Municipal Affairs Act
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1 Historical Evolution ................................................................................................................. 9 Pre-Confederation .............................................................................................................................. 9 Confederation Era .............................................................................................................................. 9 Municipal Reform Era (1890-1922)............................................................................................. 9 20th Century Urbanization (to 1960) ........................................................................................ 10 Clamour for reform (1960-1994) .............................................................................................. 10 Reform – Stage II (1994 – present)............................................................................................ 10 What is a municipality? ....................................................................................................... 11 Creature of the provinces ............................................................................................................. 11 Dillon’s Rule/Express Authority Doctrine (R v Greenbaum) ..................................................... 11 Dillon’s Rule................................................................................................................................................... 11 Purpose of a municipal corporation ............................................................................... 12 Governance versus service delivery ......................................................................................... 12 Governance: Subsidiatry Principle ...................................................................................................... 12 Service Delivery ........................................................................................................................................... 12 What is the significance of being a body corporate?........................................................... 13 City of Toronto Act - History ........................................................................................................ 13 Types of Municipalities: Municipal Act, 2001 .......................................................................... 14 Upper, lower and single tier municipalities ..................................................................................... 14 Charter Cities ................................................................................................................................................ 14 Municipal Powers and By-laws ......................................................................................... 15 Bylaws – all powers must be exercised by bylaw (s 5(3)) ................................................ 15 All powers must be exercised by council (s 5(1)) ......................................................................... 15 Procedural Bylaw (s 238(2)).................................................................................................................. 15 Spheres of Jurisdiction................................................................................................................... 16 s 8(1): Broad Authority Powers.................................................................................................. 16 Not limitless – must always be exercised for a municipal purpose (Eng v Toronto) ...... 17 Authority to differentiate......................................................................................................................... 17 s 15, MA, 2001: specific power applies over a general power.................................................. 17 Specific Municipal Powers ............................................................................................................ 17 Part III of the MA, 2001............................................................................................................................. 17 General spheres of jurisdiction to be broadly interpreted and applied...................... 18 What changed? ............................................................................................................................................. 18 Broad power versus specific authority .............................................................................................. 18 Spraytech v Hudson (Town) [2001] SCC ........................................................................................... 19 Croplife Canada v Toronto (City) [2005] ONCA ............................................................................. 19 Catalyst Paper Corp v North Cowichan (2012) SCC...................................................................... 19 s 9: Natural person powers .......................................................................................................... 19 Limitations on General Powers/Conflicts with other statutes........................................ 19 Power to enter into agreements with the Crown; the province .............................................. 20 Resolutions .............................................................................................................................. 20 Bylaw versus resolution................................................................................................................ 20 Actions Against the Municipality ..................................................................................... 21 Challenging a Municipal Bylaw.................................................................................................... 21 Judicial Review Application .................................................................................................................... 21 Challenge a Bylaw by using it as a defence against provincial prosecution ....................... 21 2 Application under Rule 14.05: application to interpret a bylaw ............................................. 21 Constitutional Application....................................................................................................................... 22 Appeals ............................................................................................................................................................ 22 Application to quash bylaw – s 273(1), MA ............................................................................ 22 Municipalities must act within their prescribed authority .............................................. 23 Ottawa Electric Light Co v Ottawa (City) [1904] ONCA .............................................................. 23 s 259 power to regulate for health, safety and welfare is narrowly construed ................ 23 Last hurrah for Dillon’s Rule/prescribed approach: .......................................................... 23 Shell Canada Products Ltd v Vancouver (City) (1994) SCC – 5/4 split court..................... 23 Civil Action for Damages Against Municipality ..................................................................... 24 Moin v Blue Mountains (Town) (2000) ONCA ................................................................................ 24 Grounds to Attack a Bylaw ...................................................................................................................... 24 Bylaw Enforcement ............................................................................................................... 25 Offences (s 425-434) ...................................................................................................................... 25 Authority to create offences – s 425(1) ............................................................................................. 25 Provincial Offences Act –.......................................................................................................................... 25 Offence re: obstruction – s 426(1) ....................................................................................................... 25 Parking offences .......................................................................................................................................... 25 Authority to est. fines – s 429(1) MA .................................................................................................. 25 Building Code Act ........................................................................................................................................ 25 Planning Act .................................................................................................................................................. 26 General Enforcement Powers (ss 440-443) ........................................................................... 26 Self-Help Remedy – s 440 ........................................................................................................................ 26 Discretionary Enforcement Principle ...................................................................................... 27 Municipalities can enforce their bylaw at their discretion – Brown v Hamilton (City) [1902] HCJ ...................................................................................................................................................... 27 A municipality has no obligation to enforce its bylaws............................................................... 27 Recent decisions have narrowed the scope of the application for the discretionary enforcement principle............................................................................................................................... 27 Municipal liability will not arise from non-enforcement of a bylaw where: ...................... 28 Orders and Remedial Actions (ss 444-446) ........................................................................... 28 Authority to undertake work ................................................................................................................. 28 Administrative Monetary Penalties ..................................................................................................... 28 Imprisonment ............................................................................................................................................... 28 Authority to close a business premise................................................................................................ 28 Powers of Entry (ss 435-439) ...................................................................................................... 29 Marijuana grow op provision ................................................................................................................. 29 Powers of entry ............................................................................................................................................ 29 Drafting bylaws ...................................................................................................................... 30 Sample bylaw .................................................................................................................................... 30 Governing the municipality ............................................................................................... 31 Mayor: Head of Council – s 225 ................................................................................................... 31 Council – s 224 .................................................................................................................................. 31 Open Meeting Requirement – s 239(1) .......................................................................... 32 Closed meetings: s 239(2), MA, 2001........................................................................................ 32 Open meetings are intended to increase public confidence in the integrity of local government ................................................................................................................................................... 33 Quorum ........................................................................................................................................................... 34 3 Pecuniary interest – s 5, MCIA – see later in summary ............................................................... 34 Statutory Officers............................................................................................................................. 34 Chief Administrative Officer (CAO) ..................................................................................................... 34 Clerk – s 228, MA ......................................................................................................................................... 34 Treasurer – s 286(1) .................................................................................................................................. 34 Chief Building Official (CBO) .................................................................................................................. 35 Municipal Officers/Administration (Staff) ....................................................................................... 35 Holding Office.................................................................................................................................... 35 Terms ............................................................................................................................................................... 35 Lame Duck Rule – s 275(1) ..................................................................................................................... 35 Eligibility – s. 256 ........................................................................................................................................ 35 Committees and Boards ................................................................................................................ 36 Committees .................................................................................................................................................... 36 Delegated Authority – s 23.1........................................................................................................ 36 Local Agencies, Boards and Commissions (ABCs)................................................................ 37 Special Purpose Bodies ............................................................................................................................. 37 Local Boards .................................................................................................................................................. 37 Municipal Service Boards (more malleable/changeable than local boards) – s 196(1) 38 Municipal Service Corporations ............................................................................................................ 38 Business Improvement Areas (are local boards) – s 204 ........................................................... 39 Ombudsman .................................................................................................................................................. 39 Debt and Investment ............................................................................................................ 40 Part XII, Municipal Act, 2001 ....................................................................................................... 40 Bill 130/Municipal Statute Law Amendment Act, 2006 .................................................... 40 Licensing and Regulation .................................................................................................... 41 Application to quash (s 273) is the main way municipal actions, bylaws and resolutions may be challenged ................................................................................................... 41 Virgo v Toronto: (historical analysis of what the SCC says about municipal licensing authority) ....................................................................................................................................................... 41 History of licensing ......................................................................................................................... 41 Savings and Restructuring Act .................................................................................................... 42 First change from old scheme: a specific authority within the act to issue licenses ....... 42 Municipal Act, 2001.................................................................................................................................... 42 Pimenova v Brampton (City) 2004 strikes a bylaw for not having met the above two requirements ................................................................................................................................................ 42 Pre Bill 130 – pendulum swinging back to more provincial oversight................................. 42 Adult Entertainment Assn. of Canada v. Ottawa (City), [2007] ONCA – led, in part to the Bill 130 amendments................................................................................................................................. 42 2211266 Ontario Inc. [Gentleman’s Club] v. Brantford (City): clear reading of the scope of municipal licensing authority (how broad that authority had become)......................... 43 Post Bill 130 – municipalities lobbied for more authority - no longer about just businesses; much broader and has more utility for Ms .............................................................. 44 Essentially now it’s:.................................................................................................................................... 44 Licensing authority under s 151(1) and s 8(3) ..................................................................... 44 Qualifications on Municipal Licensing................................................................................................ 45 Province has retained authority for the Minister to outline other businesses that an M is not entitled to regulate. ........................................................................................................................ 45 Licensing Fees ................................................................................................................................... 45 4 Test: there must be a nexus between the fee charged & licensing service provided; though absolute precision is not required to uphold licensing fee (Scarborough Transat) ........................................................................................................................................................... 46 Enforcement ...................................................................................................................................... 46 Administrative Penalties .......................................................................................................................... 46 Licence Suspensions .................................................................................................................................. 46 Compliance Inspections............................................................................................................................ 46 Procedural and Substantive Fairness ...................................................................................... 46 Municipal Powers to Regulate .................................................................................................... 46 General Powers: Municipal Act, 2001 - Part II ................................................................................. 46 Specific Powers: Municipal Act, 2001 - Part III............................................................................... 47 Examples of specific powers that limit general powers from Part II (“claw back” provisions) ..................................................................................................................................................... 47 Conclusions .................................................................................................................................................... 47 Anti-bonusing provision ***Pay attention to this w/ respect to financial administration ........................................................................................................................ 48 Prohibition against municipal bonusing (s 106) ................................................................. 48 Anti-bonusing provision – s 106 ........................................................................................................... 48 Ability to make grants – s 107 ............................................................................................................... 48 Historical evolution .................................................................................................................................... 48 Presently… ..................................................................................................................................................... 49 Common law exceptions to s 106: court will look at factual matrix in context of K as a whole to determine whether there was bonusing ........................................................................ 49 Test for whether bonusing was present: Nowak v Fort Erie ..................................................... 49 Accountability and Transparency ................................................................................... 50 Procurement procedures were impugned by Madame Justice Bellamy during an inquiry, which prompted change in the legislation ............................................................ 50 How are procurement decisions made? s 270 ................................................................................ 50 What precipitated changes to the leg? ............................................................................................... 50 Judicial Inquiry by Justice Bellamy: Related Recommendations ................................... 50 Changes to MA and COTA addressing accountability and transparency, Effective January 1, 2007 ................................................................................................................................ 51 Part IV.1 MA and Part V COTA: intended to cover four broad topics .................................... 51 Differences between MA Part V.I and COTA Part V.............................................................. 53 Powers and Duties of the four accountability mechanisms ............................................. 53 Independence ............................................................................................................................................... 54 Effectiveness ................................................................................................................................................. 54 Definitions .......................................................................................................................................... 54 Accountability............................................................................................................................................... 54 Transparency ................................................................................................................................................ 55 Ombudsman .................................................................................................................................................. 55 Lobbiest Registry ........................................................................................................................................ 55 Open Meeting Investigator – s 239.2............................................................................... 55 Exceptions to open meeting rule................................................................................................ 55 Closing a meeting ........................................................................................................................................ 56 Open Meeting Investigator (since 2007) ................................................................................. 56 Bias ....................................................................................................................................................... 57 Old St. Boniface ............................................................................................................................................ 57 5 Save Richmond Farmland Society ........................................................................................................ 58 The Municipal Conflict of Interest Act (MCIA) ............................................................. 59 Generally............................................................................................................................................. 59 Legislative goal is to protect the public interest ............................................................................ 60 Purpose ............................................................................................................................................... 60 MCIA is about optics and the appearance of bias, it’s not just about outcomes................ 60 Council Members’ Oath of Office ................................................................................................ 