On August 15th, 2017, in association with Urban Land Institute Toronto, Davies Howe LLP hosted a roundtable presentation and discussion on the new Growth Plan for the Greater Golden Horseshoe. The new Growth Plan was released on May 18th and came into force July 1st, 2017 as part of the Province of Ontario’s Coordinated Land Use Planning Review.
Davies Howe LLP was pleased to host this event in our new office, which showcased the capacity and functionality of our new multi-purpose boardroom.
The firm proudly looks forward to hosting more events in our new office.
As Canada moves forward with Aboriginal reconciliation, the issue of the Duty to Consult Aboriginal peoples will arise more frequently in land development. The Duty to Consult exists whenever the Crown, meaning the Federal or Provincial governments knows, or should have known, of the existence of the Aboriginal and treaty rights. As sign of things to come, the Province has recently included language in the Growth Plan recognizing that Aboriginal communities may have Aboriginal rights within the Plan area.
The law surrounding the Duty to Consult is just beginning to develop. Along with the development of the law comes implications for land development. A recent case, Saugeen First Nation v Ontario, serves as a reminder of the following important implications of the Duty to Consult:
· As a matter of Constitutional importance, the Crown needs to assess the level of consultation required when the issue of Aboriginal and treaty rights arises.
· The Duty to Consult, if it is not discharged, can halt progress on a project, despite other approvals being obtained. In Saugeen the project was a quarry that had gone through a ten year approval process, and had been approved. Notwithstanding the approval, the licence was set aside due to a failure to discharge the Duty to Consult.
· Consideration should be given to joining any approval process and the Duty to Consult to reduce the risk of project delay and minimize duplication.
· The Duty to Consult does not rest on the proponent of a project. Even though some part of the process of consultation may be delegated to a proponent, the Duty to Consult always remains a responsibility of the Crown.
· The Duty to Consult may require the Provincial or Federal governments to fund the expertise required to allow for meaningful engagement of Aboriginal interests. In Saugeen, the Province was required to pay $10,914 to allow Saugeen First Nation and Chippewas of Nawash Unceded First Nation to engage experts to assist in their review of the project.
Though Saugeen deals with a quarry, the principles will apply to any development where there are known or suspected Aboriginal Rights. Though it is impossible to anticipate where the Duty will arise without specific information, projects where the duty to consult might arise include:
· boundary expansions,
· hamlet developments,
· water oriented development,
· economic development projects like highway transportation depots,
· infrastructure projects, such as, highways and airports, and,
· resource development projects.
The City of Toronto has begun regulating the management, operation and maintenance of apartment buildings in Toronto. This includes new maintenance and communication obligations imposed upon owners and operators/managers of rental buildings, as well as penalties for their contravention.
The City’s new obligations and standards, found in Chapter 354 of the City of Toronto Municipal Code (the “Apartment Standards By-law”) came into effect on July 1, 2017.
The requirements apply to all owners and operators of purpose-built rental buildings that are:
- 3 or more storeys in height; and
- Contain 10 or more rental units;
Every person convicted of a violation under the new Apartment Standards By-law, is guilty of an offence and can be fined up to $100,000 and up to $10,000 for each day the offence continues. The City can also apply special fines to every person who obtains an economic advantage by contravening these new obligations.
As the fines for contravening the new Apartment Standards By-law are significant, owners and operators should educate themselves on the new obligations, which include:
- Yearly registration and payment of associated registration and inspection fees;
- Instituting a tracking system to document tenant requests and owner/operator responses;
- Creation of a tenant notification bulletin board to notify tenants of upcoming service disruptions, certain City-issued orders, City scheduled audits, pest treatment activities and other items;
- Adherence to a pest management inspection schedule and daily common area cleaning inspections;
- Preparation of a waste management plan, cleaning plan, and a “state of good repair capital plan”; and,
- Requirements for the owner/operator to maintain records demonstrating compliance.
The deadline for registration and payment of registration and inspection fees has been extended for this year only to September 30, 2017. Going forward, applicable purpose-built rental buildings must be registered between July 1 – 31 of each year.
