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After grappling with the question of how to increase the efficiency of the hearing process, at its May 7 Public Business Meeting, the Toronto Local Appeal Body (“TLAB”) decided it will move forward with a pilot project requiring Pre-Hearing Conferences (“PHC”) for all hearings anticipated to take longer than the typical duration.

Among several issues discussed, Item 31.5 proposed a new Practice Direction for Hearing Extensions (the “Proposed Direction”). The Proposed Direction was an attempt to address public feedback which characterized the current TLAB process as cumbersome and inefficient. It would require ‘variance-only’ hearings to be scheduled for no more than 2 hearing days and for ‘consent and variances’ hearings to be scheduled for no more than 4 hearing days. If the assigned Member believes a hearing may require additional days, the Member would hold a PHC where they could hear from all Parties on scheduling and determine the appropriate number of days required for the hearing. This proposal was intended to increase the efficiency of the TLAB process by establishing firm commitments from the Parties and representatives involved concerning the amount of time required throughout each step of the hearing process.

Throughout the discussion, several TLAB Members expressed concern that placing limitations on hearing days could hurt the current process. The Members believe that setting a limitation on the number of days for a hearing may lead to some Parties not having an adequate amount of time to defend their positions. While the Members of the TLAB acknowledged the importance of increasing the efficiency of the current process, the Members were more concerned with ensuring that those who participate in the TLAB process feel that they have been given a fair hearing with sufficient time to be heard.

As such, the Members were not in favour of the Proposed Direction. However, a pilot project for PHCs will move forward, in which certain matters will have a PHC scheduled and heard by the Vice-Chair of the TLAB. In PHCs, the Parties would be encouraged to settle or resolve the issues raised. If a TLAB hearing is still required, the Vice-Chair would establish a limit on the number of hearing days. The Board will reconsider this Item at a later date following feedback from the pilot project.

In a May 6, 2021  Council decision, the City of Toronto (the “City”) adopted the recommendations set forth in item PH22.7, which directs City Planning to conduct a study regarding potential changes to the Committee of Adjustment (“CoA”), including but not limited to:

• Alternatives to the CoA process for minor variances and severances;
• Changes to notice options;
• Resident concerns with the current process;
• Education and training of Members on both procedures and substance of the CoA mandate; and
• Revisions to committee processes, based on tribunal best practices.

What do the potential changes mean?

It is unclear what possible alternatives exist for the passage of minor variances and severances. Section 44 of the Planning Act (the “Act”) states that a municipality may by by-law constitute and appoint a CoA, while subsections 45(1) and 53(1) authorize a CoA to grant minor variances or consents. In theory, this means that the City could choose to administer minor variances and consents without a CoA; however, given thousands of matters are dealt with at committee every year, it is unlikely that the City’s reappropriation of these powers would lead to a more efficient or expeditious planning process.

In the City’s deliberations, concerns were also raised that Notices of Public Hearings were not being delivered in time to residents, thus preventing residents from speaking before the committee, or simply giving inadequate time for them to prepare remarks. Section 3 of Ontario Regulation 200/96 Minor Variance Applications (the “Regulation”) requires a Notice Period of at least 10 days before a hearing to be given to every landowner within 60 metres of the application area. The City’s internal process is to mail notice 20 days ahead of a hearing. As of the onset of virtual CoA hearings on May 28, 2020, the City has extended this notice to 22-24 days. It is uncertain if a further extension would have a significant impact on resident participation.

Lastly, during its meeting council proposed studying changes in respect of:

• Access to the CoA
• The transparency of the hearing process
• The grounds upon which the CoA makes their decisions.

These proposals were brought forth largely in response to comments received from certain resident groups to address perceived unfairness within both the CoA’s process and its planning decisions. These considerations will ultimately be part of City Planning’s review of the CoA and inform its eventual recommendations to Council.

While this review is in its early stages, we will continue to monitor potential changes to the CoA and outline any future impacts to matters before the body in a future blog post.