61 Meaning of conflict of interest ............................................................................................................... 61 Direct interest ................................................................................................................................... 62 Indirect Interest (s 2) ..................................................................................................................... 62 Deemed interest (s 3)..................................................................................................................... 63 Exceptions (s 4) ................................................................................................................................ 63 s 4(j) interest in common with electors generally/community of interest ................ 63 Factors militating against a finding of “community of interest” .............................................. 64 s 4(k): Remote or insignificant interest .................................................................................. 64 Test: fact specific ......................................................................................................................................... 65 Duty of Disclosure – s 5 .................................................................................................................. 65 Disclosure must be precise ..................................................................................................................... 65 Disclosure must be made even if member if voting against their own interest................ 65 Requirements.................................................................................................................................... 66 How and when to disclose ....................................................................................................................... 66 Record of Disclosure – s 6 ............................................................................................................. 66 Quorum ............................................................................................................................................... 67 Assessment Analysis....................................................................................................................... 68 Alleged Contravention ................................................................................................................... 69 Penalties for Contravention......................................................................................................... 69 Saving Provisions (s 10) ........................................................................................................................... 69 Appeals – s 11 .................................................................................................................................... 70 Standard of Review .................................................................................................................................... 70 Consequence of Contravention ................................................................................................... 70 What can members do to demonstrate compliance and good faith....................................... 71 Is it a complete code? ..................................................................................................................... 71 Harding says yes, Mississauga Inquiry says no............................................................................... 71 Conclusions ........................................................................................................................................ 74 History and Overview of Land Use Planning.......................................................................... 76 Rights vs Regulation................................................................................................................................... 76 Land Use Regulation: Evolution in Ontario ...................................................................................... 76 The Planning Act, Land Use Approvals and the Ontario Municipal Board .................. 77 Land Use Planning Approvals Pursuant to the Planning Act..................................................... 78 Simplified Development Approvals Process (Framework) ....................................................... 78 Zoning By-laws and Zoning By-law Amendments (s.34) ........................................................... 79 Bonusing (s 37, Planning Act) ................................................................................................................ 79 Non-conforming Uses ................................................................................................................................ 79 Minor Variances (s 45, Planning Act) .................................................................................................. 80 Site Plan Control Approvals (s 41)....................................................................................................... 80 Plans of Subdivision (s 51) ...................................................................................................................... 81 Consents to Sever (s.53) ........................................................................................................................... 82 Case Study: The Revitalization of the West Don Lands ...................................................... 82 History of the West Don Lands .............................................................................................................. 82 6 The Goal: Waterfront Revitalization ................................................................................................... 83 Part 1: Official Plan Amendments ........................................................................................................ 83 Part 2: Zoning By-law Amendments ................................................................................................... 83 Part 3: Plans of Subdivision .................................................................................................................... 84 Part 4: Pan-Am Games............................................................................................................................... 84 Overview of the Ontario Heritage Act ............................................................................ 85 Heritage Designation & Protection ........................................................................................... 85 Ontario Heritage Act ....................................................................................................................... 85 Statutory mechanisms in the OHA to provide for the conservation of built heritage ................................................................................................................................................................ 86 Criteria for Evaluation: What qualifies for protection? ..................................................... 86 Design value or physical value .............................................................................................................. 86 Historical Value or Associative Value ................................................................................................. 86 Contextual Value.......................................................................................................................................... 87 2005 Legislative Changes ............................................................................................................. 87 Designation of Individual Properties (Part IV), Council Decisions regarding Permits and Appeal Rights ................................................................................................. 87 Designation of Individual Properties (Part IV OHA) ........................................................... 87 Notice requirements .................................................................................................................................. 88 Designation .................................................................................................................................................... 88 Restricted Appeal Rights .......................................................................................................................... 88 Appeal to OMB on Demolition Permit ................................................................................................ 88 Retroactivity of Designation ................................................................................................................... 89 Heritage Conservation Districts (Part V) ...................................................................... 89 Minister’s Orders ................................................................................................................... 90 Ministers Order – Stop Work ....................................................................................................... 90 Heritage Easement Agreements (ss Sections 21 & 37) ............................................. 90 Positive Covenants .......................................................................................................................... 90 So what about Site Plan Control Agreements and Subdivision Agreements? .................... 90 Building Standards By-laws for Heritage Properties................................................ 91 Municipal Inventory/Registry .................................................................................................... 91 Opportunities and Constraints ......................................................................................... 91 Conclusions ........................................................................................................................................ 92 What are DCs? ......................................................................................................................... 93 DCs are a tax on land? .................................................................................................................... 93 Development Charges Acts ............................................................................................................ 93 Previous Development Charges Act, 1989 .......................................................................................... 94 Development Charge Freeze................................................................................................................... 94 Development Charges Act, 1997 .................................................................................................. 94 Key Changes in the New Statute ........................................................................................................... 95 Procedural Requirements........................................................................................................................ 97 A new DC Bylaw is required every 5 years (and they can expire earlier than that) 97 Payment of DCs ................................................................................................................................. 97 Reserve Funds .............................................................................................................................................. 98 Challenges to Development Charges ........................................................................................ 98 7 Test on Appeal .............................................................................................................................................. 99 Conclusions ........................................................................................................................................ 99 Legislative Framework ................................................................................................................ 100 What is the purpose of the Building Code Act?........................................................... 100 Background to the BCA ................................................................................................................ 100 Modern Building Code Act (2002) ............................................................................................ 101 What is the BCA? ....................................................................................................................................... 101 The BCA and OBC establish standards for the construction and demolition of buildings .......................................................................................................................................................................... 102 Chief Building Official ............................................................................................................................. 102 Building Bylaws .............................................................................................................................. 102 Building Permits ............................................................................................................................ 103 What does “Applicable law” mean? .................................................................................................. 103 Conditional Permits ................................................................................................................................ 104 Inspection & Contravention ................................................................................................................. 104 Building Code Statute Amendment Act, 2002 ............................................................ 105 Appeals .............................................................................................................................................. 105 Enforcement .................................................................................................................................... 105 Objective Based Code ................................................................................................................... 106 Conclusions ...................................................................................................................................... 107 Finance Provisions, MA, 2001 .......................................................................................... 108 Broad powers (Sections 8-11) and Clawback provision (s 17) ..................................... 108 Council must appoint a treasurer and an auditor .................................................... 109 Treasurer.......................................................................................................................................... 109 Council must appoint a treasurer (s 286(1)) ............................................................................... 109 Auditor............................................................................................................................................... 109 Council must appoint an auditor ....................................................................................................... 109 Policy framework ................................................................................................................ 110 Other clawback provisions and provincial oversight with respect to municipal finance ............................................................................................................................................... 110 No Bonusing (s 106)...................................................................................................................... 111 Bonusing (s 37, Planning Act) ............................................................................................................. 112 Tips & Tricks with Bonusing ............................................................................................................... 112 Grants (s 107) ................................................................................................................................. 113 Municipal Affairs Act .......................................................................................................... 113 Property Assessment & Taxation................................................................................... 114 Assessment Act ............................................................................................................................... 114 Tax roll .......................................................................................................................................................... 114 Property classifications............................................................................................................... 115 Section 7, Assessment Act – general classes ................................................................................. 115 Section 8 – addresses things like farmland awaiting development or for vacant properties .................................................................................................................................................... 115 How property taxes get calculated .......................................................................................... 115 Part VIII of the Municipal Act, 2001 ................................................................................................. 115 Notice of Assessment .............................................................................................................................. 116 Tax Collection – Part X of the MA ............................................................................................. 116 8 Fees and Charges – Part 12 MA, some hold priority lein status .................................... 117 Priority lien status (ss 1(2.1), (2.2), (3)), MA ............................................................................... 118 Payments in lieu of taxes (PIL/PILTs).................................................................................... 118 Tax sales – Part XI of the MA, s 379 ......................................................................................... 118 Cancellation price – s 371 ..................................................................................................................... 119 Municipal Budgeting Process .................................................................................................... 119 MFIPPA .................................................................................................................................... 120 Two aspects to the legislation to keep in mind: ................................................................. 120 Purpose – s 1 .............................................................................................................................................. 120 Municipal Record Keeping ......................................................................................................... 120 Access to Records .......................................................................................................................... 121 Disclosure .................................................................................................................................................... 122 Request for Records ................................................................................................................................ 122 Life Cycle of MFIPPA Request .................................................................................................... 123 Exempt Records.............................................................................................................................. 123 Discretionary – s 239(2) head has authority to make determinations in accordance with the act ................................................................................................................................................. 123 Mandatory – head must protect these from the record ........................................................... 123 Collection of personal Information ......................................................................................... 123 Exceptions ................................................................................................................................................... 124 Compliance with MFIPPA ............................................................................................................ 124 9 Introduction Historical Evolution Pre-Confederation Municipalities created as a response to growing population demands; to meet local service demands; and because of the failure of the courts of Quarter Sessions to respond adequately to administrative problems. 1763: Courts of Quarter Sessions (UK) took on administrative law questions 1791: Constitutional Act establishes Upper and Lower Canada 1835: Municipal Corporations Act (UK) 1839: Lord Durham’s Report recommends Canada have Upper and municipal 1840/1841: institutions included inLower Canada vest authority in local councils to deal the Constitution with local matters 1849: “Baldwin Act” incorporated municipalities; Note: Baldwin Act initially granted council to be elected; expansive powers but it was a council to hold public meetings “laundry list” approach Confederation Era 1867: British North America Act, s 92(8) places municipalities under the responsibilities of the provinces 1872: John F Dillon writes Legislation changed significantly “Commentaries on the Law of towards end of 1800s as some Municipal Corporations. buckled under Dillon’s Rule.municipalities Incorporated into financial pressures; became more an Ontario Court of Appeal prescriptive with greater provincial ruling – Ottawa Electric Light Co v Ottawa oversight Civic boosterism, “city beautiful” 1922) movement, boards and commissions established 1922: Consolidated Municipal Act (public meeting requirements, etc.) Municipal Reform Era (1890- 10 20th Century Urbanization (to 1960) Unprecedented population growth; change from a rural to an urban society; competing demands for scarce urban space; urban sprawl. Clamour for reform (1960-1994) 1970s – OMB becomes the adversarial battleMunicipal ground for Boundary Negotiation boundary adjustments necessary Act, 1981: subsequently repealed by for amalgamations and the MA, 2001 but initially annexations negotiated annexation and amalgamation disputes in a less adversarial setting than the OMB had been Reform – Stage II (1994 – present) 1994: Alta gov passes Municipal Government Act, 1994 giving 1999: “Fewer Municipal municipalities “natural person Politicians” Act – essentially focus powers” and moving to a “spheres of shifting from local representation to jurisdiction” model (rather than a service deliverylist model enumerated jurisdiction/laundry approach); SCC decides Vancouver v Shell Products. 