The City of Toronto (the “City”) is recommending a city-wide approach to the identification and listing of multiple properties for inclusion on the City’s Heritage Register. The approach builds on the City’s evolving and strategic use of Historic Context Statements to guide the identification of cultural heritage resources. The proposed process, methodology and recommended properties for listings were brought to the Toronto Preservation Board (“TPB”) on November 30, 2020. The TPB recommended that the revised reports be adopted by the Toronto and East York Community Council on December 2, 2020 and City Council on December 16, 2020 (here). City Council has since adopted the proposals without amendment (here).
Currently, city heritage staff undertake heritage surveys in tandem with planning studies to identify properties of potential heritage value. The staff then recommend that an area be studied further or receive immediate protection. Because this approach only conducts heritage surveys where a planning study is already prioritized (in areas with high growth potential), the City claims that this will make the listing process more effective.
City Council mandated City Planning to launch the Toronto Heritage Survey in 2019. The goal was to create a city-wide strategy that constitutes good planning, operational efficiency and greater predictability by creating a systematic study throughout the City, rather than listing on a case-by-case basis. The Survey results are used to provide an understanding of the historical evolution of the City and its neighbourhoods. The register is publicly accessible online with advanced search functions (register search).
The Survey identifies sites with cultural heritage value according to a defined list of criteria. The first phase of the process focused on building resources and testing models prior to reporting back to Council. Planning Studies and Heritage Surveys were done for Midtown (King-Spadina); College Street (Huron to Bathurst); and Broadview Avenue (Danforth to O’Connor) identifying approximately 1500 properties as having potential heritage value.
City Council recently reviewed and adopted the following new studies that collectively list approximately 966 new properties:
|Danforth Avenue Planning Study||Danforth Avenue (Coxwell Avenue to Victoria Park Avenue) and Dawes Road||165 properties|
|King-Parliament Secondary Plan Review Area
|North side of Queen Street East, between Jarvis Street and River Street||257 properties|
|Forest Hill Village Urban Design Guidelines Study Area
|Four corners of Spadina Road and Lonsdale Avenue||16 properties|
|Ossington Avenue Planning Study Area
|Ossington Avenue (Queen Street West to Dundas Street West)||38 properties|
|Queen Street West Planning Study||West, Queen West and Parkdale Main Street Areas||325 properties|
|Dundas Street West and Roncesvalles Avenue Built Form Study Area
|Dundas Street West and Roncesvalles Avenue||162 properties|
|Cabbagetown Southwest Heritage Conservation District Study||Outside the original study, Berkeley Street||
All properties have been reviewed to confirm their cultural heritage value in consideration of the Ontario Heritage Act (the “Act”), Ontario Regulation 9/06 and Toronto’s Official Plan requirements for listing.
An owner who intends to demolish a non-designated but listed property, must notify the City within 60 days of their intention to demolish a structure. The owner will have to submit plans, as determined by City Council, for review by Heritage Planning. City Council then has a fixed period of time to decide whether the property meets the designation criteria under the Act and if it does, to issue a notice of intention to designate the property. The owner can reject the notice of intention by serving the clerk a notice of objection within 30 days.
Under the Ontario Heritage Act, the City’s Register may contain property that has not been designated where the council of the municipality believes the property to be of cultural heritage value or interest. The Official Plan requires that the proposed properties be identified and evaluated to determine their cultural heritage value or interest. These cultural heritage values include design or physical value, historical or associative value and contextual value.
The City is now focusing on contextual value rather than historical and associative value as historical and associative value are not visually evident without an extensive evaluation process.
Two proposed methodologies are being discussed, both taking a contextual approach that will work together:
- Historic Context Statements – this method is based on prevailing building types and common descriptions of each building type. It is similar to what has been used in the past but consolidates shared features and removes reference to terms more often used for designations under Part IV of the Ontario Heritage Act (e. a legal description of the property; name of the owner; and a statement explaining the cultural heritage value); and
- Descriptive Listings – this method is an abbreviated version of the past approach and will be used where a Historic Context Statement has not been defined or where a property’s heritage value relates primarily to its design, physical, historical or associative values.