The City of Toronto (the “City”) is moving ahead with transforming its development review process through the implementation of the Concept 2 Keys (“C2K”) program, which we last reported on in October, 2020. C2K is the City’s response to its development review process report entitled End to End Review released in August 2019 (the “Report”). The Report aims to reimagine organizational structures, processes and technology to provide for a more seamless and collaborative approach to development review. In the age of virtual work environments, the need to foster collaboration between staff, applicants and the public has only increased.

What are the changes?

On a technical level, C2K’s changes to the review process include the launch of a new online application submission tool with new user-friendly forms and templates, and the expansion of the online intake portal. A new commenting mark-up tool will enable City staff and commenting partners to review planning applications, provide comments and collaboratively revise planning drawings. These changes are proposed to foster a more collaborative and iterative approach to development review, while simultaneously shortening review turnaround times.

Changes to the review process itself involve the creation of dedicated application review teams made up of members from various City divisions and overseen by new application managers and coordinators. Upon receipt of an application, teams will work to identify preliminary issues and communicate the City’s requirements and expectations. The hope is to provide a coordinated approach to development review that avoids conflicting instructions from different divisions. Should there be competing or conflicting priorities between divisions, a new Issues Resolution Table (“IRT”) has been created where new relationships and issues coordinators will facilitate internal discussion and resolve (or escalate) issues within ten business days, while updating the applicant on an ongoing basis.

Applicants can also bring issues to the IRT through a new relationship and issues management function on the review portal, which provides a single place to go to resolve file specific issues. Touch points with applicants and the City will also be increased, including through pre-application meetings, to avoid the need for the IRT to be used in all circumstances.

How is the program being implemented?

Currently, C2K is being piloted on affordable housing development applications and long-term care applications which meet the affordability criteria outlined in the City’s HousingTO 2020-2030 Acton Plan. Thirteen applications are currently participating in the C2K process (click here).  Plans to gradually expand the process to non-affordable housing in a “Phase 2” have not yet been given a firm date.

The prioritization of affordable housing projects within C2K is consistent with the City’s goal of constructing 40,000 new affordable rental homes by 2030 and is sensible within the affordable housing context, where construction of projects are increasingly being spearheaded by the City itself. However, it remains to be seen whether this increased efficiency will be preferable for private applicants over filing an LPAT appeal for failure of Council to reach a decision within the prescribed statutory periods.

It has been over one year since Ontario declared a state of emergency in response to the COVID-19 pandemic. Since then, COVID has had profound impacts on employees in Ontario and across Canada. They have been faced with temporary layoffs, reductions in the scope of their duties, and in some cases, termination. Where an employee has been terminated, they will be entitled to reasonable notice at common law, subject to the terms of their employment contract.

The purpose of reasonable notice (or pay in lieu of notice) is to provide the employee with an opportunity to seek alternative employment. Calculating the reasonable notice period is a highly fact-specific exercise and Courts will typically consider the following factors: 1) the employee’s age; 2) the length of service; 3) the character of the employment; and 4) the availability of similar employment. With that in mind, Courts in Ontario have now been asked to consider whether the impact of COVID on the job market should extend reasonable notice periods for terminated employees. Although Courts have suggested that COVID may extend reasonable notice periods, they have thus far declined award lengthier notice periods in response to COVID.

Recent Case Law

The case of Yee v. Hudson’s Bay Company, 2021 ONSC 387, a recent decision of the Ontario Superior Court of Justice, involved a 62-year-old plaintiff  who was terminated by the defendant employer after more than 11 years of service. The plaintiff’s employment was terminated in August of 2019 – just over six months before the beginning of the COVID pandemic. The plaintiff argued that, in determining the appropriate reasonable notice period, the Court should consider the COVID pandemic and the associated challenges in obtaining comparable employment. There was evidence that the plaintiff had submitted approximately 90 employment applications without success.

The Court distinguished between terminations occurring before and after the beginning of the COVID pandemic. Specifically, the Court held that pre-pandemic terminations should not attract the same consideration as post-pandemic terminations in terms of the pandemic’s negative effect on finding comparable employment. The Court’s holding appeared to suggest that terminations occurring after the beginning of the pandemic could result in longer periods of reasonable notice.

