence of a professional opinion, and is an acceptable posture for a planner, provided that s/he has conducted an independent analysis and conscientiously formed that opinion. The other kind of advocacy (i.e. for a client’s benefit) does not require professional independence or objectivity, and planners should not undertake it.
Planners should consult and follow the OPPI and CIP Codes of Conduct, and ensure that they properly reconcile their retainers with their primary responsibility to the public interest. They should also ask themselves early in their retainers whether it would be possible for them to engage in lobbying and later sign the Board’s Acknowledgement of Expert’s Duty. In matters likely to wind up at the Board, it would be a serious disservice to a client to be unable to testify, or to have one’s credibility damaged by a skillful cross-examination about pre-hearing advocacy or lobbying.
Finally, planners must be particularly aware of the rules for contact with politicians and staff in municipal jurisdictions with lobbyist registries. For example, in the City of Toronto, there are obligations on lobbyists to register and comply with Chapter 140 of the Municipal Code.
Taken together, these thoughts counsel caution. The planner must ask: should I be the lobbyist, or should that task be performed by someone else? And, having taken on that role, a planner must scrupulously ensure that they act as an independent expert, and are seen to be doing so.
By: Matthew A. Di Vona
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This article is based on a presentation given by Mr. Michael Melling (Partner, Davies Howe Partners LLP) for the Law Society of Upper Canada. Having said that, the opinion stated herein is my own responsibility.