2001/2006: Ontario Municipal Act, 2001, initially gives natural person 1996: Savingspowers and Restructuring and spheresAct of jurisdiction downloading of onto authority (s (s responsibility 11(3)); gave broader municipal governments; 8(1)) but also subsequent amalgamationslimitations and procedural 1996: Better Local Government Act – requirements allowed municipalities greater freedom to borrow and invest 2005: Croplife Canada v Toronto (City) ONCA – purpose of MA, 2001 was to give municipalities the tools they needed to govern Desire for efficiency results in amalgamations and regional gov’ts 11 What is a municipality? Creature of the provinces Dillon’s Rule/Express Authority Doctrine (R v Greenbaum) “Municipalities are entirely creatures of provincial statutes. Accordingly, they can only exercise those powers which are explicitly conferred upon them by a provincial statute.” - R. v. Greenbaum (1993) (S.C.C.), per Iacobucci J. [at para. 20] Municipalities have traditionally been termed “creatures of provincial statute” which, as Justice Borins noted in East York (Borough) v. Ontario (1997), means that they: - lack constitutional status - are creatures of the Legislature; exist only if provincial legislation so provides - have no independent autonomy; powers subject to abolition or repeal by the province - may exercise only those powers conferred by the Province Dillon’s Rule A municipal corporation possesses and can exercise the following powers and no others, first, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any fair reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied. - Ottawa Electric Light Company v Ottawa (City) Exception: a municipality is entitled, with respect to the taxes they are required to levy, to inquire as to their legal validity - Brandon (City) v Manitoba (Municipal Commissioner) [1931] Man CA Constitution Act, s 92(8) – municipalities fall under the purview of the province “Even though municipalities behave like other levels of government since they also include a governance structure comprised of elected officials with the ability to levy taxes, they are just one provincial responsibility among a list of other responsibilities assigned to provincial governments under the Canadian Constitution” o Louis Silva, “Escaping from the Straight Jacket that Baffled Houdini: An Analysis of the Myths and Realities of Empowering Toronto through a City Charter” (July 2005) 12 Municipal Act, 2001 s 2(1): Created by the Province and purpose section – providing good government Municipalities are created by the Province of Ontario to be responsible & accountable governments with respect to matters within their jurisdiction and each municipality is given powers and duties under this Act and many other Acts for the purpose of providing good government with respect to those matters. Municipal Act, 2001 s 1(1): geographic area whose inhabitants are incorporated a geographic area whose inhabitants are incorporated Purpose of a municipal corporation Governance versus service delivery Governance: Subsidiatry Principle “Lawmaking and implementation are often best achieved at a level of government that is not only most effective, but also closest to the citizens affected and thus most responsive to their needs …” Spraytech v Hudson (Town) [2001] SCC This is a European principle that has been adopted into Canadian jurisprudence. Service Delivery Rob Ford would contend that is all it is, as Harris did in the 90s o 1996: Savings and Restructuring Act, 1996 amalgamations downloading of responsibilities onto municipalities o 1999: “Fewer Municipal Politicians” Act “Municipalities exercise in relation to the ratepayer the coercive power of the state. The financial obligations, contractual or otherwise, that municipalities incur are discharged on the backs of the ratepayers. The little control the ratepayers have consists in the fact that the powers of the municipality are to be exercised by a council elected by the ratepayers.” o Moin v Blue Mountains (Town) (2000) ONCA “The subject-matter of municipal authority is conceived as being less inclined to raise ideological differences – there is no Liberal, Conservative or New Democratic way to collect garbage.” o Canadian Municipal & Planning Law, 2nd Edition, Makuch, Craik & Leisk 13 Municipalities in Canada What is the significance of being a body corporate? Municipality has been defined as a “body corporate constituted by the incorporation of the inhabitants residing within the defined area upon which the legislature has…conferred corporate status, rights and liabilities….”: - St. Stephen (Town) v. Charlotte (County) (1984), 32 N.B.R. 292 (N.B. S.C.) “function of a municipality, at law, has been very similar to a business corporation” - St. Paul (County) No. 19 v. Belland (2006), 20 M.P.L.R. (4th) 1 (Alta. C.A.) A corporation can only act through its agents; a municipality’s agents are the council. - Canadian Pacific Railway v Outlook (Town) [1924] Sask KB s 1(2): reference to a municipality is reference to a geographical area or to the municipal corporation s 4: inhabitants are incorporated as a body corporate As a business corporation, a municipality has: Council = Board of Directors Mayor = Chair of the Board/CEO Bylaws = minutes and resolutions City of Toronto Act - History June 22, 2004: Minister of Municipal Affairs and Housing John Garretsen states, o “At the end of the day, I want to see a Municipal Act that is more permissive in tone. At the end of the day, I will ask myself ‘what is the provincial interest in regulating this aspect of municipal jurisdiction?’ If there is no provincial interest being served, we will stop regulating it” Joint task force created b/w the Province of Ontario and the City of Toronto to review the City of Toronto Act. Idea was to consolidate disparate private statutes and the Act and replace them w/ a new City of Toronto Charter commensurate w/ its special status of being huge. New taxation powers were granted in Part X Dec 14, 2005, Minister Garretsen introduced Bill 53 (Stronger City of Toronto for a Stronger Ontario Act, 2005) Three days later Bill 130 (Municipal Statute Law Amendment Act, 2006) for all municipalities was introduced Essentially provided all municipalities in Ontario with the authorities and powers given to Toronto under the City of Toronto Act Did not give the power of direct taxation (which was given to Toronto) 14 Repealed s 130 and put health, safety and well-being in with the general part II powers (ss 10(2)6 and 11(2)6) Municipal Amendment Act, 2005 (Bill 92) formalized an MOU b/w the Province of Ontario and the Association of Municipalities of Ontario (AMO) o Strengthened relationship by providing a protocol for consultation on matters o s 3(1), MA, 2001: requires the provincial government to consult with municipalities in accordance with memorandum of understanding (MOU) entered into between the province and the Association of Municipalities of Ontario (AMO) Types of Municipalities: Municipal Act, 2001 Upper, lower and single tier municipalities Creates three types of municipalities: 1. Lower tier municipalities (replacing cities, towns, villages, etc.) – Mississauga, Pickering, etc. 2. Upper tier municipalities (replacing regional governments, districts, etc.) – County of Simcoe, Region of Peel, etc. *Note: regions have no political status but counties do 3. Single tier municipalities – Toronto 4. Separated municipalities – Barrie, Stratford, Kingston, London Conflict resolution in s 7 MA says that the upper tier trumps. ss 171-186, MA, 2001: Restructuring provisions for annexations and amalgamations. Part 5 of the MA lays out what must be done if the lower tier wants to take responsibility from the upper. Ss 189, 191 of the MA. Charter Cities unlike most other provinces, larger urban municipalities in Ontario have never had separate charters that exempted them from the general applicability of the Municipal Act, 2001 a charter city is a city that is governed by a separate piece of provincial legislation which bestows upon the city certain powers and responsibilities that are not given to other municipalities in the province charter cities are not subjected to the apparatus of a general municipal statute • Example: o Vancouver, British Columbia: Vancouver was incorporated in 1886 through an exclusive statutory charter to recognize the terminal area; Vancouver was recognized differently from other municipalities due to its unique position in Canadian confederation 15 Municipal Powers and By-laws Bylaws – all powers must be exercised by bylaw (s 5(3)) s 5(3), MA, 2001: powers shall be exercised by bylaw unless a municipality is specifically authorized to do so otherwise s 249, MA, 2001: bylaws must be (a) under seal and (b) signed by the clerk and the head of council or presiding officer at the meeting at which the bylaw was passed s 247, MA, 2001: must be in French or English All powers must be exercised by council (s 5(1)) • “The powers of a municipality shall be exercised by its council”: s. 5(1) of Municipal Act, 2001 • a municipality must ultimately act through its council and by by-law (or as otherwise permitted): s. 5(3) • Council members hold 4 year terms (s 6, Municipal Elections Act, 1996) • Eligibility (s 256): every person is qualified to be elected or hold office who is entitled to be an elector and who is not otherwise disqualified from holding office • Elector Eligibility: s. 17 of Municipal Elections Act, 1996 • resident or tenant in municipality (or spouse of) • Canadian citizen • at least 18 years old • is not otherwise disqualified from voting • Ineligibility: s. 258(1) of Municipal Act, 2001 • municipal employee (including non-employees) • judge of any court • MP or MPP • public servant (w/in meaning of Public Service Act, 2006) • Disqualification: s. 258(2) of Municipal Act, 2001 • ceases to be a Canadian citizen • is not a resident or tenant of land (or spouse of owner or tenant) in municipality • is prohibited from voting in an election • contravenes Municipal Conflict of Interest Act • Delegate authority (s 23): certain prescribed things that cannot be delegated. But authority to pass bylaws can even be delegated by council to x committee, etc. So long as council authorizes it and it’s not precluded, you can do it. Procedural Bylaw (s 238(2)) s 238(2), MA, 2001: Every municipality and local board shall pass a procedure bylaw for governing the calling, place and procedure of meetings This sets out things like when a simple majority versus a 2/3 majority would be required. Must provide for public notice of meetings including closed meetings 16 Spheres of Jurisdiction s 10: Broad authority for single tier municipalities s 11(2): Broad authority for lower and upper tier Ms s 11(3): Broad, permissive powers to pass bylaws respecting: 1) highways, including parking and traffic (Mattamy (Rouge) Ltd v Toronto (City) [2003] Ont Div Ct: held that the subdivision approval and provisions of the Planning Act could not override the scheme set out in s 31 MA, 2001). 2) transportation systems other than highways 3) waste management 4) public utilities 5) culture, parks, recreation and heritage (*exception to the geographical limit from s 19 – does not apply where a municipality uses its broad authority powers) 6) drainage and flood control, except storm sewers 7) structures, including fences and signs 8) parking except on highways 9) animals 10) economic development services (*s 106(1) provides for a prohibition against bonusing whereby a municipality is precluded from providing assistance to manufacturing businesses or commercial enterprises 11) business licensing 12) ss 115-134 – pertain to various provisions relating to health, safety and nuisance (s 128) Table in s 11 assigns jurisdiction over matters falling w/in the sphere to the upper or lower tier or both. s 11(8), MA, 2001: municipality is prohibited from regulating non-municipal systems under 6 spheres of jurisdiction s 11(7), MA, 2001: municipality is prohibited from using a sphere of jurisdiction to regulate activities properly of another tier s 11(4), MA, 2001: municipality cannot pass a bylaw under spheres of jurisdiction or broad permissive powers if the other tier has the exclusive power to pass the bylaw under spheres of jurisdiction s 13, MA, 2001: upper-tier bylaw prevails over lower-tier bylaw ss 188-193: provide for a process for transferring authority b/w tiers s 8(1): Broad Authority Powers Bill 130 augmented general municipal powers by providing broad authority powers in ss. 10 and 11 of the Municipal Act, 2001 Municipalities can provide “any service or thing that the municipality considers necessary or desirable for the public” s 8(1), MA, 2001: powers of a municipality under this act or any other act shall be interpreted broadly so as to confer broad authority s 8(2), MA, 2001: in the event of ambiguity, ambiguity shall be resolved to include rather than exclude powers the municipality had on the day before the MA, 2001 came into force 17 s 8(3), MA, 2001: A by-law respecting a matter may: o regulate or prohibit respecting the matter o require persons to do things respecting the matter o provide for a system of licences respecting the matter Not limitless – must always be exercised for a municipal purpose (Eng v Toronto) Where there is no specific authority to do something, it shall be interpreted as if valid under broad authority. Authority to differentiate s 8(4), MA, 2001: A bylaw may be general or specific in its application and may differentiate in any way and on any basis a municipality considers appropriate *Note: this is what was at issue in Shell v Vancouver and Catalyst Paper Corp. s 15, MA, 2001: specific power applies over a general power bylaws passed under the broad permissive powers and spheres of jurisdiction (ss 9, 10, or 11) and also under a specific provision are subject to procedural requirements and are subject to limitations on the power contained in the specific provision. There are roughly 130 provisions that are called specific powers (some are restrictions) found in Part III of the act. s 15(1.1) unless the context otherwise requires, the fact that a specific provision is silent on whether or not a municipality has a particular power shall not be interpreted as a limit on the power contained in the specific provision How a municipality would move through the analysis: s 15(1): if a municipality has the power to pass a bylaw under ss 9, 10, or 11, such power is subject to any procedural requirements imposed on the power by Part III 1) Consider whether general authority exists to pass a bylaw or resolution pursuant to the broad power in ss 9, 10 or 11. 2) Provided that such authority exists, the municipality will need to determine whether the power has been limited or has been removed by any of the provisions in Part II. 3) Next, the municipality will have to examine the specific powers granted in Part III (and subsequent parts) to ascertain the precise extent of and the procedural requirements pertaining to the exercise of the power in question. Consider whether regulations have been promulgated and the extent to which those regs will have a permissive or restrictive impact. Specific Municipal Powers Part III of the MA, 2001 Sets out specific municipal powers not covered by the broad authority or spheres of jurisdiction powers. Fall into two types: o powers associated with the general power in ways that either supplement or limit the broad grants of authority 18 o powers not associated with the general powers General spheres of jurisdiction to be broadly interpreted and applied What changed? St Paul County (No 19) v Belland (2006) AB CA 1. Changes to corporate law – modern corporations generally have all of the powers of a natural person 2. In the 19th C, there was a preoccupation w/ the protection of property rights. Now it is recognized that property rights don’t always prevail over the interests of the community. 3. Administrative law has changed – municipal bylaws used to be struck by the courts on the basis of “reasonableness” whereas now the court is instructed by the SCC to show deference to administrative decision makers The S.C.C. and provincial appeal courts issued a remarkable number of judgments applying a broad and generous approach to the interpretation of municipal powers Guignard v. St. Hyacinthe (Ville) Vann Niagara v. Oakville (Town) Goldlist Properties v. Toronto (City) Equity Waste Mgmt. v. Halton Hills (Town) Broad power versus specific authority United Taxi Drivers’ Fellowship of Southern Alberta v Calgary (City) [2004] SCC Facts: new Municipal Government Act removed the explicit and specific authority and instead gave municipalities the general power to enact bylaws respecting transport and transportation services and businesses. City put a freeze on new licenses. Held: unanimous supreme court held that the city was validly authorized under the broad power to enact the bylaw. Marks a movement away from the prescriptive approach to municipal powers and towards a broad and purposive approach to municipal powers reflects the conception of municipal authority contemplated by its enacting legislation. Eng v Toronto (City) (2012) ONSC – Shark fin ban Issue: Does the bylaw prohibiting the sale, possession or consumption of shark fin have a valid municipal purpose? Fact: City of Toronto Legal Services Dept had given an opinion that the bylaw was ultra vires. Held: the bylaw does not have a municipal purpose under the economic, social and environmental well-being broad powers or under the specific power over animals. “The concern must relate to problems that engage the community as a local entity, not a member of the broader polity.” (Spraytech) Note: the shark fin ban went beyond the geographic limitation in s 19, MA, 2001. 19 Spraytech v Hudson (Town) [2001] SCC Held: A broad approach to such a power was necessary in order for local government to properly respond to unforeseen or changing circumstances. Subsidiatry Principle: “Lawmaking and implementation are often best achieved at a level of government that is not only most effective, but also closest to the citizens affected and thus most responsive to their needs …” Croplife Canada v Toronto (City) [2005] ONCA Facts: cosmetic pesticide ban enacted under s 130 – health, safety and well-being. At the time it was in the specific powers section of the Municipal Act, 2001 (*it is now repealed and under broad powers). Former s 9 provided that the specific powers were to broadly interpreted and applied. Held: Absent an express direction to the contrary, all municipal powers are to be interpreted broadly and generously w/in their context and statutory limits. NOTE: Bill 130 subsequently repealed s 130 and placed it in Part II General Power – ss 10(2) 6 and 11(2)(6) Catalyst Paper Corp v North Cowichan (2012) SCC Facts: paper corp has been operating there for years. Suddenly people started moving there (it’s north of Vancouver). Municipality didn’t want to increase residential property taxes out of concern for its long-term fixed income residents. Municipality increased its tax rate on Catalysts’ land. Held: The only way for the municipality to maintain proper living conditions for its residents was to charge more to corporations. a court’s power to review by-laws for unreasonableness is narrow; a wide deference is owed to municipal councils a municipality is permitted to consider a wide array of factors in passing its bylaws, including social, economic and political matters that are relevant to the electorate a municipality is not required to provide formal reasons for or to explain the rationale or basis of a by-law. s 9: Natural person powers s 9, MA, 2001: Powers of a natural person enables the municipality to hire staff, enter into agreements, acquire land and equipment w/o the need for specific legislative authority *Note: you still need a municipal purpose for exercising the natural person powers. Limitations on General Powers/Conflicts with other statutes s 14, MA, 2001: a bylaw is w/o effect to the extent of conflict w/ fed or prov statutes or regulations o conflict means “frustrating the purpose” of the superior legislation (Benson & Hedges) 20 s 18, MA, 2001: no monopolies may be granted s 19, MA, 2001: geographic limitation – limited to municipal boundaries s 451.1, MA, 2001: provincial government can limit the powers of a municipality by regulation Power to enter into agreements with the Crown; the province o s 3.1, MA, 2001: Municipality has the authority to enter into agreements w/ the Crown With respect to matters w/in the municipality’s jurisdiction s 22(1), MA, 2001: Municipality may provide a system it would not otherwise have power to provide if it does so in accordance w/ the Province under an est. program o (2): may provide the system outside of its boundaries o (3): may provide a system outside of its boundaries that it otherwise has authority to provide inside its boundaries Resolutions a resolution is an informal document that signifies the intent of a municipal council but may not necessarily be binding on it a resolution, unlike a by-law, does not have to be in writing there are over 30 specific instances in the Municipal Act, 2001 where a council does not have to enact a formal by-law in order to authorize a particular action in addition, the case law recognizes a number of exceptions to the general rules (to authorize administrative actions, for minor matters, etc.) Bylaw versus resolution Bylaw A municipal version of a (federal or provincial) statute or regulation – generally enacted by majority vote Must be signed by appropriate officers, affixed with seal of corporation and may have other special requirements Used for all matters – intended to be of a permanent nature and where action taken will affect public All legislative functions must be authorized by bylaw Creates municipal rules which are enforceable in a court of law Resolution Expression of council’s intent submitted in the form of a motion and adopted by majority vote No special requirements concerning its enactment by council Used for less permanent matters which are short term and routine relating to internal management or to record council views on a matter Administrative functions are usually handled by resolution Failure to comply w/ a resolution cannot be the basis for prosecution 21 Actions Against the Municipality Challenging a Municipal Bylaw • • • municipal by-law may be challenged by: a) application to quash b) judicial review application c) provincial offences court trial d) application under Rule 14.05(d) e) constitutional application f) appeal person challenging validity of by-law must prove invalidity; presumption of validity municipal by-laws attract a strong presumption of validity: Eng v. Toronto (City) Judicial Review Application s. 6(1), Judicial Review Procedure Act: an application to Divisional Court to have a municipal by-law declared invalid s. 6(2), Judicial Review Procedure Act: court may grant relief in the nature of mandamus, prohibition, certiorari court may also grant an injunction in relation to the exercise, refusal to exercise or proposed exercise of a statutory power s 1, JRPA – definitions “statutory power” – power or right conferred by statute to make any regulation, rule or by-law “statutory power of decision” means a power or right conferred by or under a statute to make a decision deciding or prescribing, o (a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or o (b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not, and includes the powers of an inferior court. Challenge a Bylaw by using it as a defence against provincial prosecution s 2(1), Provincial Offences Act: The purpose of this Act is to replace the summary conviction procedure for the prosecution of provincial offences … with a procedure that reflects the distinction between provincial offences and criminal offences. • an accused charged with an offence under the Provincial Offences Act may challenge the legal validity of a by-law (similar to an application to quash) • challenge is made by way of preliminary submission or motion • a defence to a prosecution of a charge can allege illegality of municipal by-law Application under Rule 14.05: application to interpret a bylaw Rules of Civil Procedure, Rule 14.05(3)(d): (3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is, 22 ... (d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution; *Note: any determination/declaration works only for the applicant. Bylaw can still be used against others. Constitutional Application Rules of Civil Procedure, Rule 14.05(g.1): allows a proceeding by application where the relief claimed is for a remedy under the Canadian Charter of Rights and Freedoms a person may rely on s. 24 of the Canadian Charter of Rights and Freedoms for a remedy: Anyone whose rights or freedoms as guaranteed by this Charter have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy, as the court considers appropriate and just in the circumstances Appeals Direct statutory appeals: ward boundaries - s. 222 of Municipal Act, 2001 various land use and planning approvals under the Planning Act land compensation matters under Expropriation Act development charges by-law appeals under the Development Charges Act, 1997 heritage designations and approvals under the Ontario Heritage Act Under Bill 130 a lot of direct statutory appeals were done away with. Sometimes the court will hold that there is concurrent jurisdiction (so that you don’t have to go to the administrative board or tribunal first). Application to quash bylaw – s 273(1), MA s 273(1), MA, 2001: any person may apply to the Superior Court to quash a bylaw in whole or in part for illegality o s 273(2): “bylaw” includes order or resolution s. 273(5): that application “shall be made within one year of the enactment of a by-law” s 272, MA, 2001: cannot quash a bylaw that was passed in good faith under the Act on the basis that it was unreasonable Catalyst Paper Corp court held: a court’s power to review by-laws for unreasonableness is narrow; a wide deference is owed to municipal councils 23 a municipality is permitted to consider a wide array of factors in passing its bylaws, including social, economic and political matters that are relevant to the electorate a municipality is not required to provide formal reasons for or to explain the rationale or basis of a by-law. Municipalities must act within their prescribed authority Ottawa Electric Light Co v Ottawa (City) [1904] ONCA Facts: Ottawa city passes a number of bylaws after K’ing to purchase the assets of the OELC. P’s allege that city is ultra vires of its power in the acquisition b/c city is not going to use to assets itself to generate and distribute power but is instead selling the assets to the Ottawa and Hull Power and Manufacturing Company, who would in turn supply the municipality with power. Held: Appeal allowed, bylaw enabling municipality to sell the utility quashed. Municipalities are entitled to be producers not traffickers of electricity. Lower court: Municipalities are entitled under provincial legislation to produce, manufacture, use and supply to others electricity and to acquire land and equipment to do so. The bylaw merely provides for the issuing of the debentures for the city to fund the acquisition of the P property as is intra vires of the municipality’s power. s 259 power to regulate for health, safety and welfare is narrowly construed Re Morrison and The City of Kingston [1938] ONCA Facts: Kingston set up a license fee for gambling machines to be approved by the city clerk. Municipal Act, RSO 1927 s 259 empowers municipalities to make laws “for the health, safety, morality, and welfare of the inhabitants of the municipality”. Held: “Health, safety and welfare provision “cannot be taken to confer unlimited and unrestrained power” onto municipal councils. Bylaw quashed since it exceeded the powers conferred by Municipal Act, RSO 1927. Council did not have the power to license, in effect, a common gaming house as defined by s 226 CCC. Last hurrah for Dillon’s Rule/prescribed approach: Shell Canada Products Ltd v Vancouver (City) (1994) SCC – 5/4 split court Facts: Vancouver passed a resolution that the City would not do business with Shell until it completely withdraws from S. Africa. Council may provide for “the good rule and government of the city” (s 189, Vancouver Charter). Held: Appeal allowed. Majority: Last hurrah for Dillon’s Rule/traditional prescriptive approach (i.e. where is the M’s authority to do this?), contending that council had no express or implied statutory authority to discriminate. 