News & Posts

On March 24, 2020, the Local Planning Appeal Tribunal (LPAT) advised that it was cancelling all hearing events scheduled before July 1, 2020 and would not be scheduling any new hearing events, including in-person, written or teleconference hearings, while the Government of Ontario’s Order in Emergency (O.Reg. 73/20) is in effect.

On April 2, 2020, the LPAT announced that it would consider, on a case by case basis, the exercise of its discretion to schedule a hearing event by teleconference or written submission to allow a settlement of the proceeding to be presented to the Tribunal, and is prepared to conduct settlement hearings beginning the week of April 6, 2020.

For parties seeking to present a settlement to the Tribunal, the LPAT has prepared a Settlement Request Form that is to be completed and filed with the Tribunal, together with supporting documents.  However, the LPAT has indicated that it is unlikely that a settlement hearing will be scheduled before a first hearing event, to ensure proper notice to all potential interested stakeholders.

The LPAT has also advised that it will consider lifting the suspension of the Order to enable the Tribunal to conduct other hearing events in writing or by teleconference “in the near future”.

Davies Howe LLP will continue to monitor changes to LPAT’s hearing process and procedures during this time and will provide further updates as circumstances change.

In response to the COVID-19 pandemic, the Provincial Government has made an Order suspending limitation periods and procedural timelines in Ontario. A copy of the Order can be found here.

The suspension is retroactive to March 16, 2020. This means that all limitation periods and procedural timelines – including those applicable to Courts and the Local Planning Appeal Tribunal – were “frozen” on that date. For example, deadlines to commence, serve, and defend claims have stopped running. The suspension will last until Ontario declares an end to the emergency.

Please contact Ava Kanner (ava@davieshowe.com) or John Alati (johna@davieshowe.com)  if you have any questions.

LPAT has issued this letter on March 24 providing its interpretation of Provincial Regulation 73/20 and has indicated that all procedural steps set out in approved procedural orders, as well as any hearings which are scheduled to occur between March 16 and June 30, are suspended.

Contact us if you have any questions.

The crisis that the world is dealing with is unprecedented in our lifetime.  People are worried not only about their health and the health of their loved ones  but about the long term survival of their businesses and the businesses upon which they rely to operate.  When the crisis passes, we expect to be asked by clients whether they are insured for the business losses that they have suffered.  The answer to this question is dependant upon an interpretation of the wording of your commercial insurance policy.

Insurance policies are all different and can be difficult to understand.  There are provisions that detail what is insured and there are exclusions that operate to limit the insurer’s liability.  These provisions must be read together to come to an understanding of whether a business loss is covered.  Generally, these policies provide for coverage when there is a physical loss. For example, there is coverage when the building in which you operate your business burns down and you have loss of property and loss of income.  This example is a clear case for a claim under an insurance policy, although sometimes this too can lead to litigation when there is a dispute over valuation of the loss.

Insurance coverage for the business losses from the COVID-19 pandemic will be more difficult to claim and will require a detailed analysis of the insurance policy covering your business by an expert in the field.  We are experts and can help you with the claim.  We can also shepherd you through the claim process and litigation if necessary.  Our lawyers have a unique and in depth understanding of insurance and the way in which commercial insurers operate.

If you need us, our Litigation lawyers are here to help.

Effective immediately, the Local Planning Appeal Tribunal has adjourned all appearance hearings, telephone conference calls and mediation event scheduled until April 3, 2020 to be rescheduled at a later date.  The Tribunal will not schedule any new hearing event until further notice.

As of Monday March 16^th, all lawyers and staff are working from home.  A small, brave admin team (who either walk or self-drive to work) is onsite to provide support to the rest of the firm.  We’re confident you will not see a change in our service.

Our reception is closed but we are still able to receive/send courier packages and deliveries by Canada Post.

In order to support public health efforts, the Davies Howe LLP team has implemented a remote work protocol. Our lawyers and staff will be mostly working offsite until further notice.  We will be available by phone, email, and video conference; however, we will not be attending or hosting any in-person meetings.

We are committed to ensuring that the important work that we do continues and our high level of professional service is maintained.  We are following the best practices provided from our public health experts, which gives us confidence that we will all be successful in flattening the curve on the increase in the spread of the COVID-19 virus.

Please be advised:

• The Ontario Courts are closed and all non-urgent hearings have been cancelled/postponed.
• The LPAT has directed that all in-person hearings or mediation events that have been scheduled to commence, or continue on or after Monday March 16^thto Friday April 3^rd will be adjourned and will be rescheduled at a later date.

• At this point all scheduled LPAT teleconference calls will proceed as scheduled.  The Tribunal will not schedule appearance hearings or case management conferences until further notice.

• All TLAB application in-person hearings have been postponed while written and teleconference motions are still scheduled to proceed.

• All Committee of Adjustment hearings in Toronto have also been cancelled/postponed.

