New Democratic Party MPP (Beaches–East York), Michael Prue introduced a bill to the Legislature to amend the Planning Act. If approved, Bill 144, Planning Amendment Act will more than double the time period for an approval authority to give notice of a decision regarding an official plan under section 17(40), zoning by-law under section 34(11) and variances under section 45(4).
Currently, if the approval authority fails to give notice of a decision in respect of all or part of an official plan within 180 days after receipt of the plan, or 120 days after receipt of the application for a zoning by-law amendment, an appeal can be made to the Ontario Municipal Board. Bill 144 proposes to extend this timeline to 365 days.
Also subsection 45(4) of the Planning Act currently requires a committee of adjustment to hold a hearing within 30 days after receipt of a variance application. The Bill extends the timeline to 90 days.
First Reading of Bill 144 was carried on December 3, 2013. The bill will need to go through second and third reading before receiving Royal Assent. There is no proposed timeline for the process as of yet.
With the current wait for scheduling hearings at the Ontario Municipal Board this amendment will compound delays in the planning process.
By: Katarzyna SliwaRead More
In a recent unreported decision won by Robert Richler of Davies Howe Partners LLP, the Small Claims Court re-affirmed the law regarding addition and substitution of parties in Small Claims Court proceedings, and awarded significant costs against the Plaintiffs whose counsel brought a motion to do so on the eve of trial.
The Plaintiffs’ motion sought to add our client to the main action well after the expiry of the applicable limitation period. As an alternative argument, the Plaintiffs’ lawyer suggested that the court could substitute the non-party into the shoes of one of the existing Defendants if the Court was not prepared to simply add our client as a Defendant. The Court recognized that the Plaintiffs’ true intent was to keep both parties involved in the action and dismissed the motion.
The Court also considered the timing of the motion and re-affirmed that existing law that the Small Claims Court will not add non-parties to small claims litigation on the eve of trial.
In the same decision, the court clarified the limits of “discovery” in Small Claims Court proceedings. The Plaintiffs brought a second motion on the eve of trial requesting that the Defendants disclose a significant number of additional documents. For all intents and purposes, the Plaintiffs abandoned their motion against one Defendant prior to the hearing of the motion but pursued the motion against the co-Defendant. After hearing arguments from the parties, the Court affirmed that the appropriate time to bring motions for disclosure of documents in Small Claims Court proceedings is during the settlement conference process. After that time, the Court has no jurisdiction to make such orders.
By: Robert RichlerRead More
The Province of Ontario is currently conducting two consultations that will have significant impacts on the new housing and land development industry in the province of Ontario. The Provincial Government is engaging stakeholders across the province through workshops to review Ontario’s land-use planning system and development charges regime.
The Province has been careful to point out that it is not seeking recommendations that would result in the following:
- Eliminating or overhauling the Planning Act
- Eliminating or changing the OMB’s operations, practices and procedures
- Removing or restricting the provincial government’s approval role and ability to intervene in planning matters
- Removing municipal flexibility in addressing local priorities
- Changing the “growth pays for growth” principle of development charge
- Education development charges and the development charges appeal system
- Creating additional fees and/or taxes
- Matters involving other legislation, unless minor housekeeping changes are needed.
Nonetheless, the review is ambitious in its desire to seek input and implement changes to improve Ontario’s land-use planning system, including what can be appealed to the Ontario Municipal Board, and to increase accountability and transparency measures for development charges and other tools that exchange community benefits for increased density, such as parkland dedication and section 37 benefits (i.e., community infrastructure investments).
According to the Province, “the workshops will collect ideas from participants on making the land use planning and appeals system and the development charges system more effective to ensure they support local and provincial objectives while securing sustainable financing for new development. The goal is to ensure the systems are predictable, transparent, cost-effective and responsive to the changing needs of Ontario’s communities.”
The need for a review Ontario’s land-use planning system can in many ways be said to have been brought on largely by a greater shift towards intensification spurred by the Province’s Places to Grow and greenbelt policies. This is also true of the review of the development charges regime, where local municipalities speak of challenges of paying for infrastructure to accommodate the ever changing growth landscape, while the development industry argues that requirements to fund infrastructure costs that also benefit the existing population base have significant negative impacts on affordability for new home buyers.
The workshops are currently scheduled to be held through January, 2014. For more information, please see the Provincial Government’s website.