24 Dissent (McLachlin): Resolutions are intra vires – can clearly be defended under the City’s power to engage in commercial and business activities. Courts must respect the responsibility elected municipalities have to their constituents and be careful of substituting their own opinion for what’s best (emphasizes the need for deference). Civil Action for Damages Against Municipality o Municipality, as a corporation may be sued for failure to carry out, or negligence in the conduct of, its statutory duties. o In some cases, liability has been statutorily limited (e.g. s 44(9) limits potential municipal liability for personal injury caused by snow or ice on a sidewalk to cases of gross negligence). o Liability has also been limited by the courts in some cases. Moin v Blue Mountains (Town) (2000) ONCA Facts: Appeal by the town from a judgment for Moin for negligent misrepresentation. Council indicated it would approve Moin’s severance plan if Moin agreed to build an interior road to service the land and provided a water management plan. The Reeve said at a council meeting there would be a road that summer (indicating city undertaking to improve Blind Line). Other council members said nothing. Blind Line was not improved for two years. Trial judge held: Silence indicated council members agreed with the Reeve; Reeve’s representation is that of the council. Finding for Moin. Held: Council must have known Moin was relying on the Reeve’s representations to his detriment. Note: Moin proves the rule by being an exception. Normally a mayor cannot bind council but in this case, that is what happens Grounds to Attack a Bylaw 1) A by-law shall not be enacted without enabling legislation. 2) A by-law shall not contravene the Constitution Act, 1867. 3) A by-law shall not contravene the Charter. 4) A by-law shall not be enacted in violation of the principles of natural justice and procedural fairness. 5) A by-law shall not conflict with superior legislation. 6) A by-law shall not be enacted in bad faith. 7) A by-law shall not be vague or uncertain. 8) A by-law shall not discriminate without authority to do so. s 8(4), MA, 2001 gives municipalities the authority to differentiate 9) A by-law shall not delegate legislative power without authority. 10) A by-law shall not prohibit absolutely when only regulation is authorized. 25 Bylaw Enforcement Part XIV was repealed in its entirety and replaced by s 184 of the Municipal Statute Law Amendment Act, 2006, with new enforcement provisions to parallel the power in Part XV of the City of Toronto Act, 2006. s 440, MA, 2001: municipality, local board or ratepayer can ask the courts to restrain bylaw contraventions Offences (s 425-434) Authority to create offences – s 425(1) Bylaw contravention can be an “offence” w/in the Provincial Offences Act Provincial Offences Act – Part X: AGREEMENTS WITH MUNICIPALITIES CONCERNING ADMINISTRATIVE FUNCTIONS AND PROSECUTIONS s 425(3): A by-law under this section may provide that a director or officer of a corporation who knowingly concurs in the contravention of a by-law by the corporation is guilty of an offence Offence re: obstruction – s 426(1) No person shall hinder or obstruct, or attempt to hinder or obstruct, any person who is exercising a power or performing a duty under this Act or under a by-law passed under this Act Parking offences s 427: a bylaw that est a disabled parking system must specify that every person who contravenes is guilty of an offence not less than $300 s 428: special rule w/ respect to imposition of a fine for a parking offence – it’s an absolute liability offence Authority to est. fines – s 429(1) MA Basic fine range: 500-100,000 rules for continuing offences & multiple offences “special fines”: in the amount of income or profit earned as a result of contravention (up to $100,000) s 429(2): sets out min/max fine per day s 429(4), MA, 2001: municipality is prohibited from est fines for an offence for which specific fines are set out in legislation s 431: additional order to discontinue or remedy if person is convicted s 432, MA, 2001: municipality may provide a procedure for voluntary payment of penalties out of court for things like parking Building Code Act s 36(1): A person is guilty of an offence if the person, (a) knowingly furnishes false information in any application under this Act, in any certificate required to be issued or in any statement or return required to be furnished under this Act or the regulations; 26 (b) fails to comply with an order, direction or other requirement made under this Act; or (c) contravenes this Act, the regulations or a by-law passed under section 7 Restraining Order s 38(1) Where it appears to a chief building official that a person does not comply with this Act, the regulations or an order made under this Act, despite the imposition of any penalty in respect of the non-compliance and in addition to any other rights he or she may have, the chief building official may apply to the Superior Court of Justice for an order directing that person to comply with the provision. Suspension of a license s 38.1(1) If a person is in default of payment of a fine imposed upon conviction for an offence under this Act or the regulations, on the application of a prescribed person, an order may be made under subsection 69 (2) of the Provincial Offences Act directing that one or more of the licences of the person who is in default be suspended and no licence be issued to that person until the fine is paid. Planning Act s 67(1): Every person who contravenes section 41, section 46, subsection 49 (4) or section 52 or who contravenes a by-law passed under section 34 or 38 or an order made under section 47 and, if the person is a corporation, every director or officer of the corporation who knowingly concurs in the contravention, is guilty of an offence and on conviction is liable, (a) on a first conviction to a fine of not more than $25,000; and (b) on a subsequent conviction to a fine of not more than $10,000 for each day or part thereof upon which the contravention has continued after the day on which the person was first convicted. General Enforcement Powers (ss 440-443) Self-Help Remedy – s 440 Municipal taxpayers are entitled to enforce permissive bylaws at their discretion s. 440, MA, 2001: If any by-law of a municipality or by-law of a local board of a municipality under this or any other Act is contravened, in addition to any other remedy and to any penalty imposed by the by-law, the contravention may be restrained by application at the instance of a taxpayer or the municipality or local board. o Example: A condo was erected in Toronto’s entertainment district where a number of bar owners were violating the noise bylaws. When the City refused to enforce the bylaw, the developer went to ONSC for relief and the court granted an order to enforce the bylaw against the bar owners (Note: order was against the bar owners, not the municipality). “[w]ithout s. 440, a taxpayer would be at the mercy of a municipality that refuses to enforce a by-law.” • Suprun v. Bryla (2007) (Ont. S.C.J.) 27 “s. 440 of the Municipal Act provides a remedy to an aggrieved taxpayer where a municipality fails to act” • Sunnybrae Springbrook Farms Inc. v. Trent Hills (Municipality) (2012) (Ont. S.C.J.) Discretionary Enforcement Principle Municipalities can enforce their bylaw at their discretion – Brown v Hamilton (City) [1902] HCJ Other than the procedural bylaw, or the policies w/ respect to notice, hiring of staff and procurement policies, there are no mandatory bylaws. Where the municipality passes a bylaw, it has complete discretion over whether it enforces the bylaw. a rule of general application applies to permissive (as opposed to mandatory) by-laws municipalities have a broad discretion with respect to enforcement of by-laws o against whom, and o how in general, no private duty of care to individual residents/taxpayers A municipality has no obligation to enforce its bylaws Toronto (City) v Polai [1970] ONCA Facts: City had a list of zoning bylaw offenders against whom no prosecution should be brought. City had brought an action pursuant to s 486, MA for an injunction restraining the R from using a building for a multiple family dwelling house. Issue: Did the City act inequitably by pursuing an action against this R and not against those on the list? Held: The city has discretion in carrying out the bylaw and the Court has no power to directly control the exercise of that discretion Recent decisions have narrowed the scope of the application for the discretionary enforcement principle Oosthoek v Thunder Bay (City) [1996] ONCA Facts: Paving new roads and installing rain water leaders and weeping tiles to accommodate new development caused a backup in sanitary and storm sewers. City was aware of the issue and failed to remedy (despite two studies and reports recommending remedial action was necessary). In 1985 City passed a bylaw directing disconnection and prohibiting further connection of rainwater leaders. Held: The City has the right not to enforce its bylaws, however, unless that decision is made at the policy level, its failure to do so may give rise to a claim for negligence. There was no evidence that a considered policy decision not to enforce the bylaw was made. City found liable in negligence for its failure to enforce the bylaw. 28 Note: Thunder Bay tried to argue that in Kamloops the bylaw imposed a mandatory duty on the inspector to enforce whereas their bylaw simply gives the inspector the power to act. Court held that the distinction does not affect the general principle because in Anns the inspector had only a power to act (not an obligation to enforce). Municipal liability will not arise from non-enforcement of a bylaw where: a permissive by-law is discretionary in terms of enforcement & no duty of care is established, or a permissive by-law is discretionary in terms of enforcement and a duty of care is established, but the municipality’s decision to not enforce was made reasonably and in good faith Orders and Remedial Actions (ss 444-446) s 441: a municipality may authorize the treasurer or his agent to provide written notice to a person against whom a fine has been imposed is the fine remains unpaid under s 66 of the Provincial Offences Act s 444, MA, 2001: order to discontinue contravening activity o *Note: a municipality need not establish irreparable harm for the injunction to be granted Authority to undertake work ss 445-446, MA, 2001: municipality may make an order requiring certain persons to discontinue bylaw contravention, to undertake work to correct a contravention, and the municipality can carry out work at the person’s expense if the person is in default of a work order Planning Act (s 41(11), (12), or (13)) allows a site plan agreement to be enforced under s 446. o E.g. A developer agrees to make an enclosed outdoor garbage disposal unit. If it isn’t done, the municipality can go in and make it and charge the developer. Administrative Monetary Penalties Cannot be punitive cannot not exceed the amount reasonably required to promote compliance currently only available for parking by-laws under s. 102.1 of Municipal Act, 2001 cannot primarily be for the purpose of revenue generation Imprisonment s 430: up to one year, if contravention of business licence by-law dealing with adult entertainment establishment – failure to comply is contempt Authority to close a business premise s 447, MA, 2001: municipality can ask the courts to close a premises to any use if a business is operating w/o a license 29 s 447.1, MA, 2001: municipality may close a premises if activities are causing or contributing to a public nuisance Powers of Entry (ss 435-439) Marijuana grow op provision s 447.2, MA, 2001: municipality must ensure that an inspection is conducted of a building that contains a marijuana grow op if notified by a police force. The investigator must take actions to protect the public and make the building safe Powers of entry ss 435-439, MA, 2001: powers of entry for the purpose of inspection, search and seizure s 436: municipality has the administrative power to pass bylaws setting out authority to enter property o entry on land o for inspection to determine compliance with by-laws and orders o at any reasonable time s. 435: conditions governing powers of entry o pursuant to: an order to inspect land (s 438) and a search warrant (s 439) s. 437: restrictions on entry into dwellings o Entry into a dwelling is prohibited without a search warrant o In the case of “unsafe” conditions, a building inspector may go in S 439: allows a provincial judge or JoP to issue a warrant authorizing entry to a building, receptacle or place for evidence specified in the warrant. Search warrant is available w/ respect to contraventions of bylaws Action by citizens Ratepayer must appear before a JoP or a provincial judge and “lay all information”, setting out the details of the offence. Action by local police Local police are responsible for bylaw enforcement under the Police Services Act. Where there is no local police force, council may K with the OPP. Action by Municipal enforcement personnel Municipalities may hire bylaw enforcement officers and decide whether they will simply respond to complaints or will actively look for infractions. Ss 15(1) and 15(2), Police Services Act: (1) municipality may appoint municipal law enforcement officers to enforce municipal by-laws and (2) municipal law enforcement officers are peace officers for the purpose of enforcing municipal by-laws *Note: depending upon specific statutory authority, other persons may have enforcement powers and authorities (eg. CBOs, inspectors and property standards officers under Building Code Act, 1992) 30 Drafting bylaws Sample bylaw Name of the corp/mun (often above this you have the Coat of Arms) Bylaw number Short title of bylaw Then the long form title of the bylaw Brief description of what the bylaw is purporting to do. Enabling Legislation/Preamble/Recitals (the “whereas” clauses. Why have this? It identifies the statutory authority for the bylaw. Some would say it acts as a “purpose” clause but Prof doesn’t really think of it that way). Enactment Clause: Municipality enacts… 1. Definitions (these are usually the last thing that are put together). 2. Regulation Provision: “No person shall…” 3. Offence provision: “A person who contravenes is guilty of an offence” 4. Penalty: says how the contravener will be liable (*s 429: authority to est fines) 5. Interpretation: if a court deems any part invalid/unenforceable, the rest stands 6. Schedules 7. Repeal Provision: repeals old bylaw that is being replaced 8. Date of enactment: (upon the day of passage or in some cases, where some other body has to approve it, when that body approves it). Signatory lines: one for head of council/the presiding officer at the meeting and one for acting clerk. 31 Mayor, Council and Boards Governing the municipality Mayor: Head of Council – s 225 s 225, MA, 2001: role of the head of council a) to act as CEO b) to preside over council meetings c) to provide leadership; (c.1 to provide info and recommendations to council w/ respect to role of council) d) to represent the municipality at official functions e) to carry out the duties of the head of council s 226.1, MA, 2001: head of council as CEO a) uphold and promote the purposes of the municipality b) promote public involvement in the municipality’s activities c) act as the representative of the municipality both w/in the municipality and nationally/internationally d) participate in and foster activities that enhance the economic, social and environmental well-being of the municipality and its residents Note: Rob Ford was stripped of the authority conferred on him by council, not of his statutory authority. Officers owe a fiduciary duty to the municipality: Ottawa (City) v Letourneau (2005) ONSC Facts: when Napean was amalgamated with Ottawa, L, the CAO of Napean negotiated a severance w/ Ottawa and then arranged for Napean to pay him a retirement allowance. Held: L had a duty to disclose his negotiated severance to the Napean council; as CAO onus was on L to ensure that Napean council was supplied with reasonable, complete and sufficient information. Council – s 224 s 224, MA, 2001: role of council Councils exercise executive, legislative, administrative and quasi-judicial powers and functions and are elected either at large (municipal-wide) or by wards. a) to represent the public and consider the well-being and interests of the municipality b) to develop and evaluate the policies and programs of the municipality c) to determine which services the municipality provides 32 d) to ensure that administrative policies, practices and procedures are in place to implement decisions of the council; (d.1 to ensure the accountability and transparency of the operations of the municipality) e) to maintain the financial integrity of the municipality f) to carry out the duties of council s 5(1), MA, 2001: powers of a municipality shall be exercised by council s 5(2), MA, 2001: anything begun by one council may be continued and completed by the following council s 5(3), MA, 2001: a municipality must ultimately act through its council and by by-law (or as otherwise permitted) Case law has said that matters of a minor nature and of a purely administrative nature can be done by resolution as opposed to a by-law. o E.g. the retention of front line counter staff to manage waste disposal. Council might have to approve the budget but council doesn’t have to approve the hiring of a staff member. s 270, MA, 2001: requires council to have requirement to adopt and maintain policies with respect to the disposition of land, hiring of employees and procurement of goods including services Open Meeting Requirement – s 239(1) Recall: s 238, MA, 2001 requires the enactment of a procedural bylaw which determines how meetings are to be conducted o Must provide for public notice of meetings including closed meetings (content of notice is generally left up to council) s 239(1), MA, 2001: except as provided in this section, all meetings must be open to the public s 239(7), MA, 2001: a record of the meeting will be kept, whether it’s closed to the public or not s 240, MA, 2001: subject to the procedural bylaw (which will lay out when and meetings are to be called and conducted), the head of council may at any time call a special meeting and upon petition from a majority of council the clerk may call a meeting Under s 239.1 and 239.2 a person may request an investigation of whether a closed meeting complied with the act and the municipality’s procedural bylaw. Closed meetings: s 239(2), MA, 2001 closed meetings if the subject matter being considered is a) the security of the property of the municipality or local board b) personal matters about an identifiable individual, including municipal or local board employees c) a proposed or pending acquisition of land by the municipality d) labour relations or employee negotiations e) litigation or potential litigation f) anything subject to solicitor-client privilege g) any matter in which a closed meeting may be held as prescribed by another act 33 What about a “strategic planning”meeting? Southham Inc v Hamilton-Wentworth (Regional Municipality) 1988 ONCA Test: is the public being deprived of the opportunity to observe a material part of the decision-making process? Held: Open meeting qualifies as “any meeting to which all members of the committee are invited to discuss matters w/in their jurisdiction” Attending a regularly scheduled meeting and attempting to go in camera defeats the intent and purpose of council’s bylaw governing procedure Public should not be deprived of the opportunity to observe a material part of the decision-making process Comes down to the “heart of the matter” It’s not the type of meeting that is the issue. It is more about the subject matter – are you actually making the decisions there that are w/in your sphere of jurisdiction? Aitken v Lambton-Kent District School Board [2002] Ont Div Ct Huron East (Municipality) v Avon Maitland District (2002) Ont Div Ct 3714684 Canada Inc v Parry Sound (Town) (2004) ONSC Rules re: open meetings 1. no longer the type of meeting but the subject-matter 2. right to notice and participation is distinct from right to observe local government in process 3. read in: cannot be trivial or inadvertent 4. consequence: quashed even if intra vires Open meetings are intended to increase public confidence in the integrity of local government London (City) v RSJ Holdings Inc [2007] SCC Facts: London enacted interim control bylaw, effecting a one year freeze on all land development along a particular corridor in the City. City passed the bylaw following two closed meetings and one eight-minute public session (during which they passed 32 bylaws). RSJ Holdings position: applied for order quashing the bylaw on the ground that the City had contravened the general obligation under s 239(1) of the Municipal Act, 2001 to hold all meetings in public. City’s position: closed meetings fell w/in exception of s 239(2)(g) b/c under s 38 of the Planning Act, an interim control bylaw may be passed w/o prior notice and w/o holding a public hearing. Held: there is a distinction b/w a citizen’s right to notice and participation and a citizen’s right to observe municipal government in process. Nothing in s 38 of the Planning Act authorized the holding of a closed meeting. 34 Quorum s 237, MA, 2001: quorum defined as a majority of the full council membership s 266, MA, 2001: if council cannot meet for 60 days b/c of a lack of quorum, the Minister can declare the seats vacant and a by-election must be held Pecuniary interest – s 5, MCIA – see later in summary s 5, Municipal Conflict of Interest Act: councilor may not be entitled to vote at or participate in a meeting because of a conflict of interest s 232, MA, 2001: councilors pledge before the Minister in their Declaration of Office to disclose any pecuniary interest direct or indirect as required by the Municipal Conflict of Interest Act o it is suggested that councilors leave the room even during open meetings when they may have a potential financial interest in the matter being discussed o an elector can bring an alleged contravention of the MCIA to Div Court to challenge Statutory Officers Carry out regulatory requirements. Chief Administrative Officer (CAO) Note: a municipality “may” appoint a CAO but is not compelled to do so s 229, MA, 2001: duties of CAO a) general control and management, efficient and effective operation of municipality b) performing such other duties as assigned by municipality Officers owe a fiduciary duty to the municipality: Ottawa (City) v Letourneau (2005) ONSC Facts: when Napean was amalgamated with Ottawa, L, the CAO of Napean negotiated a severance w/ Ottawa and then arranged for Napean to pay him a retirement allowance. Held: L had a duty to disclose his negotiated severance to the Napean council; as CAO onus was on L to ensure that Napean council was supplied with reasonable, complete and sufficient information. Clerk – s 228, MA s 228, MA, 2001: a municipality shall appoint a clerk. *Note: not permissive. s 228(1): duties of a clerk a) record w/o note or comment all resolutions, decisions or other proceedings b) record votes c) keep originals or copies of bylaws and meeting minutes d) perform other duties under the act or other acts e) perform other duties assigned by the municipality Treasurer – s 286(1) s 286(1), MA, 2001: handles the money 35 Chief Building Official (CBO) s 1.1(6), Building Code Act, 1992: CBO est and enforces the building code s 3, Building Code Act, 1992: is appointed by the municipality o Reports to the CAO but is a provincial employee. s 19(1), Building Code Act, 1992: works for the province and no person shall obstruct them – it is an offence to do so under the Provincial Offences Act Municipal Officers/Administration (Staff) s 227, MA, 2001: (a) implement council’s decisions, (b) provide research and advice to council and (c) perform any other duties Holding Office Terms s 6(1) of the Municipal Elections Act, 1996: council members are elected for 4 year terms s 6(3): the term lasts until the successor has been elected. Lame Duck Rule – s 275(1) s 275(1): if criteria in this section is met, council is known as “lame duck” After the nomination date, you know that there is a chance the make-up of council will change so some actions that would bind the municipality are prohibited from being done. s 275(3) MA, 2001: prescribes certain business from being conducted should this happen a) appointment or removal from office of any officer of the municipality b) hiring or dismissal of any employee c) disposition of any real or personal property of the municipality which has a value exceeding $50,000 d) making any expenditures or incurring any other liability which exceeds $50,000 Eligibility – s. 256 every person is qualified to be elected or hold office who is entitled to be an elector and who is not otherwise disqualified from holding office s 17 of the Municipal Elections Act, 1996: Elector Eligibility resident or tenant in municipality (or spouse of) o tenant does not necessarily mean residential tenant. You could have a small office in the municipality and be eligible to run for office. Canadian citizen at least 18 years old is not otherwise disqualified from voting s 29, Municipal Elections Act, 1996: on the day of nomination the nominee must be qualified to hold that office 36 s 30, Municipal Elections Act, 1996: an employee of a municipality or a local board is eligible if s/he takes an unpaid leave of absence between nomination day and voting day s 258(1), MA, 2001: Ineligibility municipal employee of the municipality in which you are running (including nonemployees) judge of any court MP or MPP public servant (w/in meaning of Public Service Act, 2006) s 258(2), MA, 2001: Disqualification ceases to be a Canadian citizen is not a resident or tenant of land (or spouse of owner or tenant) in municipality is prohibited from voting in an election contravenes Municipal Conflict of Interest Act o Municipal Conflict of Interest Act – if there is a matter before council that you have a financial interest in, you cannot stand up and talk about it or vote on it. An error in judgment or mistake can save the councilor. But Ford made it clear that was not the case. Committees and Boards Committees Are generally only advisory, though the power to make bylaws can be delegated to them E.g. in Toronto, there is the community council for Planning Act matters Generally formed to process matters and to carry on the business of the municipality o In general, all evidence, discussion and debate on matters is carried on at the committee level o Recommendations proceed to council for formal approval or rejection – debate generally occurs but little or no introduction of evidence or discussion with proponent occurs at council Committees of council generally comprise a number of elected officials to deal with specific matters; they may also include non-members of council o some typical committees: planning, finance, administration, public works, parks and recreation, legal, etc. Committee of the whole – a committee comprised of all members of council but not functioning as the council Delegated Authority – s 23.1 s 23.1, MA, 2001: General power to delegate old rule was that the municipality can only delegate its administrative functions. Now there is a general power to delegate with certain rules to follow. 