• As permitted by municipalities, we will be continuing to make application and other submissions to the best of our ability.  As the situation is expected to change over the coming week(s), we will be update, as may be required, our clients with pending applications or submissions on an individual basis regarding these types of matters.
• The City of Toronto and some other Ontario municipalities have cancelled community consultation meetings until further notice.

• The City of Toronto has cancelled Council and Committee of Council meetings until April 3.

• We are following and responding appropriately to the actions of those municipalities that are still open for business and hosting regular meetings.

• Wherever possible we will file appeals electronically and/or by courier in order to meet any appeal deadlines.

We are here to help.  Please don’t hesitate to reach out to any member of the Davies Howe LLP team by telephone and email to discuss how we can continue to ensure that your project is moving forward.

From the Davies Howe team, we wish you and your families good health.  We are especially grateful to the health care workers in our community for their advice, care and leadership. Let’s all work together to kick Corona Virus to the curb.

Rule 76 (Simplified Procedure) of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”) provides for a streamlined process for claims of a certain monetary value. Effective January 1, 2020, Rule 76 of the Rules was amended, with the goal being to further reduce the costs and time associated with litigation. Below is a summary of some of the changes:

• The monetary value of claims has been increased to $200,000 (from $100,000);

• The time limit for oral discovery has been increased to 3 hours (from 2 hours);

• The choice between ordinary trials and summary trials is eliminated – all trials will, essentially, proceed summarily;

• The duration of a trial cannot exceed 5 days;

• The option for a jury trial is eliminated (except for actions for slander, libel, malicious arrest, malicious prosecution and false imprisonment, which are to proceed as ordinary actions);

• The recovery of costs cannot exceed $50,000 (subject to Rule 76.13 of the Rules or another Act); and

• The recovery of disbursements cannot exceed $25,000, exclusive of HST (subject to Rule 76.13 of the Rules or another Act).

In addition, pre-trial conferences are to be scheduled within 180 days after an action is set down for trial, and at least 30 days prior to the pre-trial conference, the parties are to agree to a proposed trial management plan. This proposed plan is to be filed with the court at least 5 days prior to the pre-trial conference and is to list every witness whose evidence a party intends to adduce at trial as well as the proposed division of time for opening statements, evidence in chief, cross-examination, re-examination and oral argument. Parties will no longer be subject to the time limits prescribed by the Rules as they pertained to the presentation of evidence and argument.

While the pre-trial conference judge and trial judge can vary certain aspects of the trial management plan, neither can extend the duration of the trial to exceed the 5-day limit.

Davies Howe has once again finished in the Top 3 in the 2019 Nova Res Urbis ranking of Toronto law firms.   We’re very proud to have held a top-three positon for ten of the last twelve years.

A great team with consistently great results!

On November 28, 2019, the Ontario Divisional Court ruled in favour of Amacon Development (City Centre) Corp. (“Amacon”) by dismissing the Regional Municipality of Peel’s (the “Region”) motion for leave to appeal from the June 11, 2019 decision of the Local Planning Appeal Tribunal (the “Tribunal”) that amended the Region’s 2015 Development Charge (“DC”) By-law.

The Tribunal held that the Region’s DC By-law provided for residential DC’s that had the effect of subsidizing the increased needs generated by the non-residential category, in conflict with the Development Charges Act (“DC Act”). Further, the Tribunal found that the appropriate deductions for benefits to existing development (“BTE”) and post-period benefits (“PPB”) had not been made.  In its decision, the Tribunal reduced the residential development charge by amending the Region’s DC By-law to reflect appropriate deductions for BTE and PPB and properly allocating costs between the residential and non-residential categories. The amendments were made wholly in accordance with the evidence adduced by Amacon in a well fought victory by Davies Howe.

In pursuing a motion for leave to appeal to the Divisional Court, the Region alleged that the Tribunal had erred in its interpretation of the DC Act, particularly in respect of BTE and the re-allocation of costs between residential and non-residential development, and committed an error in law for failing to provide sufficient reasons for its decision.

In order for a motion for leave to appeal to the Divisional Court to succeed on a question that engages the Tribunal’s special expertise, the Court must be satisfied that:

• The alleged error constitutes a question of law;
• There is good reason to doubt the reasonableness of the Tribunal’s decision on the question of law; and
• The matter is of sufficient importance to warrant the attention of the Divisional Court.

The Divisional Court found that the alleged errors in the Tribunal’s conclusions were not pure questions of law and that the reasons given by the Tribunal, particularly when read in the context of the entire record, were sufficient to avoid reason to doubt the reasonableness of the decision. Accordingly, the Divisional Court dismissed the Region’s motion for leave to appeal.

This decision solidifies Davies Howe’s success for its client at the Tribunal in a closely watched decision by both developers and municipalities.

According to the Region, the result of the decision is that the Region will need to refund approximately $63 million in residential development charges that were paid by developers under the Region’s 2015 DC By-law.

Susan Rosenthal and Mark Flowers of Davies Howe represented Amacon on the motion for leave to appeal at the Divisional Court.

A copy of the Endorsement of Justice H. Sachs, dated November 28, 2019, is found here.