Davies Howe LLP would be happy to discuss this new Heritage Listing Process with you further.
Davies Howe has moved up in the 2020 Nova Res Urbis (NRU) rankings to clinch the #1 spot for law firms in the GTHA and retain the #3 spot for Toronto law firms. We like it at the top!
It has been quite a year for everyone and a difficult one for many. We at Davies Howe understand we are fortunate to have been able to keep working, and achieve these successes for our clients, during this terrible pandemic. We look forward to a better, healthier, huggier 2021 for everyone.
Bill 229 was introduced on November 5, 2020 pursuant to the Protect, Support and Recover from COVID-19 Act (Budget Measures), 2020. The Bill passed its second reading on November 23, 2020 and is now before the Standing Committee for consultation and debate. The Bill proposes to amend over 44 Acts including the Conservation Authorities Act (the “CAA”) and the Planning Act. The changes to the Planning Act are minor, however, the proposed changes to the CAA significantly impact the land use planning regime. In particular, the changes affect an applicant’s appeal rights for development permits and associated fees. The proposed changes also impose decision-making timelines on Conservation Authorities and limit the role of Conservation Authorities in the municipal planning process. Many environmental groups and the group of Ontario’s Big City Mayors are opposed to several of the proposed changes to the Conservation Authorities Act.
Appeal Development Permits Decisions to the Local Planning Appeal Tribunal (“LPAT”)
Currently, a developer must receive a permit from the Conservation Authority for development activities in areas that are prohibited under the CAA. The Conservation Authority may approve or refuse the permit with or without imposing conditions. If the applicant is unhappy with the Conservation Authority’s decision, there is a limited right to appeal to the Mining and Lands Tribunal.
If approved, Bill 229 will repeal this section and replace it entirely. The new section would allow the applicant to choose between having the Minister review the Conservation Authority’s decision or appealing the decision directly to the LPAT.
The applicant cannot use both routes unless the Minister does not conduct a review within 90 days after replying to the applicant’s request for review. Additionally, if the Conservation Authority does not make a decision within 120 days, the applicant may appeal directly to the LPAT. The LPAT has authority to take evidence, refuse the permit or order the authority to issue the permit with or without conditions. These proposed amendments also apply to a Conservation Authority’s decision to cancel a permit.
Reconsideration of Conservation Authority-Imposed Fee
A developer will now have the ability to appeal the administrative fee for a service provided by the Conservation Authority. An applicant who is charged a fee has always been able to apply to the Conservation Authority to reconsider the fee. Under the proposed amendments, if the Conservation Authority fails to make a decision in 30 days or if the applicant is unhappy with the decision to reconsider the fee, the applicant can pay under protest and appeal directly to the LPAT.
Conservation Authority can no longer participate in Planning Act Appeals
Planning Act amendments will expressly exclude Conservation Authorities from the definition of “public body”. This means that Conservation Authorities are no longer permitted to appeal a municipal council’s decision to the LPAT nor are they permitted to become a party to a Planning Act appeal.
Ministerial Ordered Permits
Bill 229 introduces a new section to the CAA that will allow the Minister to order a Conservation Authority to not issue a permit or a class of permits. The Minister may then issue the permit(s) themselves if certain criteria are satisfied. The Minister must give notice to certain parties after an order is made and post it on the Environmental Registry within 30 days of the decision being made. The Minister’s decision is final unless the Minister fails to make a decision on an application within 90 days, then the non-decision may be appealed to the LPAT.
Should you have any questions, the Davies Howe LLP team would be happy to discuss the Bill 229 amendments and how they affect your land development.
Toronto City Council has passed a resolution to move ahead with adding all major application types to the online application submission portal by the end of this year. The pilot project started with site plan control applications and is now working on zoning amendment applications. The City’s C2K team is hoping for a full public launch in early to mid-2021.
Davies Howe LLP looks forward to working with its clients to assist in the virtual filing of more complex and additional types of land use applications in this new virtual era.