The Apartment Standards By-law also authorizes City staff to conduct routine site visits and pre-audits of all apartment buildings to determine whether the apartment building complies.
The City can also prohibit renting a unit to a new tenant if that unit is, or has been, subject to a Property Standards order. The City will also be empowered to prohibit renting a unit to a new tenant if pests are presently an issue in the unit.
For additional information about the new Apartment Standards By-law and how it may impact your interest in a rental building, do not hesitate to contact Davies Howe LLP.
On May 18, 2017, the Province released new versions of its four provincial plans:
• Growth Plan for the Greater Golden Horseshoe (2017)
• Greenbelt Plan (2017)
• Oak Ridges Moraine Conservation Plan (2017)
• Niagara Escarpment Plan (2017)
The new plans are the result of the Province’s Co-ordinated Land Use Planning Review, which commenced in February, 2015. The new Niagara Escarpment Plan will come into effect on June 1, 2017, while the other three come into effect on July 1, 2017.
Common themes across the four new Plans include: greater emphasis on creating complete communities; strengthening protection and support for agricultural land and uses and natural heritage systems; requiring consideration of climate change in land use planning; and greater emphasis on conservation of cultural heritage resources.
The most significant changes are found in the new Growth Plan. While many of the guiding principles of the previous Growth Plan continue in this new Plan, significant changes have been introduced to the minimum intensification and density targets and planning for growth within Settlement Areas.
Despite concerns voiced by many of the Greater Golden Horseshoe (“GGH”) municipalities during the Co-ordinated Review, the increased intensification and density targets proposed in the draft version of the Plan released in May, 2016 have remained in this final version. However, phasing in of the targets has been added along with allowances for alternative targets and changes to the calculation of the density targets. Upper-tier municipalities will now be required to plan for a minimum of 60% of residential development to occur as intensification within their existing built-up areas by the year 2031 and onward (up from 40%), while densities in their vacant but designated areas are required to be planned for a minimum of 80 people and jobs combined per hectare across the upper-tier municipalities (increased from 50).
Other notable changes in the new Growth Plan include the establishment of hierarchies of Settlement Areas within upper-tier municipalities, as well as hierarchies of lands within Settlement Areas where growth is to be directed. Prohibitions on the development of “excess lands” which are within Settlement Areas but determined not to be needed to meet the growth and employment targets have been added for municipalities in the outer ring of the GGH.
The majority of the changes in the new Greenbelt Plan and Oak Ridges Moraine Conservation Plan focus on increasing permissions and protection for agricultural uses in these Plan areas. Policies for lot creation and expansion of settlement areas have also been tightened in these new Plans.
A new designation has been added to the Greenbelt Plan to recognize the Urban River Valley, which includes lands within the main corridors of river valleys connecting the rest of the Greenbelt to the Great Lakes and inland lakes. Associated policies have been included which apply only to publicly owned lands within the Urban River Valley designation.
On May 16, 2017, the Province announced significant proposed changes to the current land use planning appeal process.
Davies Howe has learned that the new system is anticipated to be in place sometime in 2018. Further, the Province indicated an intention to consult with stakeholders to define an appropriate transition period.
