An Owner’s Entitlement to Reimbursement of Legal Costs
The Expropriations Act R.S.O. 1990, c. E.26, as amended (the “Expropriations Act”) is designed to make an expropriated owner whole. Usually, expropriation matters are adjudicated by an administrative tribunal, which decides all issues, including costs, in accordance with the Expropriations Act. A recent decision by Ontario’s highest court confirmed that the costs rules set out in the Expropriations Act apply even when an expropriation matter is appealed to the civil courts.
In the case of The Corporation of the City of Owen Sound ats. Naidal Incorporated, the expropriated owner was awarded compensation at the administrative level. The expropriating authority unsuccessfully appealed portions of the administrative decision to the Divisional Court. While the owner incurred costs in the amount of $23,586.84 responding to the appeal, the Divisional Court only awarded the owner $7,500.00, on the basis that the ordinary civil court costs rules applied.
The owner then appealed the Divisional Court’s $7,500.00 costs award to the Court of Appeal. The Court of Appeal awarded the owner $23,586.84, the amount the owner incurred to respond to the appeal at the Divisional Court, as well as $11,622.50, the amount the owner incurred to pursue the appeal at the Court of Appeal. The Court of Appeal accepted that, in order to make an owner whole, it should apply the Expropriations Act when deciding the costs payable to the owner successfully resisting an appeal by the expropriating authority.
This decision is good news for owners who are expropriated as it exemplifies Ontario’s highest court tipping its hat to the remedial nature of the Expropriations Act – that is, to put an owner in the same position it would have been in but for the expropriation of its property.
In 2015, the Province amended the Courts of Justice Act (“CJA”) to target “strategic lawsuits against public participation”, known as “SLAPP” claims. Section 137.1 of the CJA permits a defendant to bring a motion to dismiss a proceeding if it can establish that the proceeding arises from an expression that relates to a matter of public interest. Such a proceeding will be dismissed unless the plaintiff can establish the merits of its claim, and the weakness of the defence, at a fairly high threshold. The anti-SLAPP provisions of the CJA are typically used in response to defamation claims.
Recently, in Bruyea v. Canada (Minister of Veteran Affairs), 2019 ONCA 599, the Ontario Court of Appeal addressed the question of whether the Small Claims Court has jurisdiction to dismiss a proceeding pursuant to the anti-SLAPP legislation. The plaintiff in that case was a Canadian Armed Forces veteran who wrote an article criticizing the pension benefit program for disabled veterans. In response, Seamus O’Regan, then the Minister of Veterans Affairs, published an article saying that the plaintiff was “stating mistruths” about the program. The plaintiff commenced a Small Claims action against the Minister for defamation.
The Minister brought a motion to dismiss the plaintiff’s lawsuit as a SLAPP claim. The deputy judge of the Small Claims Court dismissed the claim under section 137.1 of the CJA. In doing so, the deputy judge held that the Minister’s statements constituted expression related to a matter of public interest and that the plaintiff had not proven that its claim possessed substantial merit. The plaintiff appealed.
The Court of Appeal analyzed the language of the relevant provision, which uses the word “judge” and not “court” or “deputy judge”. The Court of Appeal viewed this as an express omission which signalled the legislature’s intention for such jurisdiction to be exercised by judges only. The Court therefore concluded that deputy judges of the Small Claims Court do not have authority to grant orders under section 137.1 of the CJA. The matter was returned to the Small Claims Court for a determination on the merits.
Given that deputy judges preside over virtually all proceedings in the Small Claims Court, the ability to bring an anti-SLAPP motion will generally be unavailable in that court. However, it remains open to defendants to seek to have a Superior Court Judge preside over an anti-SLAPP motion or to transfer an entire Small Claims Court proceeding to the Superior Court of Justice in order to rely on the anti-SLAPP provisions in the CJA. The courts will likely soon be asked to determine whether such a request should be granted.
By: Kyle Gossen and Andrew Valela
The City of Toronto is taking innovative steps to ameliorate its chronic shortage of low-rise, affordable and age-friendly housing options, by putting its 2,400 public laneways to good use.
Toronto’s extensive public laneways, which abut over 47,000 residential properties, present an opportunity to meet provincial land use planning objectives while increasing the City’s supply of ground oriented, affordable, rental housing.