New Regulation Released for Community Benefits Charges and Parkland Regulation under the Planning Act
On September 18, 2020, Ontario Regulation 509/20 came into force under the Planning Act to support the implementation of community benefits charges (CBCs) and parkland regulation (found here). This starts the two-year transition period for municipalities to implement the new framework.
CBCs are to be implemented under the “new” section 37 of the Planning Act and will give municipalities the ability to fund various community services not otherwise covered by development charges. This new Regulation provides additional details to section 37 of the Planning Act by outlining the requirements of a municipal community benefits strategy, development exclusions, maximum charge percentage, notice requirements for passing CBC By-laws, minimum interest rate rules, appraisal report timelines and municipal reporting requirements. This Regulation supports the Housing Supply Action Plan created through More Homes, More Choice Act, 2019 (Bill 108) as well as the COVID-19 Economic Recovery Act, 2020 (Bill 197).
Exclusions from Community Benefit Charges (s.1)
The Regulation expands on section 37(4)(e) of the Planning Act by expressly excluding long-term care homes, retirement homes, universities and colleges, memorial homes, clubhouses or athletic grounds of the Royal Canadian Legion, hospices and non-profit housing from CBCs.
Community Benefits Strategy (s.2)
Section 37(9) of the Planning Act requires the municipality to prepare a CBC strategy. Section 2 of this Regulation outlines the requirements of the strategy as including the following:
- estimates of the anticipated amount, type and location of development and redevelopment with respect to which CBCs will be imposed;
- estimates of the increase in the need for facilities, services and matters attributable to the anticipated development and redevelopment to which the CBC By-law would relate;
- identify the excess capacity that exists in relation to the facilities, services and matters referred to in clause (b);
- estimates of the extent to which an increase in a facility, service or matter referred to in clause (b) would benefit existing development;
- estimates of capital costs necessary to provide the facilities, services and matters referred to in clause (b); and
- identify capital grants, subsidies and other contributions made to the municipality or that the council of the municipality anticipates will be made in respect of the capital costs referred to in clause (e).
Maximum Charge (s.3) and Appraisals (s.6)
Section 3 of the Regulation establishes the prescribed maximum rate for a CBC under subsection 37(32) of the Planning Act as 4%, meaning that the CBC payable in any particular case cannot exceed 4% of the value of the land as of the valuation date.
The owner of land proposing to develop a site can provide the municipality with an appraisal of the value of the site if they are of the view that the CBC exceeds what is legislatively permitted. Similarly, a municipality can provide the owner of the land with an appraisal if it disputes the owner’s appraisal. If the appraised values are within 5% of each other, the municipality must refund to the owner the difference between the amount of the CBC and the higher of the appraised values. If the appraised values differ by more than 5%, a third appraisal is prepared. The Regulation establishes the following timeframes of these appraisals:
- If the owner disagrees with the charge, they pay the charge under protest and provide the municipality with an appraisal of the value of the land within 30 days;
- If the municipality disputes the owner’s appraisal report, they must provide the owner with their own appraisal within 45 days;
- If these appraisals differ by more than 5%, the owner can select an appraiser from the municipal list of appraisers who will then provide an appraisal within 60 days.
Municipality Reporting Requirements (s.7)
Municipalities are required to prepare and make available to the public annual reports that identify the balances of the CBC special account and the Parkland special account. The Regulation states that these reports must include details on the amounts spent, how capital costs not funded from the special account were funded, the amount borrowed from the account and the interest accrued on this amount.
Please contact us if you have any questions as to how this Regulation may apply to you and your development project.
On September 4, 2020, a staff report was released by the City of Toronto presenting draft inclusionary zoning Official Plan and Zoning By-law amendments for the purpose of public consultation.
Inclusionary zoning is a tool for municipalities to require new development or redevelopment to maintain a certain portion of residential units as affordable housing. As contemplated in Bill 108, the applicability of inclusionary zoning is limited to Protected Major Transit Station Areas (PMTSAs). These PMTSAs must be adopted by Council and approved by the Minister of Municipal Affairs and Housing.