By: Daniel SteinbergRead More
The role of the planner has become somewhat of an amorphous concept, which encompasses much more than forming an opinion on the merits of a proposal, and conveying that opinion in the approval process. Planners are often the public face of a project. As such, this squarely places the question: is it appropriate for a planner to be a lobbyist? In turn, this is part of the larger question on the role of “advocacy” in the planning profession. As with most legal questions, the answer is not found by reference to a single rule or source that governs every situation. Instead, the analysis requires a contextual approach.
The Ontario Municipal Board has taken a consistent line: a planner is not and must not behave as an “advocate” in that forum. Further, pursuant to the OPPI Code of Conduct, planners have a primary responsibility to define and serve the interests of the public. The inevitable question arises: how does one reconcile the planner’s duty to the public interest and the Board, with the practice of lobbying?
In our view, the key is in a more nuanced understanding of the word “advocate”. Planners can be advocates, but only for their own opinions, and not for their clients’ interests. Under this view, planners are not prevented from holding views forcefully and defending them. This is not advocacy of a client position, but defence of a professional opinion, and is an acceptable posture for a planner, provided that s/he has conducted an independent analysis and conscientiously formed that opinion. The other kind of advocacy (i.e. for a client’s benefit) does not require professional independence or objectivity, and planners should not undertake it.
Planners should consult and follow the OPPI and CIP Codes of Conduct, and ensure that they properly reconcile their retainers with their primary responsibility to the public interest. They should also ask themselves early in their retainers whether it would be possible for them to engage in lobbying and later sign the Board’s Acknowledgement of Expert’s Duty. In matters likely to wind up at the Board, it would be a serious disservice to a client to be unable to testify, or to have one’s credibility damaged by a skillful cross-examination about pre-hearing advocacy or lobbying.
Finally, planners must be particularly aware of the rules for contact with politicians and staff in municipal jurisdictions with lobbyist registries. For example, in the City of Toronto, there are obligations on lobbyists to register and comply with Chapter 140 of the Municipal Code.
Taken together, these thoughts counsel caution. The planner must ask: should I be the lobbyist, or should that task be performed by someone else? And, having taken on that role, a planner must scrupulously ensure that they act as an independent expert, and are seen to be doing so.
By: Matthew A. Di Vona
This article is based on a presentation given by Mr. Michael Melling (Partner, Davies Howe Partners LLP) for the Law Society of Upper Canada. Having said that, the opinion stated herein is my own responsibility.Read More
On November 5, 2013, the Toronto Preservation Board (“TRB”) deferred its decision regarding the demolition of four Designated Heritage Properties located at 266, 276, 284, and 322 King Street West.
Proposed for the site where the heritage properties currently stand is the much publicized Mirvish+Gehry Toronto project – a mixed-use development comprised of three supertall towers reaching 82, 84, and, 86 storeys.
Though not necessarily remarkable, the Designated Heritage Properties – all early 20th Century warehouse buildings – are considered to be prime examples of King West’s manufacturing history and an important part of Toronto’s architectural and built form heritage.
The Mirvish+Gehry project team supports demolishing the warehouses in favour of what will be, in the words of the developer’s heritage report, “an iconic landmark of international significance, enhancing downtown Toronto and its skyline”. On the contrary, the City’s Acting Director of Urban Design, submitted to the TRB, that the City does not consider the demolitions of the designated buildings as reasonable and preferred if the existing structures were incorporated into the Mirvish+Gehry design.
It is important to consider that policy directions in the PPS and Growth Plan support intensification, optimisation, making efficient use of existing and planned infrastructure, facilitating transit-supportive development and compact form.
At first glance, smart growth principles and the preservation of Toronto’s heritage seem to represent competing interests. Consequently, as Toronto continues to age and physical space becomes more of a premium, the spotlight on heritage invariably will increase. The City’s eventual determination on the Mirvish+Gehry project could serve as a benchmark precedent on the direction of new development in Toronto’s constrained historic districts going forward.
Toronto and East York Community Council will consider the matter at its meeting on Tuesday, November 19.
By: Jason LewisRead More
When someone is unable to work for a prolonged period due to an injury, their first resort for financial support is a government-mandated disability benefit, such as those paid by the Workplace Safety & Insurance Board (WSIB) or the Canada Pension Plan (CPP). The next resort, if purchased by the employer or employee, is long-term disability (LTD) insurance.
Generally, an LTD policy will deduct from its benefits any amounts received by the insured from sources such as WSIB and CPP. Further, if the insured is denied benefits from one of these sources but successfully appeals the decision, the amount received by the insured generally must be paid to the LTD insurer since it constitutes an “over-payment”.