37 s 23.1(2), MA, 2001: Scope of the power 1. a delegation may be revoked at any time w/o notice unless the delegation bylaw specifically limits the municipality’s power to revoke the delegation 2. a delegation shall not limit the right to revoke the delegation beyond the term of the council which made the delegation 3. a delegation may provide that only the delegate can exercise the delegated power or that both the municipality and the delegate can exercise the delegated power 4. delegation or deemed delegation under para 6 of a duty results in the duty becoming a joint duty of the municipality and the delegate 5. a delegation may be subject to such conditions and limits as the council of a municipality considers appropriate 6. where a power is delegated, the power is delegated subject to any limits on the power and to any procedural requirements ss 23.2 and 23.3, MA, 2001: what cannot be delegated s 23.2(1) – legislative and quasi-judicial powers o except: s 23.2(2) – authority under the Planning Act, which can be delegated power being delegated that is minor in nature with regard to “number of people, the size of the geographic area and the time period affected by an exercise of power” (s 23.2(4)) o e.g. power to close a highway temporarily (s 23.2(5)1) s 23.3(1) – power to adopt an “official plan” s 284.1, MA, 2001: council can create an appeal body for the decisions made by a person or body to whom council has delegated authority Local Agencies, Boards and Commissions (ABCs) Special Purpose Bodies 1. They are public bodies in that they are either elected by local voters or appointed by council(s), the provincial government of other special-purpose bodies 2. They operate at the local or regional level, but outside the normal council structure 3. They have a single function or limited range of functions 4. They receive at least part of their revenue from municipal government, provincial government, and/or user charges Policy: Certain services (police, fire, etc) should be insulated from local politics. However, because they are usually unelected, they are criticized for being unaccountable (typical objection levied against unelected bodies). Local Boards s 216, MA, 2001: municipality has the power to dissolve or change local boards (3): Restrictions 38 “local board” means a municipal service board, transportation commission, public library board, board of health, police services board, planning board, or any other board, commission, committee, body or local authority established or exercising any power under any Act with respect to the affairs or purposes of one or more municipalities, excluding a school board and a conservation authority. provisions in the Municipal Act, 2001 regulate local boards in a number of contexts : o requirement to adopt and maintain policies with respect to the disposition of land, hiring of employees and procurement of goods including services (s. 270) o procedural by-laws – how meetings are to be conducted (s. 238) o open meetings (ss. 238 and 239) o fees and charges (Part XII) legislation may require some local boards be in place when certain services are chosen (e.g. police services boards and public library boards) Municipal Service Boards (more malleable/changeable than local boards) – s 196(1) corporate bodies and agents of the municipality s 196(1), MA, 2001: power to est municipal service boards s 23.4, MA, 2001: provides rules for the delegation of powers to municipal service boards s 198(1), MA, 2001: municipality can give a municipal service board the control and mgmt. of such services and activities as the municipality considers appropriate s 195, MA, 2001: A public utility commission est under the Public Utilities Act, a parking authority est under s 207, para 57 of the old Act, and a board of park management under the Public Parks Act are municipal service boards under this act o w/ the same powers, control and management of the same services that they had before. Municipal Service Corporations a municipality has the power to establish corporations to provide most services provides increased opportunities for public/private partnerships and to involve private sector partners in the financing and undertaking of public projects through service corporations complicated rules for establishing under O. Reg. 599/06 examples of municipal corporations include: water and waste waster services, land development corporations, cultural foundations 39 s 203, MA, 2001: Power to establish corporations municipality can set up corporations, nominate someone as director, acquire an interest in or guarantee securities, exercise any power entitled as a holder of securities. (3) Exceptions under the Electricity Act, 1998 and the Housing Development Act Business Improvement Areas (are local boards) – s 204 to oversee the improvement, beautification and maintenance of municipallyowned land, buildings and structures in the area beyond that provided at the expense of the municipality generally; and to promote the area as a business or shopping area budget of BIA approved by council and special charges may be imposed on membership – special taxes to fund BIA activities s 204, MA, 2001: municipality may designate an improvement area and est a board of management Ombudsman The Ombudsman is the closed meeting investigator if a municipality hasn’t appointed one separately. Unfortunately, the closed meeting investigator only can make recommendations to council. Only a court can quash the decision made by council. According to the ombudsman, council must have open meetings where they are “laying the groundwork” for decisions of council. This is his opinion of what the test should be, not what the test actually is. The court of appeal has said that any meeting that is “moving business forward” means there should not be a closed meeting. s 239.2, MA, 2001: a municipality may appoint an investigators for closed meetings. Failure to do so leaves this responsibility in the hands of the Ombudsman. 40 Debt and Investment Part XII, Municipal Act, 2001 Continues and consolidates the powers of municipalities to borrow and invest money. This part of the Act should be read closely w/ the regs. O. Reg 247/01 – Variable Interest Rate Debentures and Foreign Currency Borrowing which was amended by O. Reg 275/02 purpose was to provide for a broader range of investments for municipalities. O. Reg 403/02 – Debt and Financial Obligations Limits council must adopt lease financing policies before entering into any finance leasing Ks much stricter accountability for lease terms that extend beyond council terms O Reg 276/02 – Bank Loans allow municipalities to obtain bank loans for long-term financial commitments (primarily to fund capital infrastructure projects) O Reg 278/02 – Construction Financing also aims to support municipalities in long-term financing of capital infrastructure by allowing municipalities to issue debentures that carry debt-free service holiday periods (up to five years). Meant to be for the construction period. O Reg 653/05 – Debt-related Financial Instruments and Financial Agreements prescribes various types of authorized financial instruments and agreements for debt borrowing under s 401 Bill 130/Municipal Statute Law Amendment Act, 2006 s 401(3.1): debentures issued by a regional municipality for its own purposes constitute direct, joint and several obligations of the regional municipality and its lower tier municipality 41 Licensing and Regulation Application to quash (s 273) is the main way municipal actions, bylaws and resolutions may be challenged Virgo v Toronto: (historical analysis of what the SCC says about municipal licensing authority) Facts: bylaw restricted hawkers and peddlers and fishmongers, precluding them from using city streets. Application to quash the bylaw on the grounds that it exceeded jurisdiction/authority of City of Toronto was dismissed by QC, upheld by CA. Held: Supreme Court of Canada held that licensing by-law was not invalid as being in restraint of trade or ultra vires city’s legislative authority under the then Municipal Act. But the SCC said that fish mongers were a different body that the municipality was not entitled to regulate (this is b/c of the laundry list/prescribed powers approach). Note: This evidences the problem with the laundry list approach. It doesn’t make sense that you could regulate peddlers and hawkers but not fish mongers. History of licensing “Ontario’s ever-changing municipal licensing regime”, John Mascarin It has always been recognized as a consumer protection mechanism at the local level. The original intent was to have a revenue-generating scheme: to regulate activities but ALSO as a mechanism to raise revenue. Recognized as a basic form of consumer protection: • section 92 of Constitution Act, 1867: 9. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to raising of a Revenue for Provincial, Local or Municipal Purposes. Original scheme was ad hoc and subject to the laundry list approach: • licensing had historically been addressed in a largely ad hoc fashion in the former Municipal Acts • separate and disparate licensing authorities were scattered throughout the statute • licensing fees were treated in a similar fashion • municipal discretion granted but provisions were still largely restrictive Even though the intent behind licensing was to allow municipalities to raise revenue, the provinces would prescribe in legislation very low fees without much rhyme or reasoning behind what they allowed to be charged for various things. This also tied the hands of the municipalities. This prompted change in the legislation because, even though the intent was to allow m’s to raise revenue, the prescriptive regime of the provinces tied the hands of municipalities. Municipalities were not able to raise enough revenue from licensing to even cover the administrative costs of the scheme they were involved in, for example. This is a current issue with development charges. 42 Savings and Restructuring Act First change from old scheme: a specific authority within the act to issue licenses Harris – was trying to offload a lot of the province’s responsibilities onto the municipalities and gave them new tools to raise revenue. The SRA changed licensing – instead of a prescriptive approach, it gave a general licensing authority to license any type of business/economic activity carried out in whole or in part within the municipality (general authority to impose license fees). It gave power to license, regulate or govern. Exceptions: are largely historical and include manufacturing, wholesale of goods and natural resources. Municipal Act, 2001 Licensing authority has been brought over from the Savings and Restructing Act and there was a retrenchment in the business licensing authority but now m’s could only use the “business licensing” authority to licence, regulate or govern was expressly limited to following purposes: • health and safety • nuisance control • consumer protection • express purposes were not set out in Savings and Restructuring Act s. 257.2 of former Municipal Act AND it required M’s when enacting a bylaw to have: a statement and explanation for the reasons for licensing an activity and an explicit link to purposes in the licensing by-law Pimenova v Brampton (City) 2004 strikes a bylaw for not having met the above two requirements *Note: this case is a bit of an outlier and has now become moot. Pre Bill 130 – pendulum swinging back to more provincial oversight sunset provision: licensing by-laws were stipulated to have a maximum life of five years from the date they originally came into force prescribed onerous notice and consultation requirements: must have a public meeting with notice to the public that it could make representations and submissions limitations on licensing fees (no revenue generating allowed): costs could not exceed the costs of administration or enforcement of by-law councils were given permissive authority to seek the views of the public prior to enacting a licensing by-law or issuing, renewing, revoking, imposing conditions or suspending a license (this wasn’t so unusual but it was troubling for license holders like adult entertainment establishments, for example). Adult Entertainment Assn. of Canada v. Ottawa (City), [2007] ONCA – led, in part to the Bill 130 amendments Facts: 43 • City of Ottawa enacted a licensing by-law that prohibited touching between performers and customers, and required all services to be performed in open areas • adult entertainment parlours in Ottawa challenged the by-law, as it effectively outlawed lapdancing Adult Entertainment Argued: There was inadequate notice given, etc. It was challenged on multiple grounds. Held: on all grounds, bylaw upheld as valid exercise of municipal licensing authority • City gave adequate notice. • City had the authority to enact the by-law pursuant to the interest of public health and safety and consumer protection authority. • City did provide the explanation and the linkage b/w what the bylaw was proposed to do and the objective • No unlawful delegation of authority to Chief of Police or the bylaw inspector • Licensing by-law not discriminatory (there is a general authority to differentiate under s. 10) • Licensing by-law not vague nor unreasonable • Neither the provision prohibiting touching nor the provisions regarding signage and the posting of the by-law were violations of the limitations on the municipal licensing power 2211266 Ontario Inc. [Gentleman’s Club] v. Brantford (City): clear reading of the scope of municipal licensing authority (how broad that authority had become) Facts: Bylaw focused on the entertainers as well as the business itself. Held: whereas once municipalities could only licence business, trades and occupations and could only do so for specific purposes (health & safety, nuisance control and consumer protection) this is no longer the case. There is broad authority in s 8 of the MA, 2001 (see below). Reasoning: • s. 8(3)(c) of the Municipal Act, 2001 grants municipalities the power to create a system of licences respecting any matter over which they have by-law making authority under ss. 10 or 11. • Court looked to s. 8(1) which directs an expansive interpretation of the scope of this power so as to confer broad authority on the municipality to enable it to govern its affairs as it considers appropriate.” • Looked at spheres of jurisdiction/broad purpose authority: o In this case, the City could enable by-laws dealing with the (i) health, safety and well-being of persons, (ii) protection of persons and protection, including consumer protection and (iii) business licensing • Rejected argument from the Gentleman’s Club: s. 151(5) provides that the business licensing provisions “apply with necessary modifications to a system of licences with respect to any activity, matter or thing for which a by-law may be passed under ss. 9, 10 and 11 as if it were a system of licences with respect to a business.” o “business licensing” did not used to be a specific listed sphere of jurisdiction and it and it is also listed for single tier M’s in the broad authority powers 44 Post Bill 130 – municipalities lobbied for more authority - no longer about just businesses; much broader and has more utility for Ms • general authority for a municipality to establish a “system of licences” (s. 151) • “licence” very broadly defined as “a permit, an approval, a registration and any other type of permission” (s. 1) • extends municipal powers to license to any business activity, matter or thing that a municipality can regulate under ss. 9, 10 (broad authority), 11 (spheres of authority), pursuant to (s. 151(5)) • no sunset clause (removal of 5-year time limitation period) • specific licensing criteria removed – no longer have to pass under health and safety; nuisance control or consumer protection. So long as the M can find authority under the broad authority or spheres of authority, it’s okay. *This means it’s no longer about just businesses. • mandatory notice and public hearing provisions removed Essentially now it’s: Authority o a municipality may provide for a system of licences with respect to a “business” carried on within the municipality Licensing o includes a permit, an approval, a registration and any other type of permission Purpose o to shore up gaps in provincial regulation of businesses or activities o to ensure compliance with general standards o to promote health and safety and to protect consumers Licensing authority under s 151(1) and s 8(3) includes authority to refuse/revoke “business licensing” listed as a matter under the spheres of jurisdiction (s. 11(3) 10) and under the broad authority powers (s. 10(2) 11) municipal powers are broad, with regards to business licensing: o the power to license, regulate or govern places or things includes a power to license, regulate or govern the trades, occupations or business for which such places or things are used and the persons carrying on or engaged in them o the licensing power in s. 151(2) is broad enough to include requirements to licensees respecting the conduct of their trade and to be cognizant of the safety of people who work in their establishments Key linchpin section: s. 151(5) [business licensing provisions] apply with necessary modifications to a system of licences with respect to any activity, matter or thing for which a by-law may be passed under ss. 9, 10 and 11 as if it were a system of licences with respect to a business 45 151(1) a) b) c) d) e) M has discretion to prohibit the carrying on of a business without a licence, to refuse or to revoke a licence, and to impose conditions - s. 151(4) Without limiting sections 9, 10 and 11, a municipality … may, inter alia: prohibit the carrying on of a business without a licence refuse to grant a licence revoke or suspend a licence impose conditions for holding or renewing a licence impose special conditions by class in order to obtain, continue or renew a licence Qualifications on Municipal Licensing • municipalities cannot license: o manufacturing or industrial businesses o the wholesale of goods o generation, exploitation, extraction, harvesting, processing, renewal or transportation of natural resources • municipalities cannot: o refuse a licence because of location o exception: adult entertainment parlours Often municipalities try to restrict adult entertainment via their zoning bylaws. So municipalities permit them somewhere and then place licensing restrictions that effectively make them prohibited and then they have to go to court. ***A municipality may not prohibit a trade in its entirety. • municipalities may include prohibitions, but may not prohibit a trade in its entirety Province has retained authority for the Minister to outline other businesses that an M is not entitled to regulate. O. Reg. 586/06: no municipal licensing of liquor sales and service, couriers, real estate sale and brokerage business, and transportation. (Note: all of those businesses have big lobbies that lobbied the provinces to get on the list). • What about taxis and tow trucks? M’s have specific authority to regulate them. Licensing Fees • • Power to impose licence fees is implicit through the authority to impose conditions upon issuance of a licence It used to be that the authority to licence a thing would have with it explicit authority to impose a fee in the legislation Part XII – “Fees and Charges”: allows M’s to impose fees/charges for any cost that the M can pay. s. 391: affirms that ss. 9, 10, and 11 authorize municipality to impose fees or charges for services or activities provided or done by or on behalf of the municipality these fees may include costs incurred in relation to the administration and enforcement of the licensing regime fee cannot be so high as to amount to a “tax”; 46 Test: there must be a nexus between the fee charged & licensing service provided; though absolute precision is not required to uphold licensing fee (Scarborough Transat) The court did not say that there had to be an absolute/precise connection, instead the court left a little bit of flexibility – there must be a reasonable estimate between fee charged and administration of service provided. Enforcement Administrative Penalties • municipalities may charge these if any person fails to comply with any part of a licensing system, set out in the licensing bylaw - s. 151(1)(g) Licence Suspensions • suspension without hearing for up to 14 days if immediate danger to health or safety of person or property - s. 151(2) • municipality must give licensee reasons for suspension • licensee must be given opportunity to respond Compliance Inspections • power of entry under s. 436 • inspections allowed in order to ensure compliance with conditions of licence Procedural and Substantive Fairness • Controls on municipal action to ensure fairness: • council must “act fairly” in deciding whether to grant or refuse a licence (i.e. grant or refuse according to the criteria established in the licencing bylaw), and • council must not refuse an application without giving “due consideration” of all relevant information • however, a municipality has discretion to prohibit the carrying on of a business without a licence, to refuse or to revoke a licence, and to impose conditions - s. 151(4) Essentially, council must look to the criteria established in the licensing bylaw. Council must set out criteria in the bylaw so that the operators know what they must adhere to or whether or not they qualify to get a licence. Municipal Powers to Regulate Licencing is broad, but there is also a lot of broad authority/power to regulate. General Powers: Municipal Act, 2001 - Part II • general municipal powers • natural person powers – s 9 • spheres of jurisdiction – ss 10, 11 • broad authority powers – s 8(1) • scope of by-law making power – s. 8(3) • regulate or prohibit 47 • • • require persons to do things • provide for a system of licences various limitations & restrictions set out in ss. 13-19 powers can regulate, control and prohibit activities and actions Specific Powers: Municipal Act, 2001 - Part III • specific municipal powers – divided into two main groups: • powers that either supplement or limit the grants of authority in the spheres of jurisdiction & broad authority powers (e.g. highways – Part III puts limits on the broad authority granted under Part II) • powers not associated with the spheres/broad authorities • two limitations imposed: • general municipal powers in Part II are to co-exist with & be supplemented or restricted by the specific powers in Part III • by-laws passed under ss. 9, 10 or 11 are subject to any procedural requirements imposed on the power by Part II Examples of specific powers that limit general powers from Part II (“claw back” provisions) Roads & Transportation: • highways (ss. 24-68) • transportation (ss. 69-73) • parking, except on highways (ss. 100-102.1) Other Municipal Infrastructure: • waste management (ss. 74-76) • public utilities (ss. 78-93) • drainage and flood control (ss. 96-97) • structures, including signs and fences (ss. 98-99.1) Health & the Environment: • culture, parks, recreation and heritage (ss. 94-95) • animals (ss. 103 and 105) • health, safety and nuisance (ss. 115-134) • natural environment (ss. 135-147) Miscellaneous Powers: • economic development services (ss. 106-114) ***anti-bonusing falls under this • closing of retail business establishments (s. 148) • annual farm dues (s. 149) Conclusions • longstanding municipal authority to license businesses and persons has constitutional basis • licensing generally for health and safety, consumer protection and nuisance control • municipal licensing authority has undergone a number of significant changes in a short period of time 48 • • granting municipalities broad powers to enact by-laws related to “business” licensing