Key components of the draft amendments include geographic application, the affordability period and the amount of units set aside. Geographically, inclusionary zoning will apply to areas defined as strong and moderate market areas within PMTSAs, as set out in this map.
The draft instruments require that 3-10% of the total residential gross floor area in a development be set aside as affordable housing for 99 years. The specific percentage is dependent on whether the development is in a strong or moderate market and the type of development. This range is currently being reviewed by City Planning to determine whether it can be increased. The City’s Planning and Housing Committee recommended increasing the range to 10-30% of the total residential gross floor area in a development. The matter will be considered by City Council on September 30, 2020 and final recommendations are targeted to be brought before the Committee in 2021. These requirements will be secured by agreements under subsection 35(2) of the Planning Act and will be registered on title.
Exemptions to Inclusionary Zoning
The Provincial Regulation 232/18 provides exemptions from inclusionary zoning, including where the proposed development contains fewer than 10 residential units. The draft Zoning By-law provides the following additional exemptions:
- Development or redevelopment within the Downtown Secondary Plan or Central Waterfront Secondary Plan containing:
- Less than 100 residential units; and
- Less than 8000 square metres of residential gross floor area
- Development or redevelopment outside the Downtown Secondary Plan or Central Waterfront Secondary Plan containing:
- Less than 140 residential units; and
- Less than 10,000 square metres of residential gross floor area
- Development or redevelopment owned and operated by certain “non-profit housing providers”; or
- Portions of development or redevelopment containing residential care homes or institutional student residences.
Notably, the proposed transition provisions in the draft Zoning By-law Amendment provide that it will not apply to a building or structure for which a complete application for a building permit, zoning by-law amendment, minor variance or site plan approval was filed prior to January 1, 2022. Minor variance applications are also excluded if based on a building permit application submitted before January 1, 2022.
Unprecedented yet Contemplated: Awarding Costs in Expropriation
Shergar Development Inc v Windsor (City), Ontario Court of Appeal, 2020
On August 4, 2020 the Ontario Court of Appeal upheld the Divisional Court’s decision that costs can be awarded to the expropriating statutory authority under section 32 of the Expropriations Act (the “Act”) for settlement offers that were unreasonably rejected. Generally, cost awards are based on the amount of the section 25 offer made by the expropriating authority and are at the Tribunal’s discretion. This decision expands the Tribunal’s ability to apply costs awards.
The Respondent, the City of Windsor (“Windsor”), expropriated the Appellant, Shergar Development Inc.’s (“Shergar”) lands along the Detroit River in Windsor creating two issues for the Ontario Court of Appeal:
- Whether the Divisional Court erred in finding that the reasonableness standard applies; and
- Whether the wording “the amount offered by the statutory authority” in section 32 of the Act refers to an offer made by Windsor that was not made under section 25 of the Act.
The Ontario Court of Appeal upheld the Divisional Court and the Ontario Municipal Board’s decision finding that Shergar’s interpretation is inconsistent with the text, scheme and public policy objectives of the Act. The Court found that the decision was reasonable, and section 32 of the Act does refer to a subsequent offer made by an expropriating authority as well as an offer made under section 25 of the Act.
The case has a history that has spanned 22 years. Shergar acquired the Subject Lands from the Canadian Pacific Railway Company (CPR) in 1995. Windsor expropriated the Lands for completion of a waterfront project in 1998. Shergar caused months of delay by not granting Windsor access to the Lands. Windsor offered compensation to Shergar and CPR jointly, in accordance with section 25(1) of the Act, for $500,000. Even after Shergar’s counsel advised that they would accept the offer, Shergar refused to cooperate causing further delay. This resulted in this section 25 offer being withdrawn.
Shergar then participated in Federal litigation against Windsor and after receiving unfavourable outcomes, commenced an expropriation arbitration in 2013. In 2015, Windsor made another offer to Shergar equivalent in value to $1,208,155 (“the 2015 Offer”), which Shergar did not accept. A proceeding was started under the Ontario Municipal Board to determine the amount of compensation. The Board determined that Shergar’s interest in compensation was only $266,832. However, the Board still awarded Shergar the costs of the proceeding causing Windsor to seek a rehearing on interest and costs. The Board then concluded that the most recent offer constituted the amount offered by the statutory authority and granted costs in favour of Windsor following the date of the 2015 Offer. Shergar appealed this decision to the Divisional Court. The Divisional Court found the Board’s interpretation reasonable. Shergar further appealed to the Ontario Court of Appeal.