The City defines a “Laneway Suite” as a secondary, self-contained, residential dwelling unit, typically located to the rear of a primary dwelling. Laneway Suites are now permitted on properties designated Neighbourhoods under the City’s Official Plan, zoned Residential under Zoning By-law 569-2013 and which abut a public laneway. Like basement apartments, another form of Secondary Suite common to Toronto, Laneway Suites rely on the same water, hydro, waste collection and sanitary services as the primary dwelling.
Laneway Suites are intended to be of modest height (no higher than two stories or six metres) and scale (maximum length of ten metres and maximum width of eight metres), to limit privacy and overlook onto existing adjacent properties and maintain the neighborhood’s character.
In June of 2018, after significant public consultation and a comprehensive, interdivisional analysis, City of Toronto Council adopted Official Plan Amendment 403 and passed Zoning By-law 810-2018 to permit Laneway Suites within the boundaries of the former municipalities of Toronto and East York. In July of 2019, these permissions were expanded across the City with the adoption of Official Plan Amendment 460 and the passing of Zoning By-law 1210-2019.
A complete set of Laneway Suites zoning standards can be found within Zoning By-laws 810-2018 and 1210-2019 which have been linked above. The City does, however, acknowledge that some property owners may need Minor Variances from the Zoning By-law to permit Laneway Suites. Minor Variance applications will be reviewed against the intent of the Official Plan and Zoning By-law as well as the desirability and overall nature of the variance to determine if it is minor. The City is also offering a twenty-year Development Charge Deferral Program as well as an Affordable Laneway Suites Program providing forgivable loans of up to $50,000 for eligible property owners developing laneway suites. Click here for more information regarding both the Development Charge Deferral Program and the Affordable Laneway Suites Program.
City Staff are currently developing updated Guidelines and a “How-to Guide” specific to Laneway Suites to assist property owners, developers and consultants navigating this new and exciting development process. In the interim, an overview of the City’s Review of Laneway Suites can be found here.
If you have any questions about Laneway Suites please contact one of our municipal, planning and land development lawyers.
Conditional Permit Guidelines & Toronto Building Update
The City of Toronto (“City”) Development Charge (“DC”) rates are scheduled to increase on November 1, 2019. The City’s DC rates are determined and payable upon the issuance of a building permit (“BP”); therefore, in order to lock in the current DC rates and avoid the increase a BP must be issued on or before October 31, 2019.
BP’s are only issued upon compliance with the Ontario Building Code, the City’s Zoning By-law and other “Applicable Law”, which includes the Environmental Protection Act, the Ontario Heritage Act, and the Planning Act, amongst others. In the event an applicant does not have all necessary approvals in place to obtain a BP, the Chief Building Official (the “CBO”) has the discretion to issue a conditional building permit (“CP”).
The CBO may issue a CP if the applicant can show that the outstanding approvals are in the process of being obtained and that non-issuance of a CP would cause unreasonable construction delays. Importantly, the City will not consider avoidance of DC increases as an appropriate reason causing an unreasonable construction delay in order to obtain a CP. There are three categories of CP’s:
- Below grade CP;
- Above grade CP; and
- Below and above grade CP
DC rates are determined and payable upon the issuance of BP, or an above grade CP. If an applicant does not have the necessary approvals to obtain a BP, discussions with City staff have confirmed that DC’s are in face payable upon the issuance of an above grade CP (or a below and above grade CP) if issued on or before October 31, 2019.
The issuance of CP will be subject to entering into a CP agreement that sets out, among other things, a six-month timeframe for obtaining all outstanding approvals, a 60-day timeframe in which construction must be commenced, and the assumption by the applicant of all risks with proceeding in advance of the issuance of a BP. If a below-grade CP is requested, the applicant will also be required to enter into a DC payment deferral agreement acknowledging that DC’s will be paid at the time of first above grade permit issuance.
In the past, CP’s have been used as a method to avoid increases in DC’s due to a lack of monitoring and enforcement of timelines by the City after the issuance of a CP. This is about to change.