signifies a greater acceptance of municipal governments as responsible and accountable levels of government municipal regulation can of course, also be done through the general and specific powers in Parts II & III Anti-bonusing provision ***Pay attention to this w/ respect to financial administration Prohibition against municipal bonusing (s 106) Common provision, found in virtually every M statute. • No conferring an obvious financial advantage to a person or business. Can’t give or lend money, sell or lease land at less than FMV (fair market value). Anti-bonusing provision – s 106 s 106(1) despite any act, an M shall not assist directly or indirectly financial assistance to manufacturing business or any other commercial or industrial enterprise. (2) example of what an assistance means: can’t give or lend municipal property or money, sell or lease land at less than FMV (fair market value). Can’t give a total or partial exemption from any levy, charge or fee. (3) exception is for community improvement areas. Ability to make grants – s 107 s 107 permission to make grants on terms council considers appropriate for any purpose that council considers to be in the interest of the M. Historical evolution 1860s and 1870s, M’s wanted to and were permitted to attract manufacturing, industrial, commercial and transportation infrastructure. M’s wanted a portion of their tax base to be from those sectors because their property taxes are much higher. Catalyst says Ms can impose a much higher rate on manufacturing; they’re entitled to discriminate. At the turn of the century some Ms are able to entice businesses and attractive commercial enterprises and others that aren’t as rich are floundering. Provinces came up with the concept of bonusing defined to be: “the granting of money, issuing of guarantees or the gifts of land”. It tries to put a monetary cap onto what an M can do. 1914: permitted granting of a bonuses for certain manufacturing and commercial enterprises. In 1961, there was an economic boom where the bonusing provisions were allowing wealthy Ms to further entice business to their area (kind of predatory behavior in its effects on smaller Ms). In 1989, statutory examples of the prohibition were modified but similar to the current restrictions. No definition of bonus. There is a debate: is the objective to 49 provide a level playing field so that some Ms can’t use financial incentives to attract certain uses? Presently… Broad statutory powers: we are supposed to interpret M’s powers broadly. Judicial approach to M powers is to recognize that they are to be broadly construed (Croplife – benevolent, liberal interpretation ) There are many exceptions to s 106, e.g. community improvement plans (s 28 of the Planning Act) Common law exceptions to s 106: court will look at factual matrix in context of K as a whole to determine whether there was bonusing Friends of Landsdowne: highly fraught decision about redevelopment of Landsdowne Park in Ottawa. Facts: • FoL were against City going forward on a sole sourcing to redevelop the park. • M was giving certain revenue back to the consortium of developers (giving leases rent-free for certain periods, giving lands for them to put up buildings) Held: Court said, must look at complete contractual matrix, you must read it in context. This was a complicated scheme and there were a lot of burdens, obligations and benefits to this K. They are putting up a new football stadium, etc. so the FoL cannot just point to the rent-free provisions and say there was bonusing. Province intends for Ms to have significant discretion w/ respect to subject matters w/in their jurisdiction. Test for whether bonusing was present: Nowak v Fort Erie Facts: • A parcel of land with the last remaining public beach in the town. • M wanted to redevelop it but M had no money • M entered into s 37 arrangement under Planning Act: o M allows development of certain heights provided that the developer put in facilities, new sand, etc. Held: Must look to the factual matrix. Test: is there a conferral of a financial benefit to one person/entity only in exclusion of other people? 50 Ethics, Accountability and Transparency in the Municipal Context Accountability and Transparency Procurement procedures were impugned by Madame Justice Bellamy during an inquiry, which prompted change in the legislation How are procurement decisions made? s 270 Procurement decisions are done in different ways (i.e. purchasing is sometimes done by council directly or through delegated authority). Reasons for procurement rules are fairness to vendors and accountability back to city council who has delegated the authority. What precipitated changes to the leg? Madame Justice Bellamy in the 90s made findings that councilors had been taken for drinks, dinner and to a sporting event by the developer, municipal official had granted a K/entered into a procurement K by making a one on one deal with a company, a councilor made a K with a company run by someone s/he had a romantic relationship with and did not declare a conflict of interest, etc. Judge found this compromised the independence of the councilors and made them appear open to persuasion. A competitive bidding process so that all bids are assessed against the same parameters. Municipal legislative reform 2006/2007 One of the most significant developments was the addition of a Part addressing accountability and transparency Added to Municipal Act, 2001 (MA) and City of Toronto Act, 2006 (COTA) MA Part V.I and COTA Part V Judicial Inquiry by Justice Bellamy: Related Recommendations Recommended there be Codes of Conduct: • Expanded code of conduct for councillors • Expanded conflict of interest policy for staff • These should reflect highest ideals and standards rather than minimum ones Office of Integrity Commissioner • Fixed term appointment • Reporting to the council rather than to the mayor • Removable only by a 2/3 vote of the council Complaints and Investigations • Public should be able to complain to integrity commissioner about ethical conduct of council members and staff • Members should be required to cooperate with the investigation • Integrity Commissioner should have summons powers 51 Sanctions • Integrity Commissioner should be empowered to recommend a wide range of sanctions to the council including a fine and removal from office • Integrity Commissioner should be empowered to recommend to the council sanctions for staff (similar to employment law sanctions) • Ethical misconduct should attract serious sanctions (***not implemented) Lobbying • The city should adopt a code of conduct for lobbyists holding them to high ethical standards. • The city should create a lobbyist registry. • The city should make registration a prerequisite to lobbying. • The city should appoint a lobbyist registrar • There should be sanctions for failing to register as required. Changes to MA and COTA addressing accountability and transparency, Effective January 1, 2007 Part IV.1 MA and Part V COTA: intended to cover four broad topics 1. Conduct of members of council and local boards o Councils may establish a code of conduct – s 223.2 o Councils may appoint an integrity commissioner who has a role in enforcing the code of conduct o M may appoint an integrity commissioner – s 223.3 – 223.8 o Integrity Commissioner role includes (but is not limited to): Investigating alleged violations of the code Reporting on the investigations Recommending sanctions to council, and council can decide to impose them o Bellamy recommended IC deal w/ complaints about staff but the IC does not o Sanctions – not very serious, not wide (which Bellamy did recommend be available) o First of all, violation of the code of conduct cannot be an offence. o Two potential sanctions s. 223.4 (5): A reprimand Suspension of member’s pay for up to 90 days o The council or local board must decide the sanction based upon the findings in the integrity commissioner’s report to it o Reports to council shall be public – most serious consequence Magder v Ford Facts: Ford used city resources to solicit funds ($3,000) while holding public office for his private football club. IC found that he should have to pay back the funds as he had violated the council code of conduct. Issue: was Ford voting on whether or not he had to pay back the funds a conflict of interest? 52 Procedural History: Trial judge held that voting was a conflict of interest. The only penalty available for that was removal from office. Held: IC should not be recommending sanctions beyond the two potential ones listed below – a reprimand or suspension of a member’s pay for up to 90 days. Reasoning: Council lacked the jurisdiction to implement the IC’s recommendation so Ford’s vote is of no consequence because he never would have been required to pay back the funds. Note: conflict of interest is really supposed to be about what was in the councillor’s mind at the time. Mascarin: IC should have just suspended Ford’s pay. IC wanted to impose a penalty on Ford himself b/c she believed other penalties were available. 2. Transparency and regulation of lobbying – s 223.9 o Councils may establish a lobbyist registry o It will be a public “registry of persons who lobby public office holders” o Councils may appoint a registrar to do the following: Manage the registry Investigate allegations that the rules regarding its use have been breached. o The legislation contemplates regulating conduct but doesn’t require a code of conduct to be established (as Bellamy had suggested) o The system of registration may include “a code of conduct for persons who lobby public office holders” o The legislation contemplates public reports to council about the results of investigations o It does not address sanctions that might flow from registrar’s findings, but revocation of registration is an obvious potential consequence – with registration being a pre-requisite to lobbying, that is an obvious serious consequence. o Some lobbying bylaws make some behaviours offences 3. Administration of civil service o Conduct of the Civil Service – Ombudsman - s 223.13(1)] and Ombudsman Act Ombudsman’s role is to investigate the actions of the municipal administration Investigations may respond to a complaint or be initiated by the Ombudsman. The legislation contemplates reports by the Ombudsman which are public and reported directly to the council. o The inquiry does not address sanctions that might flow from Ombudsman findings, but the administration would be expected to act on Ombudsman recommendations. o If employee misconduct is suggested, an investigation into it could follow. 4. Achieving value for public funds o Auditor General role: Municipal accountability for stewardship over public funds 53 o o o o o Achievement of value for money All municipalities must have an auditor audit their books annually Distinguishes the role from that of the municipal auditor responsible for performing an annual audit of municipality’s books. It contemplates that the Auditor General will do the following conduct investigations report periodically to the council. Legislation does not address sanctions that might flow from auditor general’s findings. If employee misconduct is suggested, an investigation into it could follow. Press is interested, council really must respond – Council could also react to findings and adopt recommendations. Policy Rationale: Increase municipal accountability to the public Increase transparency of municipal operations Differences between MA Part V.I and COTA Part V • • • COTA makes the following mandatory: – Establishment of a code of conduct – Maintenance of lobbyist registry – Appointment of ombudsman (*this is an ombudsman that is for the city, not Andre Morin that investigates closed meetings) – Appointment of auditor general – Appointment of integrity commissioner These are all optional in the MA. – Should these be mandatory for all municipalities? – Could smaller municipalities afford to employ all of these officials? • Doesn’t make sense to impose such a high cost • Accountability through less formal mechanisms – How could costs be contained? • Might be able to combine some roles • For officials whose role is complaint driven, there is no way to control how many complaints come in – Are the goals of sufficient importance to impose these requirements? • Jury is still out on how effective these measures actually are in improving accountability Both make appointment of lobbyist registrar optional Powers and Duties of the four accountability mechanisms • All four accountability officials can exercise similar powers of investigation, but the language employed to grant them differs. • The Integrity Commissioner and Lobbyist registrar have powers under the Public Inquiries Act (Parts I and II) including the power to summons witnesses (s 223.4(2)) and to require those summoned to both submit to examination under oath and to produce documents. These are in Part II. 54 • • The Ombudsman has powers under s. 19 of the Ombudsman Act including the power to summons persons and to require them to both provide sworn testimony and produce documents. • Part V.I explicitly requires that documents and other things be provided to the Auditor General. • It also grants the AG powers under Part II of the PIA which include the power to issue a summons. They have the duty of confidentiality (s 223.5) • The duty prevails over the Municipal Freedom of Information and Protection of Privacy Act. • Records obtained in the course of performing duties under Part V.I cannot be disclosed even if an application is made under the MFOIPPA. Independence • Appointed by the council • Report to the council • Fixed term • 2/3 to remove • Remuneration set upon appointment • Separate from bureaucracy (policies and practices can reinforce) Effectiveness • Lobbyist registrar can revoke registrations of those who fail to follow the rules. This should serve as a deterrent. (offences) • Reports of the Ombudsman are public and receive media attention which puts pressure on the administration to implement recommendations. • The same is true of Auditor General reports. • Although sanctions resulting from Integrity Commissioner investigations are minor, the I.C.’s reports provide negative publicity for council members. The system is a deterrent to code of conduct violations. Mascarin: if you are the ombudsman or integrity commissioner for the city or the closed meeting investigator, you become close with the councillors and it might be difficult to make a finding against them. But overall Mascarin doesn’t buy into Andre Morin’s criticism and believes that they discharge their duties with a lot of integrity. There is more public scrutiny over the process generally because of social media (e.g. Aurora councillor who was blogging everything, including content from closed meetings and was dismissed on a vote from other council members). Definitions Accountability • Accountability – “obligation to answer for a responsibility conferred” • Where powers granted and duties conferred by the public, these must be exercised in the public interest. • Elected officials and public servants have this responsibility and are answerable to the public for its fulfillment. 55 • They are answerable both directly (elections) and indirectly (complaints that might be filtered through a councillor w/ respect to a staff member, for example). Transparency • Open and accessible (physically accessible and understandable) – in a convenient place • There should be notice of the meeting, provided early enough that people with an interest can read the materials Ombudsman • An individual appointed to investigate complaints about an administration (Our legislation gives broad authority to investigate – a decision/recommendation/act or omission of the municipality) Lobbiest Registry • Lobby – to communicate with a public official in an attempt to influence a government decision • Very broad and encompasses a lot of behaviours Open Meeting Investigator – s 239.2 • • • • • s 239.2 – M can appoint an open meeting investigator Fosters transparency Definition of “meeting”: “any regular, special or other meeting of the council, a local board or a committee of either” Meetings must be open to the public. There are several exceptions to this rule. Public must be notified of every meeting – essential for transparency s 238, MA, 2001: requires the enactment of a procedural bylaw which determines how meetings are to be conducted Must provide for public notice of meetings including closed meetings (content of notice is generally left up to council) s 239(1), MA, 2001: except as provided in this section, all meetings must be open to the public Exceptions to open meeting rule s 239(2), MA, 2001: closed meetings if the subject matter being considered is • Security of the property of the municipality or local board • Personal matters about an identifiable individual • A proposed or pending acquisition or disposition of land by the City or local board • Labour relations or employee negotiations • Litigation or potential litigation including matters before administrative tribunals, affecting municipality or local board 56 • • • • Advice that is subject to solicitor-client privilege, including communications necessary for that purpose A matter in respect of which a closed meeting may be held under another statute (Emergency Management Legislation) The consideration of a request under the Municipal Freedom of Information and Protection of Privacy Act, if the body holding the meeting is the “head” of an institution under the MFOIPPA. The meeting is held for the purpose of education and training, and at the meeting no member deals with any matter in a way that materially advances business/decision-making – this was added in the 2007 amendments • Council members liked it because it makes them more comfortable asking questions out of public scrutiny • BUT, this is dumb because it makes training sessions meetings where they weren’t considered to be that before Closing a meeting • The council/local board/committee must state the following by resolution: – The fact that the meeting will be closed; – The general nature of the subject matter to be discussed in the closed session (should indicate the exception to the closed meeting rule); and – If it is to be closed for education and training, the resolution must specifically state that exemption. • The vote must be taken in public unless: • It pertains only to a procedural matter; or • It is only a vote to give instructions to staff or to persons retained on contract. – Even if the meeting is closed, “all resolutions, decisions and proceedings” must be recorded – s 239(7) MA – Adopting confidential recommendations – resolution could be something as simple as all recommendations adopted. • Why is this rule important? (Andre Marin article) What tension does it attempt to resolve? – Ms will appoint someone ‘friendly’ to them – Ms can charge an application fee which could serve as a deterrent Mascarin: There could be a councilor/mayor in violation of the open meeting rule who is really just trying to build consensus and get something through. Also, provincial legislators have party meetings within their caucus too. Open Meeting Investigator (since 2007) • • • Since 2007 the legislation has provided a complaint mechanism for those who believe that a meeting has been closed improperly. Municipalities can appoint an open meeting investigator, and if they don’t, the provincial ombudsman will investigate complaints about meetings of the municipality. The complaint can be about failure to follow either the open meeting rule in the legislation or one found in a municipality’s procedures by-law (all are required to have such a by-law). 57 • s 238, MA, 2001: requires the enactment of a procedural bylaw which determines how meetings are to be conducted • Must provide for public notice of meetings including closed meetings (content of notice is generally left up to council) • The investigator must investigate “in an independent manner” and, if the investigation identifies a violation of the rule, must report on the investigation and report must be public • The investigator has a duty to keep matters confidential. • The investigator may delegate powers and duties but not to a member of the body being investigated • The reports are made to the body complained about but must also be made public. Otherwise no consequence of negative finding. • Generally has the same investigatory powers and duty of confidentiality as the Ombudsman. • Can require production of documents and examine under oath. • Is required to keep information confidential except as required for reports. • Records are not subject to disclosure under MFOIPPA. • Municipality has to assign someone the responsibility of reviewing the request. It might be prejudicial to the M’s interest to disclose (or even to an individual’s interests). Mascarin: Montor v Brantford – First Nations blockade. Laskin J: berated the applicants for not asking the closed meeting investigator. Given that the investigator has no authority to impose sanctions really, that was pretty unfair. Bias Old St. Boniface Facts: • A municipal councillor appeared before the municipality’s Finance Committee as an advocate in favour of a development application. The councillor had also been involved in planning the development. • At public meetings the councillor did not disclose his earlier involvement. • Statute provided for a hearing before a committee of council members before the municipality made its decision on the development application. That committee included the councillor against whom an allegation of bias was made. • The development application was approved and a residents’ association challenged the decision. • The matter reached the S.C.C., and one of the issues on the appeal was whether the councillor was biased. Issue: was this individual biased in a way that would disqualify him from voting and therefore taint the municipality’s decision? Held: The councillor had not prejudged the case to the extent that he was disqualified on grounds of bias. So long as the council member is capable of being persuaded, there is no bias. Reasoning: • During the development process, municipal councillors often take a stand for or against a development. 58 • Tribunal members would be disqualified on the basis of reasonable apprehension of bias for this. • This degree of bias is, however, acceptable for and even expected of a municipal councillor. • In requiring a hearing before council members, the Legislature could not have contemplated application of the same standard regarding bias that is applied to tribunals. • “Under the democratic process the elected representatives are expected to form views as to matters of public policy affecting the municipality. … They are not judges but legislators”. (para. 47) • “[A]ll that can be required of the council is to put aside their tentative views individually and collectively, hear the objections, consider them honestly and fairly, see if they can be accommodated and then make the final decision.