At this time, details are limited to what is set out in a news release entitled Giving Communities a Stronger Voice in Development and a backgrounder statement entitled Ontario’s Proposed Changes to the Land Use Planning Appeal System. More details will be known once the proposed legislation is made public. What we know at this time is that the Province is looking to:
- Replace the Ontario Municipal Board with a new body called the Local Planning Appeal Tribunal (“LPAT”), which will include changes to the practices and procedures of the appeal system
- Amend the Planning Act to eliminate ‘de novo’ hearings (i.e. “starting from the beginning”) and replacing it with an appeal system oriented toward reviewing the correctness of municipal council decisions
- Create a new statutory regime regarding hearing practices and procedures setting strict hearing timelines, requirements for written evidence and materials, and encouragement of alternative adjudication methods
- Require mandatory case management meetings between parties to settle issues, encourage settlement, and reach potential mediation;
- Exempt provincial approvals of Official Plans, approvals of conformity exercises, and minister’s zoning orders from appeal
- Expand Local Appeal Body (“LAB”) jurisdiction to include appeals of site plans in addition to their current scope of minor variances and consents;
- Enact a two-year moratorium on appeals for new secondary plans and a one-year moratorium for new interim control by-laws
- Establish a Local Planning Appeal Support Centre, an agency mandated to provide information and support to the public during land use planning appeal matters
Under the proposed new framework, municipal decisions can only be appealed to the LPAT if the decision was not consistent with Provincial or local municipal policies or plans. Successful appeals will then be referred back to municipal council for reconsideration, during which they have a 90-day period to issue a subsequent decision. The Tribunal will retain the jurisdiction to replace Council’s decision if, after second consideration, Council makes a subsequent non-conforming decision or does not render a decision within the allotted time period.
After extensive public and private consultation, on March 29th, 2017, Toronto City Council established the Toronto Local Appeal Body (“TLAB”) pursuant to Chapter 142 of the Toronto Municipal Code, the City of Toronto Act, and additional provincial legislation. As of May 3rd, 2017, all appeals of Committee of Adjustment Decisions under Section 45 and 53 of the Planning Act will be sent to the TLAB and not the Ontario Municipal Board (“OMB”), unless:
- An appeal was filed with the OMB prior to May 3, 2017, in which case all subsequent appeals will be made to the OMB; or,
- There is already a related appeal before the OMB for the same matter (including Official Plan Amendments, Zoning By-law Amendments, Site Plan Approval etc.)
The TLAB is comprised of seven Members on four-year terms that were recommended for appointment by a citizen-member nominating panel. Each hearing will be presided over by a minimum of one of the TLAB Members. You can review the biographies of the Chair and Members here.
The TLAB has released its own Rules and Practice and Procedure and administrative forms, separate and distinct from the OMB, which outline new procedural requirements and deadlines. Once the TLAB issues a Notice of Hearing, several key dates are triggered. Most notably, applicants only have 15 days from the date the TLAB issues a notice of hearing to submit any revisions to the original application. Parties must also disclose all documents to be relied upon at the Hearing within 30 days of the issuance of the Notice of Hearing. The TLAB also requires Witness Statements to be exchanged, which is a marked change from the present process before the OMB for minor variance and consent appeal hearings.
The TLAB is similar to the OMB in that it too is an independent quasi-judicial appeal body and all proceedings are conducted in accordance with the Statutory Power Procedures Act. Decisions of the TLAB are final after the issuance of a formal order, but as is the case with the OMB there is a process and certain criteria under which requests for reviews of TLAB decisions are considered. Reviews will be granted when it is determined that the TLAB either:
- Acted outside its jurisdiction;
- Violated natural justice for example, by not giving notice of the hearing;
- Made a material error of fact or law which would likely have resulted in a different order or decision;
- Heard false or misleading evidence that could have changed the decision; or,
- Should consider new evidence which was not available at the time of the hearing which evidence could change the decision.
A decision of the TLAB may also be subject to an Application for Judicial Review to the Divisional Court for any of the same the reasons set out above. A decision of the TLAB may also be subject to an Application to the Divisional Court, with leave, if it is determined that an error on a question of law was made during the proceedings.
For additional information about the TLAB and the process for hearings under the TLAB Rules of Practice and Procedure do not hesitate to contact any one of the land use lawyers at Davies Howe Partners LLP.
We are proud to announce that Novae Res Urbis has once again recognized Davies Howe Partners LLP as a Top Development Law Firm with a second place finish in the GTA and a third place finish in Toronto. DHP is consistently ranked amongst the top three law firms practicing in the area of Land Use Planning and Development Law and is currently the highest ranked boutique law firm in both the GTA and in Toronto.
Excerpt: “Davies Howe Partners moves up this year to the penultimate position in the rankings, reflecting a hefty caseload and its successful involvement in the resolution of a number of significant appeals.”
