The December 2013 ice storm caused significant damage to Toronto’s trees. The City estimates that up to 20 percent of the City’s trees may have been damaged in the storm.
The damage is a setback for a City known for its green canopy. The City’s Parks, Forestry, and Recreation Department’s Forest Management Plan 2012-2022 identified the pre-ice storm canopy cover in the City in the range of 26.6% to 28%. The same Plan lists as its first strategic goal the expansion of the urban forest to achieve a canopy cover of 40%.
We expect the City will continue with the direction in the Forest Management Plan to protect and maintain the existing canopy and to stress, now more than ever, the need for ongoing tree plantings. The Toronto Parks & Trees Foundation is running a “Recover The Canopy” campaign to gives residents and others an opportunity to make a tax-deductible donation to help rebuild Toronto’s damaged tree canopy.
In a City proud of its trees, these trees are carefully regulated during the planning approval process. Chapter 813 of the City’s Municipal Code regulates the care, maintenance and removal of trees. This Chapter also regulates the injury or destruction of trees and the minimum tree protection zone where construction is contemplated near trees.
By: Isaiah BanachRead More
When it comes to the serving materials on a large number of respondents—whether it’s a few dozen, a few hundred, or more—the reported case law is extremely sparse. There is little guidance on appropriate methods of substituted service for groups of this size, let alone guidance on dispensing with service altogether.
In a recent unreported Superior Court of Justice decision, we were successful in obtaining an order dispensing with service on about 700 respondents so that a developer could proceed with its plan to build a subdivision.
The standard test to dispense with service under Rule 16.04(1) of the Rules of Civil Procedure has two prongs: it must be impractical to effect prompt service (meaning all reasonable steps have been taken to locate and serve the parties), and it must be in the interests of justice to dispense with service.
However, with a large group of respondents, what “reasonable steps” should an applicant be expected to take? Even if the applicant knows the location of each respondent and is able to serve them, it may not be reasonable in the circumstances to take any steps if the logistics and costs of service are prohibitive. However, reasonableness will also depend on the second prong of the test: the interests of justice.
The interests of justice take into account the interests of both the respondents and the applicant (although on an ex parte motion of this sort, greater weight will be given to the respondents’ interests). How will the proceeding affect the parties’ legal rights? Are serious allegations being made? How will success or failure impact the parties, financially or otherwise?
In the proceeding at hand, the applicant developer was seeking to delete an easement over its lands that was registered on title for hundreds of lots in an adjacent subdivision. This easement was preventing the development of the applicant’s subdivision. The easement, made years earlier, allowed the developer of the adjacent lands to run utility pipes under the applicant’s land. However, through an error, the easement had carried over to each of the lots in the adjacent subdivision.
Removing the easement would technically alter the respondents’ property rights, but without any negative legal or practical effects. Further, service on such a large (and in this case, indeterminate) number of respondents would have been possible but very costly. Therefore, the presiding judge granted our motion to dispense with service.
The decision shows that when an applicant seeks substituted service or no service for a large group of respondents, the court will tend to take a contextual and practical approach. Ultimately, it will weigh the impact on the respondents if the service requirements are relaxed or eliminated (e.g. potentially not receiving notice and judgement being given) with the impact on the applicant if service is required (e.g. creating a significant barrier to relief).
By: Kyle GossenRead More
Jeff Davies has once again been recognized as one of the Leading 500 Lawyers in Canada (Property Development) in the 2014 Lexpert/ALM 500. Published since 1997, The Lexpert®/American Lawyer Guide to the Leading 500 Lawyers in Canada is the most comprehensive guide to legal talent in Canada. It identifies the most frequently recommended lawyers across Canada in 39 practice areas. It has become the resource of choice for American and Canadian in-house counsel and law firms in need of Canadian legal expertise. The Davies Howe Partners LLP Land Use group is at your service.Read More
Davies Howe Partners LLP has once again been recognized by Novae Res Urbis as the top firm in the 16th Annual rankings of the GTA’s most prominent Planning and Development law firms. Davies Howe has been #1 for 3 of the last four years and we intend to stay there. For the complete Novae Res Urbis rankings, please click here to Read More. For our ranking history, click here.Read More
Davies Howe Partners LLP has once again been recognized by Novae Res Urbis as a top contender in the 16th Annual rankings of Toronto’s most prominent Planning and Development law firms. Davies Howe been in the top 3 for six years in a row proving once again that size does, or does not (depending on how you look at it), matter. For the complete Novae Res Urbiz rankings, please click here to Read More . For our ranking history, click here .
The City of Toronto is in the midst of a review of its Official Plan and a municipal comprehensive review looking specifically at designated areas of employment in the City. On November 21, Planning and Growth Management Committee held a special public meeting to consider draft Official Plan policies and designations for employment areas, as well as recommendations from the Planning Division on approximately 125 employment land conversion requests.
The draft Official Plan policies seek to eliminate the existing distinction between “Employment Areas” and “Employment Districts” and instead propose two designations of “General Employment Area” and “Core Employment Area”. The “General Employment Area” designation will include broader permissions for uses such as retail and restaurants.
New policies proposed with respect to employment land conversions are noteworthy in their potential effect on landowners who may be seeking to add or change uses on their employment lands in the future. These new policies declare that the addition of any use that is not permitted in an “Employment Area” is a conversion and removal of employment land. The policies go even further to declare that the introduction of “General Employment Area” use into a “Core Employment Area” is also a conversion.
These policies are likely to be controversial in light of the provisions of the Planning Act which restrict appeals of private official plan amendments that would remove lands from an employment area.
Planning and Growth Management Committee recommended that Council amend the Official Plan in accordance with the draft policies, subject to a number of modifications and amendments. The date for consideration by Council has not yet been set.
By: Meaghan McDermidRead More
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