However, in Iriotakis v. Peninsula Employment Services Limited, 2021 ONSC 998, the Ontario Superior Court of Justice refused to extend the reasonable notice period for a termination that occurred after the pandemic was declared. In that case, the plaintiff was employed as a business development manager with the defendant employer for just under two and a half years. The plaintiff’s employment was terminated one week after Ontario declared a state of emergency due to the pandemic.

Although the Court acknowledged that the pandemic had some influence on the plaintiff’s job search, the Court stated that the impact of the pandemic on the job market was “highly speculative and uncertain both as to degree and to duration” at the time the plaintiff’s employment was terminated. The Court also warned about the dangers of applying hindsight when calculating the appropriate period of reasonable notice. The plaintiff was ultimately awarded three months’ notice.

Takeaways

The case law dealing with post-pandemic terminations is currently limited. Courts have not yet considered a case where an employee was terminated at the height of the pandemic. Although there are existing criteria which Courts apply to determine reasonable notice periods, it remains to be seen whether Courts will place additional weight on the COVID pandemic when considering the availability of similar employment for post-pandemic terminations. For now, Courts appear to be taking a conservative approach, but we will continue to monitor this issue for further developments.

Questions? Contact David Cherepacha or Ava Kanner

With warmer weather and sunnier days approaching, outdoor dining on one of the City’s many patios could again become one of the most popular pandemic activities, subject to Provincial government regulations permitting restaurants the ability to provide outdoor dining. The pandemic forced everyone to adapt to the “new normal” rather quickly and outdoor patios were not an exception. Since the onset of the pandemic, the City has introduced two by-laws as well as an initiative to give more restaurant and food establishments the opportunity to create and expand their outdoor patio spaces during these times. Below is an overview of the temporary use by-laws and the CafeTO program that are making these expansions more feasible.

Minister’s Zoning Order and Temporary Use By-laws

In July 2020, the Province issued Ontario Regulations 345/20 and 358/20 (collectively, the “Regulations”). O. Reg. 345/20 authorized City Council to adopt a by-law that authorized the temporary use of land for a restaurant or bar patio without the need to hold a statutory public meeting and without being appealable to the Local Planning Appeal Tribunal (LPAT). O. Reg. 358/20, which was also a Ministerial Zoning Order (“MZO”), expanded zoning permissions for outdoor patios in the City, expiring on November 16, 2020. These permissions were required to achieve the following objectives requested by City Council:

• Permit surface outdoor patios in certain zones which ordinarily permit eating establishments, but not outdoor patios;
• Remove restrictions in the Employment Industrial Zones of Zoning By-law 569-2013, which limit the amount of front yard an outdoor patio may occupy and require a setback from the front lot line;
• Allow an outdoor patio to occupy space that would otherwise be required for parking; and
• Increase the permitted maximum area of surface outdoor patios ancillary to eating establishments, take-out establishments, and recreation uses.

Pursuant to the Regulations, City Council adopted two temporary use by-laws on October 27, 2020 which replaced the expiring MZO. The two temporary use by-laws intended to continue to ease restrictions for patios during the winter months (the “By-laws”). The By-laws allowed an increase to the maximum size of outdoor patios and removed restrictions that prevented locating an outdoor patio in front of buildings. The By-laws are set to expire on May 25, 2021.

The By-laws grant the following permissions:

• Permit surface outdoor patios in Local Commercial Zones (CL) in Zoning by-law 569-2013 and similar zones in the former municipal zoning by-laws which ordinarily permit restaurants but not outdoor patios;
• Remove restrictions in the Employment Industrial Zones of Zoning By-law 569-2013 which limit the amount of front yard an outdoor patio may occupy and require a setback from the front lot line;
• Allow an outdoor patio to occupy the area of non-residential parking spaces; and
• Increase the permitted maximum area of surface outdoor patios to the greater of 50 square metres or 50% of the establishment’s interior floor area.

On March 10, 2021, City Council adopted two new temporary use by-laws which are identical to and replace the By-laws that are expiring on May 25, 2021. The new temporary use by-laws are set to expire on April 14, 2022.

CafeTO Program

Since its adoption on June 29, 2020, the CafeTO program has made it feasible for numerous restaurants and food establishments across the city to continue their operations throughout the warmer months. CafeTO provides an opportunity for restaurants and bars to expand their outdoor eating spaces into the public right-of-way, mostly on sidewalks and curb lanes.

