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.
To date, the Toronto Local Appeal Body (“TLAB”) has postponed all hearings and suspended all filing deadlines between March 16, 2020, through to and including August 14, 2020. As a result, the TLAB will reschedule those hearings that were postponed. It is expected that the rescheduled hearings will follow the typical timelines provided for in the TLAB’s Rules of Practice and Procedure.
As a general rule, the TLAB has suspended, and will not schedule any hearing events, including electronic hearings. The exceptions are settlement hearings, single party variance only appeals, and electronic hearings where the parties agree and the presiding Panel Member overseeing the matter consents.
When requesting an electronic hearing, Parties and Participants will be asked to complete a survey that assesses the technological capacity of attendees. Where attendees have the technological means to engage in an electronic hearing, in our experience, the electronic hearing will likely be scheduled.
Upon resumption of regular service, those with postponed hearings will be issued a new Notice of Hearing setting out the procedural steps that must be completed before the Hearing date.
It should be noted that the TLAB may make exceptions where compelling circumstances warrant; however, we anticipate such circumstances to be very rare.
On June 15, 2020, the Province amended O.Reg. 149/20, which provides for the suspension of various Planning Act timelines for the duration of the Declaration of Emergency, via amending O.Reg. 278/20. This amendment will come into force on June 22, 2020, and serves to terminate the suspension of timelines in O.Reg. 149/20 effective on that date. Any timelines that did not end prior to March 17 are only suspended until June 22, 2020; in other words, the clock stopped running on March 17, 2020 and will resume on June 22, 2020, resulting in a ‘pause’ of 97 days.
Decision notices for most Planning Act instruments, including Official Plans and Official Plan Amendments, Zoning By-laws and Zoning By-law Amendments, Plans of Subdivision, Consents, and Community Planning Permits, given on or after February 26, 2020 and before April 15, 2020 are deemed not to have been completed. Any such decision notices and decision notices not yet sent out for decisions made on or after March 2, 2020 and before April 15, 2020 must be given no later than 15 days after June 22, 2020.
Decision notices with respect to Minor Variance applications that were made on or after February 26, 2020 and before April 15, 2020 must be given no later than ten days after June 22, 2020 irrespective of whether notice has already been effected. The 20-day appeal period in s. 45(12) of the Planning Act is expanded to be 20 days after receiving (or re-receiving) the notice.
Interim Control By-laws (“ICBLs”)
The expiry date of ICBL’s that were in effect on March 17, 2020 and had not been repealed prior to April 15, 2020 has been extended by the number of days between March 17, 2020 and June 22, 2020, or 97 days. Similarly, if an ICBL was in effect on March 17, 2020 and does not expire before June 22, 2020, the by-law is deemed to remain in effect after the day it would otherwise expire for a period of 97 days.
On June 17, 2020, The Province announced the creation of a new cluster of tribunals – the “Ontario Land Tribunals”, effective July 1, 2020.
Marie Hubbard has been appointed Executive Chair of the “Ontario Land Tribunals”, which includes the following adjudicative tribunals:
- Board of Negotiation
- Conservation Review Board
- Environmental Review Tribunal
- Local Planning Appeal Tribunal
- Mining and Lands Tribunal
This change essentially restores the prior cluster of tribunals known as the “Environment and Land Tribunals Ontario (“ELTO”) with the exception of the Assessment Review Board. The team at Davies Howe will continue to monitor legislative and regulatory changes as they relate to land use planning and development.
Province Proposes Changes to A Place to Grow: Growth Plan for the Greater Golden Horseshoe (the “Growth Plan”)
On June 16, 2020, the Province posted two proposals on the Environmental Registry of Ontario (the “ERO”) related to its proposed changes to the Growth Plan. The proposal for the proposed amendments to the Growth Plan is found here and the proposal for the proposed Land Needs Assessment Methodology (the “Methodology”) is found here.
The proposed changes, which are currently open for public comment until July 31, 2020, include updates and policy changes to the population and employment forecasts, a change to the Growth Plan horizon year, adjustments to the aggregates policy framework, new policies to address Major Transit Station Areas (“MTSAs”) within Provincially Significant Employment Zones (“PSEZs”), and other policy revisions to support an increase in housing supply, create more jobs, attract business investment, and better align infrastructure.