(para. 52) • Objectors and supporters are entitled to be heard by “members of Council who are capable of being persuaded.” (para. 57) • While Legislature “cannot have intended to have a hearing before a body who has already made a decision which is irreversible.” (para. 57) • “The party alleging disqualifying bias must establish that there is prejudgment of the matter, in fact, to the extent that any representations at variance with the view which has been adopted would be futile.” (para 57) • Council member statements which “give rise to the appearance of bias will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter which cannot be dislodged.” (para. 57) Mascarin: the “amenable to persuasion” test makes the threshold too high. How could you ever prove someone has a fully closed mind? Unless a councilor shot someone down saying, don’t bother telling me your points, I cannot be persuaded. Save Richmond Farmland Society Facts: • A by-law rezoned land from farmland to residential. • A public hearing was required by statute. • Prior to the public hearing a council member gave an interview to a newspaper. The paper reported that the councillor: “says he won’t change his mind regardless of what was to be said at the hearing”. • He later gave a television interview suggesting that although he supported development on the land, he could be persuaded. Held: • A member of a municipal council is not disqualified by reason of bias unless she/he has prejudged it to the point of being “no longer capable of persuasion.” (para. 24) • “The relevant test is whether the councillor had a closed mind.” • The council member “had not reached a final opinion on the matter which could not be dislodged.” (para. 25) Concurring reasons (minority): conclude that requiring a court to determine whether a decision-maker’s mind in closed is pointless. It also concludes that because the process is legislative, a council member is entitled to a closed mind provided that the “closed 59 mind is a result not of corruption but of honest opinions strongly held.” (para. 48) *This would be an interesting alternative test that might be easier to administer. Municipal Conflict of Interest Background Ontario’s Municipal Conflict of Interest Act (“MCIA”) was originally enacted in 1972 MCIA codifies provisions found in previous versions of the Municipal Act, dating back to 1849 legislation has received substantial judicial consideration there are no regulations under the MCIA applicable to members of a municipal council and to members of “local boards” (broadly defined in s. 1 of the MCIA); not applicable to municipal staff or administration Ontario’s MCIA is typical of conflict of interest legislation in other Canadian jurisdictions o Alberta – Part 5 of Municipal Government Act o B.C. – Part 4, Division 6 of Community Charter o Manitoba – Municipal Council Conflict of Interest Act o Saskatchewan – Municipalities Act and Cities Act o Nova Scotia – Municipal Conflict of Interest Act o New Brunswick – Section 207 of Municipalities Act o P.E.I – Section 23 of Municipalities Act o Nfld & Labrador – Section 207 of Municipalities Act, 1999 Local Government Disclosure of Interest Act, 1994 – it was meant to reform the MCIA and to have subjected municipal councillors to more exacting disclosure obligations. It was scrapped finally when the new MA, 2001 was passed. The Municipal Conflict of Interest Act (MCIA) Generally • • applicable to members of a municipal council and to members of “local boards” (broadly defined in s. 1 of the MCIA). Note: it’s not just elected members of council. • not applicable to municipal staff or administration MCIA sets out an ethical framework for when participation in local government decision-making is appropriate 60 • • Purpose – to protect the public interest intent – to prohibit any member of municipal council or a local board (including a school board, a police services board & a committee of adjustment) from having any “involvement” in any matter being considered by council or local if the member has a pecuniary interest in the matter Legislative goal is to protect the public interest Moll v Fisher (1979) ON Div Ct Held: this enactment, like all conflict of interest rules, is based on the moral principle that no man can serve two masters. Recognizes that the judgment of even the most wellmeaning ppl might be impaired when their personal financial interests are affected. Public office is a trust conferred by public authority for public purpose and the Act, by its broad proscription, enjoins holders of public offices within its ambit from any participation in matters in which their economic self-interest that may be in conflict with their public duty. The public’s confidence in its elected reps demands no less. Purpose • • • • • Enactment of MCIA in 1972 constituted a fundamental change in the approach of the provincial legislature to handling conflicts of interest in the municipal setting The 19th century principle of disqualification was replaced by the dual concepts of disclosure and abstention by members on a case-by-case basis • The principle of disqualification is unrealistic today. There is nothing wrong currently w/ having a conflict of interest. Most people have them. In fact, it is indicative that you have roots in the community. There is nothing that generally precludes a member from being elected if the member has one or more (or even multiple) conflicts of interest BUT they have to adhere to the rules: • (1) You must disclose your interest and • (2) You must abstain from voting on it (Moll v Fischer – If you have a personal interest in the matter and you have a public duty, which one will supercede? It at least raises the suspicion/appearance of bias Essentially, you can have an interest; you just have to recuse yourself from participating in the matter. • But, if you recuse yourself constantly, as one council member from the City of Markham did, you have to wonder at that person’s ability to be representative of his/her constituents. But, that council member kept being elected so… MCIA is about optics and the appearance of bias, it’s not just about outcomes Re Greene and Borins (1985), 28 M.P.L.R. 251 (Div. Ct.) Held: It is of no consequence, in my opinion, what the nature of the effect might be – for his betterment or otherwise – as long as it may be seen by the public to affect that pecuniary interest…The very purpose of the statute is to prohibit any vote by one who has a pecuniary interest in the matter to be considered and voted upon. It is only by strict observance of this prohibition that public confidence will be maintained. 61 Lorello v. Meffe (2010), 99 M.P.L.R. (4th) 107 (S.C.J.) Held: The MCIA governs the conduct of local government members regarding conflicts of interest. It reflects the need for integrity and accountability as the cornerstones of a strong local government system. Halton Hills Town) v. Equity Waste Management of Canada (1995), 30 M.P.L.R. (2d) 232 (Ont. Gen. Div.): Held: The [MCIA] is crystal-clear. It is harsh. It must be. It controls the actions of council members. They are positories of the citizens’ highest trust…They must not only be unshirkingly honest – they must be seen to be so – by those who voted for them and those who voted against them. Mascarin: not so sure that the MCIA is “crystal-clear”. Council Members’ Oath of Office • • • • • Both Municipal Act, 2001 and City of Toronto Act, 2006 expressly provide that a person cannot take a seat on council until the person makes a declaration of office Declaration of office is a standard form established by the Minister of Municipal Affairs and Housing Third declaration: 3. I will disclose any pecuniary interest, direct or indirect, in accordance with the Municipal Conflict of Interest Act. Requirement to abide by the declaration is a personal obligation of every member of council Almost every municipality has training for their councilors re: conflict of interest. Meaning of conflict of interest • common meaning: “a situation in which a person has a private or personal interest sufficient to appear to influence the objective exercise of his or her official duties as, say, a public official, an employee, or a professional" • MCIA meaning: direct, indirect or deemed pecuniary interest • But, there is no definition of “direct” or “indirect” in the MCIA • It can be pos’ve or neg’ve in value to the member (e.g. Can be an interest in which the member could gain something or would lose something like property value. Like if a sewage treatment facility was going to go in near your house). • Point is, it is very scoped interest: pecuniary only. It is not what people typically think it is when they think of conflict of interest. • A lot of ppl have criticized the statute, saying pecuniary interest only? • Note: there is a quorum provision in the act saying that they can go down to two council members. But that could potentially mean that two councilors could be voting on a huge proposal. • Waterloo light rapid transit is a good example. Son of a councilor bought property near where the light rail transit would be located. A surveyor said 62 that property value near the transit stations could go up (up to 30%!). Councilor was very concerned about not being able to vote on that proposal. Mondoux v. Tuchenhagen (2010), 79 M.P.L.R. (4th) 1 (S.C.J.) Held: a pecuniary interest is one that is “concerning or consisting of money…an interest that has a monetary or financial value”. Direct interest • • a direct pecuniary interest is one that expressly or unequivocally has an impact on a member’s finances or property value • member has the interest him/herself impact may be positive (gain) or negative (loss) Moffat v Wetstein (1996) Ont Gen Div Held: a potential interest does not necessarily constitute an interest but where a party, without further conduct on its part, stands to have its financial position affected, a potential interest may be considered a pecuniary interest. But in Tuchenhagen, the court held that pecuniary interest crystallizes when the council member decides to go forward in some way, making the potential interest, into an interest. Court tries to put itself in the mind of the councilor. It was a split decision on the appeal. Mondoux v. Tuchenhagen (2010), 79 M.P.L.R. (4th) 1 (S.C.J.) Facts: In that case, one of the members of council realized that the town might sell a piece of property. Council member considered buying the property. Issue: When did the pecuniary interest crystallize? Was it when it was first brought to council? When he asked a staff member about the piece of property? Put an offer in to purchase the property? This was material b/c he continued to go to meetings and participate w/o disclosing. Held: It went from the Sup Ct to Div Ct and both courts held that the council member had done something wrong. When did s/he decide s/he was going to purchase? It’s from that point that s/he would need to recuse herself. Indirect Interest (s 2) s. 2 of MCIA - where a member (or their “nominee”): o is a director or senior officer of a public or private company o is a shareholder of a private company o has a controlling interest in a public company (>10%) o is a “member of a body” [“body” is not a defined term] o is a partner o is an employee Nominee is not defined. Prof even admits he has no idea. Member of a body? Body is not defined and there has been some recent caselaw about it. If you’re a lawyer and the firm is representing an interest before council, you would then have an indirect interest. Same goes for employee. 63 Deemed interest (s 3) s. 3 of MCIA: o a direct or indirect interest of a: spouse child (regardless of age – can be an adult child) parent o is deemed to be the member’s own interest Limited when you think: best friends, rabbi, priest, aunts and uncles, etc. Exceptions (s 4) • • • Nine specific exemptions and two general exemptions are set out in s. 4 of MCIA: a) as user of public utility; b) entitlement to any service, subsidy, loan or benefit common to other persons; c) purchase or ownership of debenture; d) deposit with municipality; e) interest property affected by Drainage Act works or local improvements; f) interest in exempted farm lands; g) eligibility for election to fill vacancy; h) director or senior officer of municipal corporation; i) regarding allowance, remuneration, salary or benefit for being a member; j) interest in common with electors generally; k) remote or insignificant interest as not likely to influence the member’s decision. Everyone tries to shoe horn themselves into (j) and (k). So it has rec’d the most judicial consideration. He is currently dealing with (i) with respect to a mayor who overspent his office budget. The member has an exception b/c you’re allowed to participate in something w/ respect to an allowance, renumeration, salary, or benefit etc. by virtue of you being a member of the office. But his mayor overspent for 3 years running and was asked to repay it. He thinks the mayor doesn’t fit in the exception. Here, it’s been established he has overspent. He can vote on the office budget. But he can’t vote on whether he is supposed to pay it back. s 4(j) interest in common with electors generally/community of interest Greene v. Borins (1985), 28 M.P.L.R. 251 (Div. Ct.): Facts: council voted on development proposals for lands very close to properties owned by councillor’s father. Held: the properties were close enough to the development that they would be affected by the development. Key Holding: the pecuniary interest of the member was held not to be an interest in common with the electors generally since the family’s parcel was of a physical size and location as to readily lend itself to redevelopment, a factor that distinguished it from the landholdings of individual homeowners in the area. Mascarin: This is a very fact-specific determination. Alternatively, the property may have been so small that you may have been limited by what you could do with it and the 64 court might have held the other way, irrespective of the fact that it might have been useful to a developer assembling parcels. Factors militating against a finding of “community of interest” the member stands to enjoy personal profit not shared by other members of the community; there exists an indirect pecuniary interest in avoiding potential competition; a benefit to one group in the area may represent a detriment to others in the same area, etc. interest in common doesn’t have to be in common w/ all members of the M. s. 1 of MCIA: “interest in common with electors generally” means a pecuniary interest in common with the electors within the area of jurisdiction and, where the matter under consideration affects only part of the area of jurisdiction, means a pecuniary interest in common with the electors within that part. An interest in common generally does not always mean the entire municipality. Summary: if the pecuniary interest of the member is different in kind, not merely degree, from that of other ratepayers in the area under discussion, the exception of “interest in common” will likely fail (Greene v Boirns). Q: How does an LRT not get captured by this? Prof: a lot of members of council (large regional council – 34 members) didn’t want to make a decision and declared a conflict. In a sense that is abdicating your responsibilities. Note: **Courts really don’t want to find a COI and are LOATHE to remove a member from office. s 4(k): Remote or insignificant interest • • the relationship between the member and the subject matter must be so indirect or trivial that it leads to the conclusion that potential personal gain was not a motivating factor in the member’s decision making objective test D’Arcey v. Mino (1991), 4 M.P.L.R. (2d) 26 (Ont. Gen. Div.) Held: the fact that the value of the pecuniary interest is particularly small does not serve to relieve a member from compliance with the MCIA. Moll v Fischer (1979), Ont Div Ct Facts: members of a local school board whose spouses were employed as elementary school teachers voted on a secondary school contract Held: members’ interests were not remote or insignificant as there was a real connection between the two contracts, establishing a predictable relationship between them Mascarin: is the test objective or subjective? He thinks it’s subjective. 65 Test: fact specific Whiteley v. Schnurr (1999), 4 M.P.L.R. (3d) 309 (Ont. S.C.J.) Test: Would a reasonable elector, being apprised of all the circumstances, be more likely than not to regard the interest of the councillor as likely to influence that councillor’s action and decision on the question?” Craig v AG – mayor of Cambridge brought it to court – did he have an obligation under the act to recuse himself? Amaral – school board trustee really concerned about her consituents in the area and that is why she attended. Marcarin: wouldn’t a council member always make that argument? Wording in the test – consider all the circumstances. This comes up in McCallion. Duty of Disclosure – s 5 • • • • duty arises at the meeting at which the pecuniary interest is to be discussed member must: • disclose the interest; • the general nature of the conflict (doesn’t have to get into the nitty gritty details); • not take part in any discussion or vote on the question; • not try to influence the vote either before, during or after the meeting • Note: after the meeting is included because a vote might not have yet taken place. absence from a meeting does not constitute a declaration (the member should declare the conflict at the next meeting at which he or she is present) Usually, once the meeting has been properly convened, generally people will ask, “are there any declarations of COI?” at the top of the meeting. Disclosure must be precise Kazowski v. Rexe, (1987) 38 M.P.L.R. 59 Facts: a councillor member disclosed that his uncle was the president of a firm that was seeking a rezoning. Member failed to mention that he would personally benefit from a rezoning by receiving a “finder’s fee” if the property was sold, which was in turn based upon the success of the rezoning application Held: member was found to have contravened the MCIA Disclosure must be made even if member if voting against their own interest Re Jackson and Wall (1978), 21 O.R. (2d) 147 (Co. Ct.) Facts: a council member voted against a resolution approving a new arterial road to relieve traffic on a street upon which he resided. Held: Despite the fact that he voted against the motion (and seemingly on its face, contrary to his own personal interest), the member had breached the MCIA because he failed to declare an interest and voted in the matter. 66 Requirements Four Obligations 1. Disclosure: • members must disclose any direct, indirect or deemed pecuniary interest prior to consideration of matter • disclosure should include the following two components: • identify the type of pecuniary interest that the member has in all circumstances (direct, indirect, deemed) • describe sufficient facts to provide some context for the general nature of the interest at hand 2. Non-Participation: • a member is obligated to not participate in the decision-making process once the member’s interest has been disclosed • a member shall not: a) take part in discussion, or b) vote 3. No Influence: • a member declaring an interest cannot: a) in any way b) attempt to influence voting c) either before, during or after the meeting 4. Exit Closed Meeting: • if the conflict arises at a closed or in-camera meeting, a member is also required to leave the meeting • this is good practice even if the meeting is not closed as it visibly demonstrates that the member is making no attempt to influence the discussion or the outcome of the voting while at the meeting • s 239(2), MA – council can go into closed meeting to consider certain subject matters. If you have a conflict, you must exit the meeting. • *must make sure the clerk makes note of the fact that you have left the meeting. How and when to disclose • must disclose at any regular or special meetings • generally at the start of any meeting, not just the first meeting • if a meeting is missed, then disclosure must be at the next meeting that member attends • on any related motions Record of Disclosure – s 6 Declaration must be made so that there is a record of it. • s. 6 of MCIA: • clerk or board secretary is required to record in minutes of the meeting (both open and closed): • the declaration of the conflict • that the member left the meeting (in a closed meeting) • if member is absent from meeting, member must declare conflict at next attended meeting 67 Quorum • s. 7 of MCIA – quorum deemed constituted • where number of members are disabled from participating due to MCIA, “the remaining number of members shall be deemed to constitute a quorum, provided such number is not less than two” • if less than 2 members, council or local board may apply to a judge for an order that council or local board may consider matter • Council or local board may still make a decision w/ only one member if they apply to the court to do so. But it might be found to be inappropriate for good local governance. 68 Assessment Analysis Do I have a direct, indirect or deemed pecuniary interest in a matter being considered at a meeting? No: Consider the Matter Yes: Are there any exemptions in section 4 that may apply? Yes: Consider the matter. No: Before the meeting: Do not attempt, in any way, to influence the voting At the meeting: Prior to consideration of the matter, and the pecuniary interest and the general nature thereof After the meeting: Do not attempt, in any way, to influence the vote If you change your mind about whether you have a conflict after you’ve already declared one, you are cleared once you get a legal opinion saying that you do not have a conflict and can vote on the matter, etc. 69 Alleged Contravention What if someone does participate when they have a pecuniary interest? An elector must bring an application before a judge of the Superior Court of Justice within 6 weeks of the conflict having come into his or her knowledge [s. 9] – short fuse limitation. Enforcement is only by private application by an elector; no ability for a municipal council to bring action against a member or to fund the action of a private elector Action can be brought against current or former members Ultimate limitation of 6 years from date of contravention to bring an application (s 9) Hervey v. Morris (2013), 9 M.P.L.R. (5th) 96 (Ont. S.C.J.) Test: reasonable subjective belief. when did you have a reasonable subjective belief that there was a contravention of the act? Facts: Morris is the former mayor. Hervey alleged that she voted on a litigation claim in which she would be the plaintiff. Hervey alleges he only knew he had a claim when George Rust D’Eye gave an opinion to the council that council could vote to pay for a defamation suit funding litigation (Casey Hill v Church of Scientology – province stood behind Casey Hill against a councilor who has been libeled or slandered). Because he knew way before he brought the claim that he could have brought the claim, it was thrown out. Penalties for Contravention • a member who has been found to have contravened the MCIA may be subject to the following sanctions: o seat vacated (automatic if breach of MCIA is found to have occurred and no saving provisions apply) – this is a requirement under s 10(1)(a) and is automatic, the judge has no discretion – the seat must be vacated – unless one of the saving provisions apply. o disqualification from holding office as a councillor for up to 7 years o restitution of financial gain, if applicable a member cannot be suspended Re Verdun and Rupnow (1980), 30 O.R. (2d) 675 (Co. Ct.) Held: MCIA is considered punitive in character, since breach carries with it the potential loss of democratic rights. Saving Provisions (s 10) • s. 10 of MCIA contains provisions that excuse a contravention of the statute by a member if the contravention is due to: • “inadvertence” (made a mistake) or • “an error in judgment” 70 • • • “inadvertence” and a good faith (“bona fide”) “error in judgment” are mutually exclusive – how could you plead both? Ford did. It must be a good faith error in judgment which suggests that you received a legal opinion. Getting a legal opinion will often insulate the council member from the MCIA. saving provisions will apply so that: • member’s seat will not be vacated • member or former member will not be disqualified • however, restitution may be ordered if gain resulted to member or former member from contravention Appeals – s 11 s. 11 of MCIA contains a narrow/limited as-of-right appeal to the Ontario Divisional Court from an order under s. 10: 11(1) An appeal lies from any order made under section 10 to the Divisional Court in accordance with the rules of court. (2) The Divisional Court may give any judgment that ought to have been pronounced, in which case its decision is final, or the Divisional Court may grant a new trial for the purpose of taking evidence or additional evidence and may remit the case to the trial judge or another judge and, subject to any directions of the Divisional Court, the case shall be proceeded with as if there had been no appeal. A judge would only make an order where there is a contravention. If a judge finds no contravention, there is no right to appeal (s 11(1)). o If, at first instance, the court held Ford hadn’t breached the Act, Mr. Magder would have had no appeal right. It is a limited right. It looks like only a respondent can appeal. And then you can’t go to ONCA b/c the Div Ct limits the right to appeal (s 11(2)). Standard of Review • Tuchenhagen v. Mondoux – majority determined that broad language of s. 11(2) permitted Divisional Court to hear appeal as hearing de novo given the important and distinct role the MCIA plays in the accountability framework for local government in Ontario. This conflicts with what the Div Ct found later in Amaral. Different decisions from same level of court. • Amaral v. Kennedy – unanimously preferred the dissenting opinion in Tuchenhagen: o “Notwithstanding what might be regarded as invitational language … appeal courts refrain from hearing cases de novo” • s. 11(2) of the MCIA does not justify a non-deferential approach to the original decision Consequence of Contravention • s. 12 of MCIA: • a failure to comply with s. 5(1), (2) or (3) does not, in itself, invalidate any proceedings in the matter 71 • • • Just b/c a member voted on something where they had a conflict, the decision is not voidable. It is only voidable if the municipality or local board decides to expunge it. However, the proceedings are voidable at the instance of the municipality or of the local board • Proceedings will not be voided if to do so would adversely affect the rights of any person acquired under or by virtue of the proceedings who acted in good faith and without actual notice of the failure to comply with s. 5 limitation - two years from the date of the passing of the by-law or resolution authorizing the matter What can members do to demonstrate compliance and good faith • members should read & understand the statute • members should be informed of the affairs of: • spouse • children • parents • corporations • partners • employers to the best extent possible in order to identify any indirect and deemed pecuniary interests Is it a complete code? Harding says yes, Mississauga Inquiry says no • s 13: 13. Proceedings to declare a seat vacant or to disqualify a member or former member for conflict of interest, or to require a member or former member to make restitution where a contravention has resulted in personal financial gain, shall be had and taken only under this Act. Conflict resolution provision b/w this Act and any other Act – s 15 15. In the event of conflict between any provision of this Act and any provision of any general or special Act, the provision of this Act prevails. Introduction of First Reading version of Municipal Conflict of Interest Act, 1972: “This is an important piece of legislation which embodies a new code to govern the entire field relating to conflicts of interest as they may arise in relation to members of municipal council and local boards.” Harding v. Fraser (2006), 23 M.P.L.R. (4th) 288 (Ont. S.C.J.): Held: “The Municipal Conflict of Interest Act is a specialized statute and comprises a complete code dealing with conflict of interest.” 