In 2020, the program was approved to run from July 1, 2020 until April 14, 2021, and was further extended to run until November 10, 2021. The program is proposed to end on April 14, 2022 in conjunction with the By-laws.

To participate in the CafeTO program to install or expand a café, you must register with the City. Following registration, City staff review your proposal for compliance with applicable guidelines, policies and by-laws. Upon receiving a positive confirmation from the City, you may operate new and expanded sidewalk cafes as soon as outdoor dining is permitted under provincial regulations in Toronto. Further information on CaféTO and associated guidelines can be found here. While the first registration window for curb lane cafes closed on March 26, 2021, a second round of registrations opened on March 27, 2021 and will close in May 2021 (exact date to be determined).

While most outdoor café expansions require CafeTO registration, the following two instances do not require registration and can operate as-is:

• Small Sidewalk Frontage Café: single line of seating directly in front of the business not exceeding an area of 0.8 m x 5.5 m; and
• Existing Permanent Café Licences: permanent, licensed sidewalk cafes who held a permit before March 2020 and do not wish to expand on the sidewalk or the curb lane.

Additionally, patios that are located entirely on private property, comply with the applicable City-wide zoning by-laws and do not incorporate any structures that require a building permit do not require permission from the City prior to installation. Guidelines for outdoor patios located on private property can be found here.

For situations where an outdoor patio that complies with City-wide zoning regulations is not feasible on the subject site or where a patio under the CafeTO program is not feasible,  City Council requested at its March 10, 2021 meeting, that staff bring forward City-initiated site-specific temporary use by-laws to provide site-specific zoning relief for outdoor patios located on private property.

If you are looking to install or expand a patio on public or private property and have additional questions, do not hesitate to reach out and one of our lawyers will be happy to help you navigate through the process.

On April 12, 2021, Bill 257 received royal assent. Bill 257 was introduced on March 4, 2021 under the Supporting Broadband and Infrastructure Expansion Act, 2021 with three Schedules. Schedule 1 expediates the delivery of broadband projects of provincial significance. Schedule 2 amends the Ontario Energy Board Act, 1998 by adding a new part which applies to development of electricity infrastructure for purposes other than generation, transmission, distribution, consumption, sale or demand management of electricity, if the development is specified by regulations. However most notably, Schedule 3 adds three new subsections to section 47 of the Planning Act regarding Ministerial Zoning Orders (“MZOs”), which came into force upon receiving royal assent. To learn more about MZOs, see our previous blog post. Ultimately, the Minister’s decision to issue an MZO no longer requires consistency with the provincial policy statements in effect at the time of the Minister’s decision, mainly, the Provincial Policy Statement, 2020 (the “PPS”). This subsection will apply retroactively, however, the Greenbelt Area is exempt from this exception, meaning that any proposed MZO on Greenbelt Area, will still have to be consistent with the PPS.

For more information, please do not hesitate to reach out to the lawyers at Davies Howe LLP.

In the recent decision of C.M. Callow Inc. v. Zollinger, 2020 SCC 45 (“Callow”), the Supreme Court of Canada reaffirmed the principles relating to the duty of honest contractual performance, as set out in Bhasin v. Hrynew, 2014 SCC 71 (“Bhasin”). This duty requires contracting parties to be honest with each other in performing their contractual obligations, and to not lie or knowingly mislead each other about matters directly linked to the performance of the contract. Although contracting parties have no duty to disclose material information, the Supreme Court in Callow confirmed that knowingly misleading another party is not confined to direct lies and can include silence in some circumstances.

Summary of the Case

The plaintiff in Callow entered into two seasonal maintenance contracts with the defendant condominium corporations: a winter maintenance contract and a summer maintenance contract. The winter maintenance contract covered the period from November 2012 to April 2014. One of the provisions of the winter maintenance contract permitted the defendants to terminate the contract for any reason by providing ten days’ written notice. The defendants made the decision to terminate the winter maintenance contract during the spring of 2013, but decided not to notify the plaintiff of this decision until September 2013. In the meantime, the defendants engaged in discussions with the plaintiff regarding the renewal of the winter maintenance contract and led the plaintiff to believe that they were satisfied with the plaintiff’s services and that the contract was likely to be renewed. As a result, during the summer of 2013, the plaintiff performed extra work related to the summer maintenance contract, hoping that it would act as an incentive for the defendants to renew the winter maintenance contract.