The Court of Appeal awarded the Board’s decision significant deference. They dismissed the appeal finding that the Board interpreted the Act correctly. The Court (and the Board before it) focused on determining the legislative intent of section 32 of the Act by looking at the text, the scheme and the public policy objectives.
Text of the Act
First, the wording of section 32 refers to “the amount offered” by the statutory authority. It does not refer explicitly to section 25 as Shergar argued. This is contrasted with other sections of the Act that do refer explicitly to section 25. The Court concludes that if the legislature had intended this narrow application of section 32, they would have done so explicitly as is the case for sections 26 and 33(1).
Second, section 32 applies to both expropriation and injurious affection cases whereas section 25 only refers to “expropriating authority”, defined as a person empowered to expropriate land. This is contrasted with the wording “statutory authority” in section 32 which is defined as a person empowered by statute to expropriate land or cause injurious affection. Because section 32 refers to both expropriation and injurious affection and does not specify that they be treated differently, the Court states that it is illogical to interpret “the amount offered by a statutory authority” in section 32 as referring to section 25 offers only.
Scheme of the Act
Shergar’s interpretation is also inconsistent with the process contemplated by the Act. A section 25 offer must be made within 3 months of registration of a plan under section 9 of the Act and this is often too soon for an expropriating authority to fully understand the property’s market value. The expropriating authority should be afforded some measure of costs protection where it makes an increased, fair offer and the claimant refuses to accept it. The expropriating authority should also be able to be compensated for related damages when the claimant refuses to accept the offer and elects instead to proceed with unnecessary arbitration.
Public Policy Objectives of the Act
Lastly, Shergar uses Dell Holdings to make a public policy argument. The Court agrees that the Act is remedial and should be interpreted broadly and liberally, however, this is not the only policy objective of the Act. The remedial nature of the Act does not in itself rule out cost consequences for refusals of reasonable offers. Another objective of the Act is to encourage settlement of claims as early a stage as possible. These objectives are not incompatible.
The Court emphasizes that an innocent party whose property is taken must be fully compensated and the party will not generally have to bear costs for reasonably disagreeing with the amount offered for that taking, even where the offer exceeds the ultimate award by a considerable margin. However, at the very least, there must be a potential for adverse cost consequences where the claimant forces a wholly unnecessary proceeding or otherwise acts unreasonably.
The objective of full and fair compensation cannot be divorced from the objective of the efficient resolution of claims. Shergar’s interpretation would permit the prospect of an unreasonable claimant delaying proceedings, running up legal costs, and wasting the Board’s resources, safe in the knowledge that unreasonable refusals of subsequent offers cannot adversely affect its entitlement to legal costs.
While Shergar submits that awarding costs against a claimant in an expropriation proceeding is a new and undesirable precedent, it has always been contemplated that a claimant who unreasonably refuses an offer of settlement may be ordered to pay costs to a statutory authority (This is seen 44 years ago, in Rotenberg).
The Court of Appeal found that Shergar inexplicably refused an offer equivalent to $1,208,155 when their interest was limited to $266,832. Shergar also frustrated and delayed the determination of the issue of the appropriate compensation to be awarded to the subject lands. The Court ruled that this conduct is worthy of censure. Shergar’s actions resulted in significant delay and frustration, wasting the Board’s valuable time.
On July 21, 2020, and just prior to the legislature rising for its summer recess, the Provincial government passed the recently introduced COVID-19 Economic Recovery Act (“Bill 197”) which represents a step towards Ontario’s plan for growth, renewal and economic recovery made necessary due to the ongoing pandemic. Bill 197 is an omnibus bill which proposes to amend 20 statutes and was introduced by Premier Ford who described it as necessary to “rebuild the Province and get people back to work”.