Due to spikes in requests for CP’s prior to scheduled DC increases, the City will not be considering CP applications within 30 days of a scheduled DC increase. This means that a CP must be applied for by October 1, 2019 at the latest in order to obtain a CP prior to the scheduled DC increase. While the application cut-off date is 30 days, the City has the ultimate discretion on whether to attend to a CP application and issue a CP. If your intention is to receive a CP prior to the DC increase, we strongly suggest applying as early as possible as the City may not have the capacity to review given the large influx of applications submitted prior to DC increases.
The City is now putting much more rigour into how they process and enforce CP’s. For greater clarity, the requirements and monitoring guidelines for CP’s are not changing; rather, the City will be more strictly adhering to them. It is important to note that these are merely guideline documents and do not force the City to consider applications even if they were submitted prior to the 30 day deadline. What follows is a brief guide to obtaining and maintaining CP’s in the City. For a more detailed overview on CP applications, please refer to the City’s guidelines.
Conditional Permit Request
CP’s can be issued for below grade construction, above grade construction, and for both below and above grade construction. It is important to note that only CP’s issued for above grade construction or for below and above grade construction will trigger payment of applicable DC’s. The issuance of a below grade CP does not result in DC payment.
To obtain a CP for below grade construction, a written request must be submitted to the City, which must include:
- Sufficient information explaining and documenting the circumstances as to why an unreasonable delay in construction would occur if the CP is not issued;
- An up-to-date construction schedule for the entire project, supported by a letter from the applicants general contractor confirming the ability to carry out construction in accordance with the construction schedule; and
- Confirmation that the previous stage of construction and/or demolition must be substantially completed;
- Compliance with all zoning requirements and any interim control by-laws enacted under s. 34 and 38 of the Planning Act.
- Compliance with all “Applicable Law”
- CP’s have an abridged list “Applicable Law” that must be complied with prior to issuance
- Applicable law(s) from the Ontario Building Code which have not been satisfied;
- Steps which have been taken to resolve the outstanding Applicable Law and the time required to obtain these approvals;
- City Planning endorsement
- Toronto Water endorsement or long-term dewatering agreement in place
- Acknowledgement that the owner assumes all risks in a CP agreement
- Proof that all requirements have been met.
A CP request for above grade construction must also include, in addition to the foregoing requirements, a Notice of Approval Conditions (“NOAC”) issued by City Planning as well as verification from a Toronto Building Inspector that below grade construction is substantially completed.
A CP request for both below and above grade construction must include all the aforementioned requirements, but will only be considered when below grade construction does not exceed two storeys and will reach grade within a reasonable time. This timeline must be supported by a construction schedule and general contractor letter. The City has indicated that a “reasonable time” to reach grade is approximately 4-5 months.
The City requires approximately 30 days to process CP requests. CP requests will not be considered within 30 days of a scheduled increase in DC rates. This means that, in order to pay current DC rates and avoid the increase, complete CP applications must be submitted by October 1, 2019.
In the event a NOAC is imminently forthcoming from the City but has not been issued by October 1, 2019, the City has indicated that they will consider the request if they are spoken to beforehand and can confirm the imminence of a NOAC.
While the City has indicated that the cut-off date is 30 days prior to the DC increase, the City has the ultimate discretion and may not be able to process an application in time despite the fact that it was submitted prior to the deadline.
It is strongly encouraged that you reach out to the City’s Plan Review Staff immediately if you wish to receive a CP prior to November 1, 2019.
Conditional Permit Monitoring
CP’s will be subject to revocation where the terms of the CP agreement have not been met. The City has stated that inspectors will be sent out to monitor timelines and that CP’s will be revoked in the event of non-compliance. Typical terms include construction seriously commencing within 60 days of CP issuance, reaching grade within 4-5 months (if CP is for both below and above grade construction) and obtaining outstanding approvals within six months. The City has indicated that inspectors will arrive on the 60th day after CP issuance to ensure that construction has commenced.
If you wish to receive a CP on or before October 31, 2019 you must submit a complete application by October 1, 2019 at the latest, as the City might not have the capacity to review it given the spike in applications that will be forthcoming. If the City deems a last minute application incomplete for any reason, which they have wide discretion to do, the application may not be accepted. Only an above grade CP or an above and below grade CP will trigger payment of DC’s. It is strongly recommended that you reach out to the City’s Plan Review Staff as soon as possible.