A link to the proposed amendments and background materials can be found here.
Proposed Amendments to the Growth Plan
The proposed amendments extend population and employment forecasts to 2051, from 2041 currently, to ensure municipalities have sufficient land to support the creation of complete communities. The amendments specify that that municipalities must use the forecasts in the Growth Plan, found in Schedule 3, or higher forecasts determined through a Municipal Comprehensive Review (“MCR”) process with a conformity deadline of July 2022.
Further, the proposed amendments address Provincial objectives related to intensification surrounding MTSAs and would allow conversions of employment areas to non-employment areas within a PSEZ outside of an MCR that is located within an MTSA in order to allow for mixed-use developments to be approved more quickly. The amendments also outline the next steps to be taken in evolving PSEZ policies and how these areas can be used to support the post-COVID economic recovery, attract investment, and support the retention and expansion of manufacturing activity.
With regard to transition, it is contemplated that any Local Planning Appeal Tribunal matter where a hearing has been completed but a decision has yet to be issued would remain subject to the Growth Plan as it read prior these amendments but that all other matters would be required to conform to the Growth Plan as proposed to be amended.
Proposed Land Needs Assessment Methodology
Every municipality in the Greater Golden Horseshoe, as part of an MCR, must utilize the Methodology to assess the quantity of land required to accommodate forecasted growth. The proposed Methodology offers a simplified approach that will be forward looking and account for demographics, employment trends, market demand, and housing affordability. The Methodology emphasizes that municipalities must have enough land with servicing capacity to provide at least a three-year supply of residential units, and that they must plan to maintain the ability to accommodate residential growth for at least 15 years, consistent with the 2020 Provincial Policy Statement.
The Methodology contains a Community Land Area Land Needs Assessment used for housing, population-related jobs and office jobs and an Employment Area Land Need Assessment for all various types of employment.
When planning for community areas, municipalities must:
- Use the population and employment forecasts contained in Schedule 3 for planning and managing growth, as a minimum;
- Direct development to settlement areas, except where the policies permit otherwise;
- Plan to achieve minimum intensification and designated greenfield area density targets;
- Support the achievement of complete communities that offer and support opportunities for people of all ages and abilities to conveniently access most of the necessities for daily living, including an appropriate mix of jobs, local stores, and services, a full range of housing, transportation options and public service facilities;
- Consider the range and mix of housing options and densities of the existing housing stock and plan to diversify housing options in the future, including additional residential units and affordable housing, to serve all sizes, incomes and ages of households; and
- Plan for a more compact built form that reduces the rate at which land is consumed and supports the integration and sustained viability of transit services.
When planning for employment, municipalities must:
- Within settlement areas, make more efficient use of existing employment areas, vacant and underutilized employment lands, and increase employment densities;
- Direct major office and appropriate institutional development to urban growth centres, major transit station areas and other strategic growth areas with existing or planned frequent transit service;
- Direct retail and office uses to locations that support active transportation and have existing or planned transit;
- Prohibit or establish a size and scale threshold to prohibit any major retail exceeding this threshold in employment areas; and
- Provide for economic activity on rural lands that is appropriate in scale and type to the rural context.
The team at Davies Howe would be delighted to answer any questions you may have pertaining to the proposed amendments to the Growth Plan and how it may affect your current and future development projects.
The Minister of Municipal Affairs and Housing (the “Minister”) has announced that he intends to end the temporary suspension of Planning Act timelines implemented through O.Reg. 149/20 on June 22, 2020. Please click here for a copy of the communication from the Minister.
We will provide an update when the Minister issues more details on how the suspension will be lifted and how timelines will resume.
The Divisional Court, in a February 25, 2020 decision stemming from an appeal of a decision of the Local Planning Appeal Tribunal (the “LPAT”), largely upheld the LPAT’s decision to award disturbance damages for lost real estate commissions and costs associated with a loan in an expropriation matter.
The circumstances of the case are that the City of Toronto expropriated a number of adjacent properties owned by the appellants in 2014, the valuation of which was appealed to the LPAT. The appellants had previously submitted a development application seeking a 14 storey residential building that had not yet been approved. The City had initially offered the appellants $9,000,000, which was further revised to $14,000,000 before the hearing and $17,000,000 at the hearing, although only $9,000,000 was paid to the appellants prior to the expropriation proceedings.