Several of the statutes to be amended will be of particular interest to those in the municipal and land development sector and include the Building Code Act, the Planning Act, the Development Charges Act, the Municipal Act, the Ministry of Municipal Affairs and Housing Act, the City of Toronto Act and the Environmental Assessment Act.
A brief summary of some of the Bill 197 highlights is provided below.
Building Code Act
- Provisions of the Building Code Act are amended granting regulation making authority to the Minister of Municipal Affairs and Housing (the “Minister”) and no longer the Lieutenant Governor in Council;
- The Minister may make regulations by adopting documents by reference;
- The intent of these amendments is to streamline parts of the building codes to harmonize them intraprovincially and to enable the Province to respond faster to construction sector needs.
In 2019, the Province, through the passage of the More Homes, More Choice Act (“Bill 108”) and the Plan to Build Ontario Together Act, proposed significant amendments to the Planning Act as it related to community benefits and development charges (“DC”) and its parkland dedication regime. However, these changes were not brought into force. Bill 197 now rolls back many of Bill 108’s would-be changes, for example:
Community Benefits Charges (CBC’s)
- Sections 37 and 37.1 of the Planning Act are repealed and replaced, including the current section 37 agreement process;
- A CBC can not be imposed, amongst others, on development or redevelopment applications that have fewer than five storeys, fewer than 10 residential units, redevelopment that proposes to add fewer than 10 residential units to an existing building or structure, and other developments as are prescribed;
- A CBC can be imposed for public recreational purposes, provided that the capital costs for same are not also being charged pursuant to a development charge by-law under the Development Charges Act e. no double dipping;
- A local municipality can impose a CBC by-law and only one such by-law may be in effect in a municipality at a time;
- A CBC by-law must be subject to public consultation and is appealable to the Local Planning Appeal Tribunal (the “Tribunal”);
- The maximum CBC payable cannot exceed a yet-to-be prescribed percentage of the value of land as of the valuation date, which may be paid under protest;
- The current system by which municipalities obtain parkland (and not the system proposed by Bill 108) will be generally maintained particularly in relation to the alternative parkland rate that applies to higher density residential development;
- Public consultation is required prior to passing a by-law that sets an alternative parkland dedication rate which still cannot be set at a rate greater than one hectare for each 300 dwelling units proposed where land is to be conveyed or one hectare for each 500 dwelling units for payments in lieu;
- An alternative parkland dedication by-law can be appealed to the Tribunal. Limits have also been imposed on the Tribunal’s decision-making powers which make clear that the Tribunal cannot amend the by-law so as to increase the alternative parkland rate or payment in lieu required; and
- Existing parkland dedication by-laws will expire two years after these changes come into force.
- Bill 197 expands Ministerial power as it relates to “specified land”, which is generally defined as land other than land in the Greenbelt Area (which includes areas covered by the Oak Ridges Moraine Conservation Plan, areas covered by the Niagara Escarpment Plan and areas described in the regulations made under the Greenbelt Act, 2005);
- The Minister will have enhanced order-making powers to:
- Confirm that site plan control does not apply to all or part of the specified land;
- Address inclusionary zoning and require the provision of affordable housing;
- Require an owner of land to enter into agreements with a municipality related to, amongst other things, conditions required for the approval of a development project as well as the drawings and plans related to same.
Development Charges Act
Bill 197 expands the list of services for which a DC can be imposed from the list that had been furnished in Bill 108. The expanded list now includes, amongst others:
- By-law enforcement and court services;
- Services related to public health and emergency preparedness;
- Child care and early years programs; and
- Housing services.
Bill 197 rolls back some amendments first proposed by Bill 108 and does not permit the charging of a DC for the acquisition of lands for parks. Double dipping of charges for services as between the Development Charges Act and the Planning Act is not permitted.
The proposed amendments permit services to be included in classes, whereas they were previously grouped into categories. Existing DC by-laws that include certain services can remain in force for up to two years.
Ministry of Municipal Affairs and Housing Act
Bill 197 formally establishes a Provincial Land and Development Facilitator (the “Provincial Facilitator”). The functions of the Provincial Facilitator are to advise and make recommendations to the Minister in respect of land use and other matters, including, but not limited to, Provincial interests.