After notice of the termination was given, the plaintiff sued the defendants alleging that they had acted in bad faith and had breached the duty of honest contractual performance. The trial judge found that the defendants had “actively deceived” the plaintiff between the time the termination decision was made in the spring of 2013 and the time when notice was given in September 2013. The Court of Appeal reversed the trial judge’s decision and concluded that the trial judge had improperly expanded the duty of honest contractual performance beyond the terms of the winter maintenance contract. The plaintiff appealed to the Supreme Court of Canada.

The majority of the Supreme Court held that the defendants knowingly misled the plaintiff in the manner in which it exercised the termination clause in the winter maintenance contract, which amounted to a breach of the duty of honest contractual performance. In reaching this conclusion, the Court confirmed that the question of whether or not a party has “knowingly misled” another party is a highly fact-specific determination, and can include lies, half-truths, omissions and even silence, depending on the circumstances. Although the defendants had a right to terminate the winter maintenance contract, that right had to be exercised honestly and in good faith. Through its actions, the defendants gave the plaintiff the false impression that the winter maintenance contract would be renewed. Upon realizing that the plaintiff was under this false impression, the defendants had an obligation to correct the misapprehension. By deliberately choosing to remain silent, the Court found that the defendants breached the duty to act honestly.

Key Takeaways

 Although the facts of Callow make it quite clear that the defendants knowingly and intentionally misled the plaintiff, in other circumstances it might be more difficult to assess on the facts whether the duty of honest contractual performance has been breached. As a result, Callow appears to inject some commercial uncertainty into the area of contract law because it may be difficult for a party to know when another party is under a mistaken impression, and when it is obliged to take proactive steps to correct a misapprehension. Accordingly, the Supreme Court’s decision makes it imperative that parties to a contract act honestly.

The Government of Ontario has proposed changes to the Expropriations Act that, if implemented, will have a significant impact on claims by expropriated landowners. As of March 23, 2021, these changes have survived Second Reading.

Interest rates

Under the current legislation, an expropriated owner is entitled to be paid interest on the compensation for the market value of the expropriated lands and on any amount paid for injurious affection.  Interest is paid at the rate of 6% a year, calculated from the date the owner ceases to reside on or make productive use of the lands.  In certain situations, the amount of interest can be significant.

The rate was set in the late 1960’s when 6% was a standard rate of interest for a mortgage and people could earn interest by simply depositing money into a bank account.  We can refer to those as “the good old days”.

Bill 245 proposes to amend subsection 33(1) of the Expropriations Act to provide for annual rates of interest to be determined by regulation.  At the moment, we do not know how the legislator will deal with the transition provisions for expropriations that predate the change but we can be assured that, going forward, the rate will be much lower than 6%.

Reimbursement of Costs

Under the current legislation, subject to certain exceptions, an expropriating authority must reimburse the reasonable costs incurred by an owner in making a claim for compensation. From the perspective of the owner, this is only fair because being forced to relinquish ownership of lands by a government authority should not result in costs being born by the owner.

We have expressed concern about the proposed revisions to the law because they appear to create the possibility that what will now be called the new Ontario Land Tribunal will have the power to award less than the actual reasonable costs incurred by a landowner.  From our perspective, this flies in the face of the goal of the Expropriations Act, which is to make the owner whole notwithstanding the exercise of the government’s power to expropriate.

We will continue to monitor these changes and update the blog as appropriate.

For more information, please contact Ava Kanner.

The Planning and Housing Committee recently considered a report regarding the Proposed Review of Parking Requirements for New Development in the City of Toronto (the “City”). This report responds to a need to update the zoning by-law regulations, which have not been reviewed since 2013, when Zoning By-law 569-2013 (the “By-law”) was adopted. Since then, the push for Transit Oriented Development (“TOD”) and Transit Oriented Communities (“TOC”) have sparked a demand to revaluate the way that land is currently used in the City and the modal future of our communities.