But when an insured successfully appeals a WSIB decision, does the insured or the insurer pay the legal fees associated with the appeal? In other words, can the insured deduct these legal fees from the amount they must repay to the insurer?
These questions were recently considered in RBC Life Ins. v. Janson. In that case, the insured successfully appealed a denial of WSIB benefits, meaning there was an over-payment.
The court held that it could not imply a right to deduct legal fees into the policy. The court also rejected the insured’s argument that an LTD policy is a contract of indemnity by which the insured is to be “made whole”. Rather, the terms of the contract govern.
This case affirms that, absent ambiguous language in the contract, the insured pays to appeal a denial of benefits, not the insurer. However, this also means that the insured will have little incentive to pursue an appeal if it will not result in a net benefit after legal fees. It will therefore likely be important for the insurer to incorporate a requirement to appeal into the policy, and to deduct from its payments the amount of WSIB and CPP it estimates the insured is entitled to.
By: Kyle GossenRead More
On May 9, 2013, the City of Toronto passed a new city-wide zoning by-law, known as By-law 569-2013 (the “New By-law”). The objective of the New By-law was to harmonize 43 former by-laws from the pre-amalgamated City into one by-law.
The City set up a useful website to view the New By-law text, mapping, and other background information at www.toronto.ca/zoning. The interactive map on this site allows users to search individual properties to retrieve information about applicable by-law standards, including exceptions.
The New By-law provides an innovative approach for transitioning current applications. This transition protocol allows certain complete applications filed before the passing of the New By-law to be processed and approved under the former general zoning by-laws. These policies expire on May 9, 2016.
In addition to the transition protocol, certain sites are indicated as “holes” in the New By-law, which are shown in grey on the online mapping. On these sites, the former general by-laws continue to apply. The City intends to eventually bring these sites into the New By-law, after consultation with property owners.
A full explanation of the transition protocol is available on the City’s website: http://www.toronto.ca/zoning/transition.htm
By: Isaiah BanachRead More
Although traditionally portrayed as bland outposts on the fringe of the urbanized city centre, Toronto’s suburbs are increasingly being recognized as dynamic centres of growth and innovative change in their own right.
A recent article entitled On the (Cutting) Edge of the Global City examines the evolving development of the GTA’s suburban municipalities. The authors’ findings conclude that the areas outside the city core can no longer be considered homogenous built environments that function as subservient ancillary spaces to the political, cultural, and economic life of downtown Toronto. Rather, suburban centres are demonstrating themselves to be diverse hubs of development and commerce as a result of “dynamic urbanization and modes of urbanism unfurling at the cutting edge of the global metropolis”.
Various trends have contributed to this new form of suburban urbanization. The globalization of suburban economics, in particular the manufacturing and distribution sectors that have largely left the downtown core, are now based along interconnected rail, highway, and airport transportation routes spanning the suburban GTA. The article also looks to the suburbs as hubs of transnational capital, centred around strong ethnic communities and businesses that bring international commerce to the GTA. This intensification and nodal development of suburban downtowns in places like Mississauga, Brampton, Vaughan, and Markham have led these areas to be called “cities in waiting”.
The article also identifies outstanding issues that remain to be addressed. The need for more transit services to and from suburban centres becomes increasingly prominent as development in these areas continues. Significantly, the authors point out that revitalization of the inner suburbs of Toronto must also be carefully examined. Although urbanization along major avenues within Toronto’s city limits is occurring, this remains in stark contrast with the car-oriented communities found in residential subdivisions off the main roads.
For the full article, please see On the (Cutting) Edge of the Global City, by Jean-Paul Addie & Rob Fiedler (Satellite Magazine, Monday, October 14, 2013)
By: Alexander SurianoRead More
Davies Howe Partners LLP enthusiastically received the announcement that the anchor tenant for the new King East Centre (351 King Street East, Toronto) will be the Country’s most venerated newspaper – the Globe and Mail.
As counsel to a neighbouring landowner, Davies Howe Partners LLP worked extensively with the Centre’s developer, First Gulf, to sort through the intricate issue of tower separation and ensure that the construction of the Centre would not have a detrimental impact on our client’s neighboring building.
Now known as the Globe and Mail Centre, the 17-storey tower will be an iconic office tower in the burgeoning King East neighbourhood. Davies Howe Partners LLP are pleased to have contributed to this exciting project.Read More
We’re not ignoring you. The power is out in our building and we have no email but we expect our service to be back up again Saturday evening.Read More