The LPAT, in addition to valuing the property at $18,000,000 – double the amount the City initially offered – awarded damages to the landowner incurred as a result of delay by the City in the form of interest on the $9,000,000 that remained outstanding as the proceedings occurred. The LPAT’s decision was largely upheld in a positive development for those seeking damage awards in expropriation matters.
In summation, the Divisional Court found that:
- There was no error in the LPAT’s valuation of the property at $18,000,000;
- The LPAT determined this value based upon the “direct comparison approach”, which utilizes comparable property sales in the vicinity of the expropriated lands to arrive at a valuation, as opposed to the more rarely used “residual approach”, which values the proposed development as if it were complete and subtracting the costs of construction.
- The LPAT rejected the appellants argument that the residual approach should be used, stating that it was only appropriate where development was imminent, which was not the case as there were further steps in the planning process that had to be taken before being “shovel ready”.
- There was no error in the LPAT’s finding that the City of Toronto caused delay in expropriating the property and should pay 12% interest on the outstanding expropriation amount;
- The main factor in this aspect of the decision was that the City had only paid $9,000,000 to the appellants despite revising their valuation to $14,000,000 prior to the hearing and $17,000,000 during the hearing.
- The LPAT determined that the start date for interest accrual would be the date on which the City paid the $9,000,000 to the appellants.
- There was no error in the LPAT’s decision to award disturbance damages for the Appellant’s lost commissions but to not award disturbance damages for the Appellant’s lost business opportunities;
- The LPAT awarded $2,100,000 in lost real estate commissions to the appellants, which they would have received for pre-construction sales if the properties had not been expropriated, because this loss was directly tied to the expropriation.
- There was no error in the LPAT’s decision not to award disturbance damages for the cost of purchasing alternative properties
- The appellants argued that they should receive disturbance damages for the cost of buying a replacement property, which they claimed would include the land transfer tax and legal fees associated with the purchase.
- The Divisional Court agreed that this claim should be dismissed because the appellants had not yet purchased or made arrangements to purchase an alternative property.
This decision furthers the ability for landowners to receive damage awards in expropriation cases and largely exalted the LPAT’s decision-making in a high stakes expropriation case.
Our team at Davies Howe is at the forefront of expropriation matters in Ontario and would be happy to assist you in receiving fair treatment during an expropriation proceeding.
If you have any expropriation related questions, please contact Ava Kanner (416) 263-4503.
Province Amends O.Reg. 73/20 Regarding Suspension of Limitation Periods and Time Periods in Proceedings
On June 5, 2020, the Province amended O.Reg. 73/20, passed under section 7.1 of the Emergency Management and Civil Protection Act (the “EMCPA”), which provides for the suspension of limitation and time periods in proceedings.
The amendments, made via O.Reg. 258/20 and O.Reg. 259/20 , separate the duration of the suspension from the length of the Declaration of Emergency, allowing for the duration of O.Reg. 73/20 to apply outside of the current Declaration of Emergency. Further, the amendments extend the suspension of time periods and limitation periods until September 11, 2020, which is the maximum renewal period allowed under the EMCPA.
The changes also clarify who may exercise the discretion to vary time or limitation periods available to Courts and Tribunals to include:
- The person or persons who have jurisdiction to make orders in the proceeding;
- The Chief Justice of Ontario, in respect of any or all of the proceedings before the Court of Appeal for Ontario;
- The Chief Justice of the Superior Court of justice, in respect of any or all of the proceedings before the Superior Court of justice;
- The Chief Justice of the Ontario Court of justice, in respect of any or all of the proceedings before the Ontario Court of Justice; or
- The chair of a tribunal, in respect of any or all of the proceedings before the tribunal.
On May 14, 2020, the Province announced that it would be removing the essential workplace limits on construction effective May 19, 2020. As a result, all residential and non-residential construction can resume and new renovations can start, with the caveat that all sites should meet or exceed the Ministry of Labour’s Guidelines for Construction Site Health and Safety during COVID-19.
The team at Davies Howe would be happy to discuss how the evolving COVID-19 landscape affects your business and construction activities.