Municipal Act and the City of Toronto Act
Bill 197 amends the Municipal Act and the City of Toronto Act by repealing existing rules and enabling municipal Clerks and Councils to amend procedural by-laws as they relate to electronic participation. Bill 197 permits members of Council, committees and local boards to participate electronically in meetings which may be open or closed to the public and to be counted for the purpose of determining a quorum. This dispenses with the need to be physically present at a particular venue. In essence, Bill 197 makes the temporary measures implemented to respond to the COVID-19 emergency permanent.
Council members, in accordance with processes established by the municipal Clerk, will be able to appoint a proxy Councillor to act on their behalf during a meeting by voting, questioning or speaking. Specific rules apply with respect to the appointment of a proxy Council member.
Bill 197 also sets out rules relating to the fulfillment of temporary council vacancies under section 267 and 268 of the Municipal Act and prohibits Councillors who have declared a pecuniary interest from appointing a proxy with respect to the item(s) in question.
Many of the Bill 197 amendments referred to above came into force upon Royal Assent, which occurred on July 21, 2020. Certain amendments to the Development Charges Act and Planning Act will not come into force until a date to be identified by proclamation.
The team at Davies Howe would be delighted to answer any questions you may have pertaining to the Bill 197 amendments and how they may affect your current and future development projects.
On July 2nd, the Tribunal released a Video Hearing Guide that applies to all electronic hearing events. Though the Guide may be changed without notice, suggesting it is a work in progress, it sheds much needed light on how video hearings should be conducted.
While the guidelines contain a series of best practices and preparation tips for successfully using video conferencing technology, perhaps the most important thing to remember is that participants in a video hearing should treat the process with the same decorum and gravity they would an in-person hearing.
Video hearings may be independently directed from the LPAT, or requested by a Party or Parties in a proceeding. However, not every case is suitable for a video hearing, and Parties are able to object to a request for one.
Video hearings will be normally made accessible to the public, and individuals may obtain hearing details on request from the assigned Tribunal case coordinator.
Tribunal video hearings will be generally conducted using GoToMeeting. All participants in a video hearing should review the best practices contained in the Guide to prepare as best as possible for the conduct of an orderly hearing.
Due to the ongoing COVID-19 outbreak and associated Emergency Order, the Local Planning Appeal Board (“LPAT”) is continuing operations, though in a modified format.
The LPAT is not currently scheduling hearings of new appeals, though we understand it is working toward that objective. In contrast, the LPAT is scheduling video and hybrid hearings for certain ongoing matters.
Aside from the telephone conference calls, which have long been used by the LPAT to address procedural aspects of a case, the LPAT has now held some hearings via video conference. Video conferences are exclusively digital and take place through a video conference provider, such as GoToMeeting.
Hybrid hearings have both a physical and digital element. The Tribunal Member, witness giving evidence, witnesses’ counsel and cross-examining counsel are all in one room, up to a set maximum occupancy. Another room, or rooms, are used as overflow space for other counsel or witnesses expecting to give evidence that same day. All others, such as registered participants or members of the public, are able to attend via a livestream video conference.
Based on emergent practice, there are several factors the LPAT will consider in assessing the suitability of holding a virtual or hybrid hearing. For virtual hearings, the degree of public interest and number of participants is a key consideration. Additionally, the complexity of the issues and associated importance of in-person evidence, in assessing the credibility of a witness, is also a consideration for virtual hearings. Other typical factors include the convenience of the format, its probable efficiency, accessibility (e.g. to the internet) and the risk of prejudice arising from the hearing format. Similar factors apply to hybrid hearings, with the added need to have suitable hearing space available.
While we understand that the LPAT is looking at how in person hearings can be resumed, we do not anticipate the return of more regular in-person hearings until Ontario has moved further along in the reopening process and most likely not until sometime in 2021.
As for a return to “business as usual” at the LPAT, it’s too soon to tell whether the digital practices will be discarded altogether or whether we can look forward to a new, more digital, era.