Firm Partner John Alati was invited to speak on #urbanizeTHIS, hosted by Matthew Slutsky and Ara Mamourian, to discuss the value and merits of the Ontario Municipal Board in planning and development law, and why beneficial reforms from the Province’s internal review of the Ontario Municipal Board could result in greater transparency and more constructive decision-making.
You can hear the podcast below:
The Ontario Divisional Court recently weighed in on the authority of the Ontario Municipal Board to set parkland dedication rates. Nordheimer, J. was critical of a January 15, 2015 Board decision that approved a 25% overall cap on parkland dedication for residential projects. This limit is neither the 5% permitted by subsection 42(1) of the Planning Act, nor the alternative rate of one hectare per 300 dwelling units set out in subsection 42(3). Nordheimer, J. considered the negative effect of a higher parkland dedication rate on high-density residential development, however, he commented that, “no matter how legitimate that concern may be, it does not operate to alter the plain wording of the statute, nor does it serve to provide authority to the OMB to impose conditions where that authority cannot otherwise be found in the plain wording of the statute.”
Nordheimer, J. rejected the characterization of the 25% cap (or any cap) as a matter of policy. The cap is not a general guideline that provides a broad overview of how a municipality can make parkland dedication decisions. Rather, the “imposition of a fixed rate that unnecessarily fetters the discretion of the municipality to make its own decision on the appropriate rate that should apply for the implementation of the alternative requirement within its boundaries.”
The Court remitted the decision back to the Board for determination. Nordheimer, J. expressed the crux of the case in commenting that the Board decision, “…effectively abrogates the role that the Legislature clearly intended municipalities would perform and instead bestows that role onto itself. And in doing so, the OMB finds authority to establish a maximum rate for the alternative requirement that is different from the maximum provided by the Legislature in the statute.”
The respondents have sought leave to appeal the Court’s decision, the outcome of which is anticipated before the end of the year, and will be closely watched by municipalities and the development community.
The decision can be accessed for free here.
In personal injury cases there is usually a need to rely on evidence from a doctor or other health practitioner to determine the extent of injuries. However, for any number of reasons the injured party might not be eager to undergo a medical examination. Where a medical examination (which can be physical or mental) has been refused, there are steps that lawyers can take to get a court order requiring a medical examination be completed by the injured party. The penalty for non-compliance is serious, and if the injured person is a plaintiff, can include the dismissal of their case.
Daggitt v Campbell, decided in April, 2016 by the Ontario Superior Court addresses court ordered medical exams. The case deals with an unfortunately common situation. The plaintiff was injured in a car accident, and their injuries lead to a decline in mental health. Before the hearing the plaintiff had already agreed to several medical exams, and completed a treatment program for both chronic pain and mental health. After treatment the plaintiff was examined by a physiatrist and an orthopaedic surgeon and no further treatment was recommended. The defendant wanted another medical exam, this time to be performed by a psychiatrist. The court did not grant the defendant’s request.
The decision is highlights some of the issues faced in the courtroom when asking for a court ordered medical exam. In order for a judge to require a medical examination they will want to be sure that it is legitimately necessary and that without it the trial process will be unfair. In determining whether to require a medical examination, a judge will assess a complex set of factors. Some of these factors are: the risk of delaying the trial, giving both sides an opportunity to present evidence on an issue, and expense. Where there were prior medical examinations, the judge will also want to hear from a health practitioner about why a subsequent examination is necessary. If a lawyer does not convincingly address those factors, then, a judge will be resistant to finding in their favour. In this case, the defendant simply did not provide enough evidence about why the further medical exam was necessary.
The decision also serves as a reminder that it is important to pick the right expert. Not all experts will bring the same credibility to the courtroom. Some develop a reputation for favouring their own client, instead of being fair, objective and nonpartisan. This type of biased expert is sometimes referred to as a “hired gun”. If the judge perceives that a party wants to use a “hired gun” to do a medical exam, they may not allow the medical examination to be conducted by that expert.