Most amendments to the Planning Act and the Local Planning Appeal Tribunal Act, 2017 (“LPAT Act”) made under Bill 108 came into force on September 3rd, 2019. For a summary of changes made under Bill 108, please visit our 2019 Planning Reform page here.
The remaining amendments to the Planning Act, which include changes to community benefits under s. 37, Ontario Heritage Act, and Development Charges Act, 1997 have yet to come into force.
Reg 174/16, the transition regulation for the Planning Act, includes important new deadlines for the transition of appeal rights and the filing of appeals. The transition amending regulation 296/19 can be found here, while a consolidated redline version of O.Reg. 174/16 can be found here. A summary of the changes can be found here
The transition regulation for the LPAT Act includes infhttp://hereormation pertaining to the continuation of existing appeals under the revised hearing process under Bill 108. A summary of the transition regulation can be found here. The transition regulation 303/19 can be found here.
Davies Howe LLP is bidding a very fond farewell and extending its best wishes to its original founding Partner, Jeff Davies, who has recently announced his retirement from the firm, after 28 years.
Jeff will continue to work independently as an Arbitrator, Strategic Advisor and provider of facilitation services. Since 2015 and up until announcing his retirement, Jeff has worked with Davies Howe LLP as Counsel on select assignments providing strategic advice.
Everyone at Davies Howe wishes Jeff the utmost future success. We salute Jeff for his visionary leadership and contributions to our Firm and the land development community.
On July 25, 2019, Alex Lusty successfully represented the Thunder Woman Healing Lodge Society at a Committee of Adjustment Hearing in Scarborough. The Committee approved minor variances that will enable the development of Ontario’s first Healing Lodge for Indigenous women. The Healing Lodge will provide housing along with a variety of holistic and culturally-relevant programs to aid residents in their healing journey.
The Healing Lodge will contain 12 bedroom units for Indigenous women on bail, probation or parole and actively enrolled in programs. There are also 12 apartment units for women who have successfully completed their programs, but still want to work on refining their life skills, overcoming trauma, and regaining their cultural identity. A range of supportive uses are also provided by the Healing Lodge including, commercial space for entrepreneurial residents.
Davies Howe is proud to have been a part of Thunder Woman’s success and thanks Thunder Woman for sharing their exciting vision with us.
Province Opens Commenting on Proposed New Provincial Policy Statement
The Minister of Municipal Affairs and Housing, Steve Clark, announced that the Province is opening consultation on a new version of the Provincial Policy Statement. The announcement comes shortly after Bill 108, The More Homes, More Choice Act, received Royal Assent and before its Regulations have been filed.
- Encourage the development of an increased mix and supply of housing, for example, by extending the planning horizon from 20 to 25 years (s. 1.1.2) and permitting the adjustment of settlement area boundaries outside of a municipal comprehensive review where certain criteria contained in s. 126.96.36.199 are met;
- Protect the environment and public safety, which includes, promoting the on-site local reuse of excess soil (3.2.3) and continuing to direct development away from natural and human-made hazards;
- Reduce barriers and costs for development and provide greater predictability, by among other things, requiring municipalities to fast track priority applications that support housing and job-related growth (s. 4.7);
- Support rural, northern and Indigenous communities, for example by including language in the nature of clarification around private communal sewage and water services (188.8.131.52), and introducing new language recognizing the unique role that Indigenous communities have in land use planning (Part IV); and,
- Supporting the economy and job creation, for example by requiring planning authorities to identify strategic sites for investment and address potential barriers to investment (s. 1.3.1(c)) while introducing new language designed to strengthen the separation of sensitive and industrial uses (184.108.40.206).
For now, consultation appears to be limited to the submission of written comments. Written comments can be sent in: via e-mail, through the Environmental Registry or by regular mail. Comments are being received until October 21, 2019.
Davies Howe has prepared this Unofficial Comparison of the changes between the PPS, 2014 and the proposed New Provincial Policy Statement to be used for educational purposes only. The Unofficial Comparison should not be relied upon for legal purposes.
Today, Bill 108, More Homes, More Choice Act, 2019 passed third Reading and received Royal Assent. Parts of the Bill are now in force while others await proclamation. The final Bill can be accessed here: https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-108.
For specific advise on how Bill 108 applies to you, please contact one of our Land Development Lawyers.