Straying away from the previous principle of establishing a minimum amount of parking per given land use, the City is instead proposing to establish a maximum amount of parking to increase efficiency in the development process. While the objective is to establish new maximums, parking minimums would remain for some requirements, such as accessible parking spaces.

Overview of the Proposed Review

The City will be conducting their review in 3 phases.

Phase 1 will focus on:

• Grouping land uses into categories with similar parking needs to reduce the number of different parking requirements;
• Developing new parking policy area boundaries near transit facilities and higher order transit to maximize the area of influence; and
• Developing an approach to adjust parking requirements automatically without requiring a zoning by-law amendment when new transit infrastructure is introduced to the area.

Primarily, the areas that will experience an increased use of maximums, and a reduction or total elimination of minimums, will be policy areas that are located near transit facilities and higher order transit. All other areas will still see a reduction in minimums, but will not be subject to imposed maximums. Further, the City will be looking at whether there is a need to increase visitor parking requirements, and potentially adjusting the calculations for required accessible parking to maintain their current levels.

 Phase 2 will include:

• Developing language in the By-law that will create a requirement for new parking spaces to be Electric-Vehicle ready, as current requirements do not provide sufficient space to accommodate charging equipment;
• Considering developing parking supply guidelines for City-led developments; and
• Identifying other mobility infrastructure that will be required if parking requirements are reduced or removed.

Last, Phase 3 will conclude with:

• Identifying other parking policies or regulations that will need to be revised along with the proposed changes to the By-law; and
• Developing a monitoring program to measure the effectiveness of the By-law and identify areas where further parking enforcement is needed.

Timeline

As this is a timely review, City staff have been asked to report back by the end of the year with recommendations. Engagement with stakeholders will be a key part of the project and will be happening during most of the year. Public and stakeholder consultation on Phases 1 and 2 are planned to begin in April/May 2021, followed by consultation on draft conclusions in September 2021, with the Final Report and Zoning By-law Amendment going to Council in November 2021.

During this review, other parking related work such as the Toronto Green Standards review and the Expanding Housing Options in Neighbourhoods will be reviewed and aligned with the City’s findings.

We will continue to monitor and provide updates on the Parking Requirements for New Developments review as it progresses. A presentation from City staff on the review is available here.

Two weeks after an announcement that the Minister of Municipal Affairs and Housing (the “Minister”) is seeking feedback on ways to expand the Greenbelt Area (found here), on March 4, 2021, the Provincial government introduced the Supporting Broadband and Infrastructure Expansion Act, 2021 (“Bill 257”). Among other things, Bill 257 proposes to add a new subsection to the Planning Act (the “Act”) which would also expand the Minister’s power to issue ministerial zoning orders (“MZOs”). The Bill’s first reading was carried on the same day (check its status here).  

Currently, the Minister has the authority to issue MZOs, however, pursuant to the Act, the Minister’s decision to zone land must be consistent with the provincial policy statements in effect at the time of their decision, mainly the Provincial Policy Statement, 2020 (the “PPS”). The Minister’s decision must also conform with provincial plans, including the Greenbelt Plan. MZOs are often used to speed up planning approvals for critical projects, such as the approval of long-term homes or affordable housing projects.

Bill 257 proposes to exempt MZOs from the requirement that the order be consistent with the PPS. Further, the exemption is proposed to apply retroactively so that no past, present or future MZOs would have the requirement to be consistent with the PPS. The Provincial government states that this will permit the Minister to take other considerations into account when making decisions, and that these changes would ensure that the Minister has the discretion and authority to provide complete support for critical projects. The government has recently increased its use of MZOs across the Province, causing stakeholder concern that this proposed change will allow the government to fast-track approvals in provincially significant areas, and override challenges that might arise when looking to develop on sensitive lands.

For further clarity, Bill 257 expressly exempts the Greenbelt Area from this exception. An MZO issued on land within the Greenbelt Area will still have to conform with the Greenbelt Plan. This is notable as the government remains firm on its promise to keep development out of the Greenbelt, as demonstrated by its undergoing consultation to expand this area.