Lessons about Municipal Governance: A Conversation with Mary Ellen Bench

Mary Ellen Bench, an experienced municipal legal advisor, shares her insights on working with the legendary Hazel McCallion, the challenges faced during Toronto’s amalgamation and lessons learned, and the evolving role of municipal legal advisors. She also discusses how to address the current bottlenecks in land development and some broader issues facing municipalities.

We’re curious about your experience working with Hazel McCallion, often regarded as the original strong mayor. What was that like?

Hazel was truly amazing to work with. I learned more from her than I did in law school or from previous work experiences. Her approach was to focus on resolving issues, regardless of what they were, and she treated Mississauga like it was her own private company. She was passionate about everything related to the City. When there was a dispute, a key development, or a priority infrastructure project, she’d get everyone into a boardroom and tackle it head-on.

She came prepared, always doing her homework, which was one of her key slogans. She directed the meeting using a list of the main points to be made. She knew who on the city team would speak, and in what order. Then, she would position herself in front of the door, essentially saying, “No one leaves until this is resolved.” She knew how to keep discussions concise and to the point. If you were too detailed, she had no problem cutting you off, even if you were on her team.

Hazel also didn’t hesitate to pick up the phone to call a provincial minister, federal minister, or even a large business owner to get things moving. She had the personality, history, and accomplishments that made people respond to her. Not every mayor has that ability, even with strong mayor powers today.

You were also involved in the amalgamation of Toronto, which was a seismic change. Looking back 25 years later, what lessons do you think were learned?

Reflecting back, if we had used Hazel’s approach during amalgamation, we might have managed things better. Amalgamation of all seven municipalities caught everyone by surprise. I was on the old City of Toronto team when it happened, and it was a shock. We tried fighting it through public campaigns and a court challenge, but ultimately, the court ruled that what the premier did was legal.

Once we set aside our differences and accepted that amalgamation was happening, we started to work together. People in municipal government have a strong sense of teamwork, and everyone came together to make sure it worked. However, we always knew that costs would go up, not down. The province kept saying that amalgamation would create efficiencies, but we had done our homework and studied other amalgamations, like in New York City and Halifax. We found that service levels and collective agreements usually rise to the highest level, which is precisely what happened.  Efficiencies achieved did not reduce cost.  Some departments, like legal services, grew significantly to meet the needs of the new City and update bylaws and the Municipal Code to apply across the new municipality.  The Zoning Code is still a work in progress!

Focusing on your role as a legal advisor, what do you think it takes to be successful in municipal law, and is that role evolving?

Your ultimate client in a municipality is the council, but before you get there, your job is to respond to staff so everyone working for the municipality can advance their projects.  You need to understand how all the departments fit together and become a trusted advisor to staff at all levels.  The role of City Solicitor is like the role of General Counsel in private sector companies, and that individual must have a good understanding of all matters impacting the corporation, not just those referred to legal, and ideally a seat at the executive management table.

One of my key rules for my staff was, “You can’t say no without talking to me.” Municipal law is a spectrum of grey rather than black and white, especially under the Municipal Act, 2001, which gives municipalities broad authority to govern their affairs and respond to municipal issues. The courts have agreed in interpreting these powers, as seen in several Supreme Court of Canada decisions.

Another critical factor is building a solid comparative information base and understanding policy and legal changes taking place beyond Ontario, looking at examples from across Canada, the U.S., and even Europe and Australia. Having a broad network of contacts, both locally and internationally, is crucial. I’ve drawn on precedents from various countries and worked with legal teams worldwide.  Like any professional, the network of contacts can be critical to providing timely advice to your client.

That network-building seems particularly valuable in the municipal space, where resources can be limited. How did this benefit your work?

Absolutely, especially when dealing with situations like the judicial inquiry in Mississauga. Finding Canadian examples was challenging because most judicial inquiries here involve procurement issues, not the kind of situation we faced. I turned to my network in the U.S., finding helpful lawyers in Austin, Philadelphia, and New York City. This global network enabled me to address problems quickly because, in municipal government, you rarely have weeks to figure things out—you’re lucky if you get a day.

When you face unique challenges, such as cyber-attacks, regulating smoking or cannabis, Charter issues, homelessness, or sanctuary, having that network means you can quickly find helpful advice, often within hours, from someone who is just a little ahead of you. We would often form networking groups to discuss issues as they progress. By combining our resources, we had complete information quicker and at a lesser cost than if we tried to problem solve alone.

We’ve seen attempts to change the rules to unlock the bottleneck in building homes. From your perspective, what changes could help?

Municipalities’ biggest challenge is money. Liability concerns keep them risk-averse. If the province would grant municipalities a degree of immunity similar to Crown immunity, it would go a long way in easing some of these pressures in everything municipalities do.  In planning and building approvals, it would allow for municipalities to be more open to consider new technology, such as modular construction, faster. I think the focus needs to shift from planning policy to process.

One change I’d like to see in the Planning Act is the introduction of a test for frivolous and vexatious complaints. Recent legislative changes respecting who can appeal, is a good start. Many comments made at public meetings are timewasters, often brought by residents or ratepayers who don’t want change in their neighborhood; NIMBY. They’ll cite reasons unrelated to planning, or exaggerate impacts.  If we had clear guidelines on what constitutes a valid planning concern, it could save a lot of staff time and grief for council members. Eliminating their right to appeal means they push harder to get council to oppose a good development.  As a mayor once told me, Council can keep resident support and know the OLT will do the right thing.

These objections would only multiply with intensification. If there were some ground rules in legislation allowing the OLT to dismiss these non-planning-related objections, it would make things easier for politicians, too, allowing them to focus on real concerns rather than facing backlash from residents for every project.

Perhaps a test for frivolous objections could make life easier for everyone involved.

Yes, and it would help politicians do their jobs without being subject to abuse, especially when they see these residents at the grocery store or library. Hazel had the credibility to dismiss objections, but not every politician has that luxury. A clear legislative recognition of what is a frivolous complaint or appeal and the ability for municipal staff and the OLT to disregard them would help immensely.