72 Mississauga Judicial Inquiry • Judicial inquiry requested by Mississauga City Council pursuant to s. 274 of Municipal Act, 2001 • Two broad areas to be investigated: • Enersource Hydro Mississauga shareholder agreement • Close personal friend of Mayor McCallion. • Conflict of interest involving Mayor’s son and his failed attempt of his company to acquire 8.5 acres of land in Mississauga city centre in order to develop a hotel, convention centre and condominium development that Hazel McCallion had advocated for 20 years to try to get • She had declared a conflict but went on to hold a number of meetings about it • Updating the Ethical Infrastructure was released on October 4, 2011 Justice Cunningham’s report “…the Municipal Conflict of interest Act (MCIA) does not constitute a complete codification of the law governing conflicts of interest for members of municipal council. The common law also applies. The MCIA is restricted to pecuniary interests of members of council in the deliberative and legislative contexts but the common law is much broader and recognizes conflicts of interest involving non-pecuniary interests.” Mayor McCallion did not breach her statutory duties under MCIA but she did have a real personal conflict of interest and breached her common law obligations Justice Cunningham’s “Ruling on Conflict of Interest” (July 8, 2010) – Appendix J: “Councillors (and staff) are not to use their office to promote private interests, whether their own or those of relatives or friends. They must be unbiased in the exercise of their duties. That is not only the common law, but the common sense standard by which the conduct of municipal representatives ought to be judged.” o Basically holds that conflict of interest applies in much broader circumstances than the mere declaration of pecuniary interest outlined in the MCIA and that other relatives and friends should also be included. Held that this is what the common law requires. Two years later, these recommendations still have not been enacted. Hazineh v. McCallion Facts: application brought by resident seeking to have Mayor McCallion removed from office for violating the MCIA by voting on a matter at regional council. Mayor’s son had equity interest in company which was involved in a development proposal for a hotel convention centre in downtown Mississauga. Mayor was alleged to have seconded a motion and voted on an amendment to a development charge by-law (in which her son had a pecuniary interest) and therefore she had a deemed interest. Held: June 14, 2013 - Sproat J. determined that the mayor did not violate the MCIA "a reasonable elector would not regard the deemed financial interest of Mayor McCallion as likely to have influenced her vote” - s. 4(k) applicant did not file application within six weeks of learning about the mayor's actions on council, in accordance with s. 9 of the MCIA 73 son could not have benefitted from regional council vote because his company could not have received benefit from lower development charges Magder v Ford Facts: • Complaint filed: former Councillor Ford breached the Councillor Code of Conduct by soliciting donations from city lobbyists to the “Rob Ford Football Foundation” using City of Toronto letterhead and envelopes • Integrity Commissioner investigated and found Ford had contravened the Code of Conduct – recommended that Ford personally repay total that was donated: $3,150 • City council passed resolution in August 2010 requiring repayment by Ford (which he actually voted upon – against it, obviously) • Integrity Commissioner sent Ford 6 letters asking him to comply over two years – • Ford did not reply to her but wrote to and asked the lobbyists if they wanted money returned • January 2012: Integrity Commissioner reports that Ford has not complied with council order and seeks “proof of reimbursement” by specified date • February 7, 2012: at council meeting, Ford speaks to the report (making an incredibly impassioned plea – it’s all for the kids!) and then votes a motion to overturn council’s order that he repay $3,150 to lobbyists • Then his good friend moves a motion to rescind the order by council and Ford voted on it. • Toronto elector Paul Magder commences application that Ford breached s. 5(1) of MCIA and seeks his removal from office Ford’s argument: defence: the MCIA does not apply to violations of Code of Conduct city council had no authority to impose penalty of personal repayment under Code of Conduct or City of Toronto Act, 2006 s 4(k) exception – remote or insignificant and unlikely to influence Ford s 10 – saving provisions applicable: inadvertence and error in judgment Test for the stay: serious issue? Balance of convenience? Irreparable harm? (Ford will say yes, to me as member of council, to council as a whole, to the TO electorate). Stay was granted on the spot. Justice Hackland held: Mayor contravened s 5(1) of the MCIA and s 10(1)(a) required him to declare his seat vacant. Ontario Superior Court of Justice no basis for excluding application of the MCIA to Code of Conduct matters council resolution was not ultra vires the City re: “other actions” as enshrined in Code of Conduct* 74 interest not remote or insignificant (s 4(k)) – look at his impassioned plea! It was significant to him obviously contravention not inadvertent or by a bona fide error in judgment (s 10(2)) – held that Ford was willfully blind to the MCIA by refusing to inform himself of it and by not going to the training Ford’s seat as mayor declared vacant for “current term” (subsequently corrected by Hackland RSJ) Appeal (as of right, pursuant to s 11 of the MCIA) on error of law: Ontario Divisional Court All three members are conservatives. There are three other members of the judiciary who were former municipal lawyers and had experience but none of them heard this case. Held: Justice Hackland correct on all grounds except with respect to authority of City to impose personal repayment obligation on Ford There are only two penalties possible under City of Toronto Act, 2006 for breach of Code of Conduct o Therefore city council’s decision to require Ford to personally reimburse the improperly solicited funds was made without legal authority Original decision is thus a nullity – therefore Ford had no pecuniary interest when he voted for motion to rescind Mascarin: The court neglected that you can attack municipal decisions through applications to quash. That is what Ford should have done if he did not agree w/ counsel’s resolution – brought an application to quash or asked for JR. He did not. Under this decision, the court allowed a collateral attack of counsel’s resolution by striking it via Ford’s defence. Collateral attacks on bylaws now seem to be okay based on this case because the resolution passed by council was attacked and declared a nullity. Conclusions • • • • • • • • Harsh penal statute. Judges do not want to remove elected people from office conflict of interest in MCIA is not nearly as broad as general public likely thinks it is pecuniary (financial) interest is key positive & personal duty of members to declare conflict large number of exemptions significant sanctions (including loss of office) saving provisions for inadvertence and error in judgment abundant & at times contradictory caselaw How can you tell when you have a conflict of interest since Ford? • The threshold: • Pecuniary interest used to equal a financial interest. • Now a pecuniary interest must be a “real” one; a lawful matter (removes the presumption of validity that is normally accorded to municipal decisions – Eng said decisions of council are presumed valid until they are overturned.) • This comes into direct conflict w/ administrative law concepts 75 • What about procedural fairness? Seems there is not one for members of council who are charged w/ a conflict 76 Land Use Planning History and Overview of Land Use Planning 1. What Is It? o A system of rights and entitlements respecting real property (it’s not about buying or selling the land, it’s about what you can do with it) 2. Why do we need it? o Conflicting uses: cottage versus quarry o Economic and social realities at the turn of the 20th century Dangers of uncontrolled development Need for proper infrastructure: roads to move product, etc.; parks; schools; etc. Rights vs Regulation Euclid (Village) v Ambler Realty Co o Keep in mind: you have a right in your property. How can the government tell me what to do with my property? Euclid (Village) v Ambler Realty Co., 272 US 365 (1926) Facts: Euclid wanted to regulate land use in their suburb of Cleveland. Ambler wanted to use their land for commercial uses. Claimed that the zoning ordinance from Euclid was a violation of their property rights. Held: There was sufficient reason to adopt the ordinance and it was a justified use of their valid authority. Communities need to facilitate a social connection, public safety, recognize the value of the human interest in peoples’ own lives. One person’s self interest cannot trump the rights of the whole community. Land Use Regulation: Evolution in Ontario There are also public safety concerns with conflicting land uses So we need a system to regulate land use Section 92(13) of the Constitution Act, 1867: • Delegates power over “Property and Civil Rights” to the provinces • Never forget the feds are always there. The feds maintain authority over navigable waters (when you do waterfront work, you have to remember this), telecommunications, aviation (think: airports), etc. so they can come back into play. Provinces push it down to municipalities but retain overall authority 1. The Provincial Role in Land Use Regulation • Statutory Authority to Conduct Land Use Planning • Planning Act – can’t do anything w/ land or property w/o running into the Planning Act • Municipal Act – has consolidated some of the power with respect to the Planning Act 77 • Provincial Plans: Greenbelt Act, Places to Grow Act, Ontario Heritage Act, Environmental Protection Act, Development Charges Act – retention of provincial power over land use planning. 2. Matter of Provincial Interest (can be declared under the Planning Act) and Provincial Plans • Planning is not only a local function, land use regulation has not been exclusively delegated to municipalities • Planning Act s.2: Matters of Provincial Interest • Planning Act s.3(1): Policy Statements • Planning Act s.3(5) Decisions shall: • Must “be consistent with” Provincial Policy Statements (PPS) – high level planning policy statements setting out different uses, the way different uses will interact, source water, the environment, etc. • PPS – new policy statement coming out in 2014 (April 30) and municipalities will have to be consistent with that. land use planning is a marriage b/w legislation and policy • Must “conform with” or “not conflict with” Provincial Plans (as defined) The Planning Act, Land Use Approvals and the Ontario Municipal Board The five key players 1. The Landowner • Only a minimal amount of land development can occur without obtaining an approval from a municipality or approval authority. • Generally the landowner initiates the process and decides the framework of what they want to do (e.g. developers will have ‘expertise’ in residential, retail, etc.) 2. The Municipality • Prepares policy documents known as Official Plans, which guide future growth (guides which land uses are permitted) • Implements Official Plans through Zoning By-laws and other By-laws. 3. The Province • Exclusive Constitutional Jurisdiction. • Matters of Provincial Interest, Provincial Policies and Plans, • Ministerial Zoning Orders – big hammer to change the use of land. Province can w/o significant notice, institute one of these. Where there is significant outcry, the province will step in to prohibit some things. • E.g. allowed a neighbouring building to be used during the investigation of the mall that collapsed. Minister stepped in to determine a quarry would not go in in Hamilton. 4. The General Public • Land development is a public process • This is where the politics come in. The decision-makers at the municipality are public officials. When people hate a new project, the 78 local councilor will think twice, no matter what is happening from a planning perspective before voting to support it. • Planning Act does not allow municipalities to stall. • Public can influence political decisions and appear at the OMB 5. The Ontario Municipal Board • Independent – not an arm of the government (gov can bypass it in certain situations but they cannot direct the board to decide one way or the other) • Quasi-Judicial – like a court (rules of evidence, witnesses, decision rendered) but the rules are somewhat relaxed. • Administrative – doesn’t have to follow precedent • Despite the fact that sometimes the facts seem similar, the OMB is taking into account good planning and the public interest and that may change. • Tribunal • Cloverdale Shopping Centre Ltd. v. Etobicoke (Township), [1966] 2 O.R. 439 (C.A.) Cloverdale Shopping Centre Ltd. v. Etobicoke (Township), [1966] 2 O.R. 439 (C.A.) Facts: Developer wants to build the mall (Sherway). Who didn’t want this mall built? Yorkdale. Case shows what the OMB does and what its powers are. Held: An action b/w parties is not a lis – if I am Sherway and I want a mall and Yorkdale says no way, the Bd looks not only at the argument/evidence of the two parties but also beyond that at what is good planning to determine what is in the public interest. Board was w/in it’s jurisdiction when it accepted the change. Board must consider the safety and welfare of the public. Land Use Planning Approvals Pursuant to the Planning Act 1. Official Plans and Official Plan Amendments (s.17 and s.22) 2. Zoning by-laws and Zoning By-law Amendments (s.34) 3. Site Plan Control Approvals (s.41) 4. Minor Variances (s.45) 5. Plan of Subdivision Approvals (s.51) 6. Consents to Sever (s.53) Simplified Development Approvals Process (Framework) The simplified private land development application process under the Planning Act for Official Plan Amendments and Zoning By-Law Amendments generally involves: 1. Complete Application 2. Review, Discussion, Public Notice and Public Meeting 3. Municipal Decision (or Lack of a Decision – refusal to make a decision for 180 days means you gain a right to appeal) 4. Opportunity to Appeal to OMB – public can appeal an approval, or the developer can appeal an approval 5. Public Notice of an OMB Hearing 6. OMB Hearing 79 • There is the ability for the Board to order a dismissal w/o a hearing (motion to dismiss). They still hear the motion. Example: Sometimes there are cases where they oppose for non-land-use planning reasons. If the appeal is frivolous/vexatious, it will be dismissed. If there is an appeal to simply delay the development, it will be dismissed or if it is an appeal brought by a litigant who is found to be a sort of vexatious litigant. Or maybe they are just trying to slow down development. • You can only appeal if you participate in the municipal decision and you must have a demonstrated interest in the project. • Minister can declare a matter to be of provincial interest – Board has the hearing but afterwards, instead of the OMB making the decision, it goes to Cabinet. Decisions can sit there for quite awhile. 7. Potential for Review by the Courts on an Error of Law Zoning By-laws and Zoning By-law Amendments (s.34) • If the M is going to disapprove it, they do not have to through the public process but if they do approve, they must engage the public. • Amendment to a zoning bylaw stays with the property and becomes part of the site specific zoning bylaw • Sometimes there are amendments that extend city-wide Eg. For every one bedroom, you need two parking spots. Well, they can amend the bylaw and change it for the whole M or an area or just one person. • Province can declare a provincial interest and the Minister will decide Bonusing (s 37, Planning Act) • Planning Act allows that where you are getting a significant increase in the height or density of the property within your proposal (COTA outlines specific heights and densities), then the M can ask you to contribute towards community benefits and facilities Non-conforming Uses • If a zoning bylaw passes or is amended and it affects your area, you can keep using your property as you were • When you are looking at the use, it does not have to be the exact same use (Country and Western Bar) • Expand your use – might want to take up more space for your hog slaughter operation. You can do that as long as the use stays roughly the same. • Contentious – must prove it was legal and it existed as legal. It’s the landowners (not the municipality) who must prove it pre-existed, it was legal and worked within the zoning of the time AND that it continued (that’s where it gets really problematic – how do you actually go back and prove it?). 80 Country and Western Bar, SCC Facts: change which would no longer permit the use as a bar, owner sells it to someone who wants to use it as a strip club. SCC says it’s the same use. Country dancers, nude dancers, samesies. Held: uses are not so narrow as to say it must be the exact same use. It’s a spectrum. You look at the remoteness and the effects of the use to determine. Minor Variances (s 45, Planning Act) You want to do something that you are not permitted to do under the zoning bylaw. So you apply to the Committee of Adjustment (appointed by the M). • As interpreted in case law, section 45 of the Planning Act invokes a four-part test that must be passed before a variance will be granted: 1. The variance must be minor – don’t want people who should be getting a re-zoning to be in front of them 2. The variance must be desirable, in the opinion of the committee, for the appropriate development or use of the land, building or structure. 3. The variance must maintain, in the opinion of the committee, the general intent and purpose of the zoning by-law. 4. The variance must maintain, in the opinion of the committee, the general intent and purpose of the official plan. This is the ‘wild west’ of planning law. Vincent v De Gasperis – analysis of the four-part test Facts: He wanted to build a very large house. He went to the Committee of Adjustment. He is successful with some of his variances but not all. He goes to the Board and the Board approves. Court held: • “Minor” = some variances are just too large or too important to be considered “minor”. • Desirable = subjective/objective. Is it appropriate to the property, the planning and public interest POV? • Zoning bylaw/OP intent and purpose = there must be an analysis against this (but most in the committee of adjustment just pay lip service to it) • The word “may” is included in the Planning Act, because of that word, there is some ability for the Committee to still refuse, even where all the tests are met. • Smart to talk about why the variance is needed/necessary Site Plan Control Approvals (s 41) An M can set out a site plan control bylaw for certain areas or the entire M. Often single family homes are exempted but it sets out what the M expects to know when you build. What becomes important is that there are certain requirements where your private lands will have to connect with public lands. A lot of these deal with how you are going to interact with your neighbours and the M. 81 Example: Something that often comes up is highway (road) widening. There has to be a way to obtain slivers of land to widen the road. The M can do this by exchanging the sliver for development rights so long as they set it out in their OP. Also relevant for things like sewer capacity and stormwater management. • In a site plan control area, the landowner may have to provide to the satisfaction of the municipality: a. Highway widening; b. Access ramps, curbing, and traffic direction signs to facilitate access; c. Access driveways and parking; d. Walkways, ramps, and other means of pedestrian access, including disability access; e. Lights; f. Landscaping; g. Storage areas of garbage and waste materials; h. Easements for land drainage works, sewer facilities and other public utilities; and i. Grading to facilitate the disposal of storm or waste water. j. Provided at the owner’s expense and enforced through agreement. Metropolitan Separate School Board v. Scarborough (City) (1988), 34 M.P.L.R. (2d) 149 (Ont. Gen. Div.) Facts: portables. School Bd entered into a site plan agreement w/ them M for the portables. It was in the site plan agreement that the portables would only be there for 3 years. School board then wanted to keep the portables. School Board said, under the Planning Act the M went beyond the scope of what they’re permitted to do because the M only permitted the portables for 3 years. Issue: Does the Planning Act allow an M to place time limited restrictions on the Site Plan Approvals it gives? Held: An M cannot place time restrictions on Site Plan Approvals. Criticism: School Board agreed to the 3 year time limit! But, actions are not simply a lis b/w the parties, there are factors outside that must be considered. Plans of Subdivision (s 51) Permission to divide land. • Central Goals o Land Owner: Separate conveyable lots that people want to buy. o Municipality: Creation of a properly serviced community including roads, parks, schools, and infrastructure. There is a clear connection b/w the developer receiving the approval needing to be balanced w/ the M’s ability to service the area • Subdivision Approval: o Permission to create conveyable lots with appropriate infrastructure. o A combination of a number of items: Draft plan of subdivision s.51(24): a map outlining what the development will look like 82 Condition of Subdivision Approval s.51(25): conditions require the developer to do things like build roads, ensure appropriate servicing, etc. – whatever it takes for the subdivision to be properly part of the municipality. The roads will be built by the developer and then will be give to the M. Subdivision Agreement s.51(26): agreement will reference the plan. Consents to Sever (s.53) • Where you want to take one lot and sever it just once. Or really, they’re not intending to create a new ‘community’ area; it’s less than 3 lots usually. • M won’t require a plan of subdivision. • This is before the Committee of Adjustment. Mills v. York (Reg. Municipality) Land Division Committee (1975), 9 O.R. (2d) 349 (Ont. Div.) Facts: Developer didn’t want to agree to the condition (condition was to pay). Challenged the M’s ability to impose the condition. Held: You pay fees to get a severance. Conditions on development approvals generally under the Planning Act must in some way be connected to the development approval that is granted. For subdivision, it’s such conditions as are reasonable in the context of the development. With respect to a site plan, it has to be one out of the list of 11 things. Height and density? Must be in exchange for some community benefit. Minor variance? Anything the Committee considers appropriate. BUT they all somehow have to be connected with the approval that is granted. Contrast this with DCs, which don’t have to have any specific bearing on the project. Case Study: The Revitalization of the West Don Lands This needed almost every type of approval that we have talked about. City of Toronto decided to turn the Don River and they put fill in the lake to create some of the waterfront. The elbow created a flooding problem. The DVP floods. These lands have number of issues. There is a potential that the DR could flood to Bay street. The lands used to house industry and so had a lot of chemicals (including tanneries and refineries). Essentially the land is contaminated. History of the West Don Lands Province owns the WDL. It is designated the waterfront area. • The WDL thrived as industrial lands in the late 19th and early 20th centuries thanks to its proximity to rail and port • Former home of the Gooderham & Worts distilleries (now the Distillery District), tanneries, soap manufacturers, brick and lumber yards, and pork producers (hence Toronto’s nickname “Hogtown”) • Gooderham & Worts and Canada Packers (pork producers) were the largest companies of their kind in the British Empire • The area also housed thousands of workers, often in substandard conditions 83 The Goal: Waterfront Revitalization • Toronto Waterfront Revitalization Corporation (“TWRC”) formed pursuant to the Toronto Waterfront Revitalization Corporation Act, 2002, S.O. 2002, Chapter 28 (“Act”) • According to s.3(1) of the Act, the TWRC’s objectives are to: Implement a plan that enhances the economic, social and cultural value of the land in the designated waterfront area and create an accessible and active waterfront for living, working and recreation, and to do so in a fiscally and environmentally responsible manner; • WDL is part of the Designated Waterfront Area covered by the Act What approvals do you need to transform this land away from what it was to something more in like with s 3(1) of the Act? Part 1: Official Plan Amendments • Prior to the creation of the TWRC, the “King Parliament Part II Plan” encouraged revitalization of the WDL while addressing a number of challenges including: Flood protection Environmental contamination Lack of appropriate infrastructure Lack of community facilities City of Toronto Central Waterfront Secondary Plan • “OPA 257 Adopted by Toronto City Council on April 16, 2003; • further approved in part as modified for the West Don Lands in 2005 by OMB Decision/Order No. 3227; further approved in part as modified for the First Waterfront Place lands in 2007 by OMB Decision/Order No.1905; further approved in part as modified for lands on south side of Queens Quay East in 2007 by OMB Decision/Order No. ----” • The Central Waterfront Plan is built on four core principles. These are: • Removing Barriers/Making Connections • Building a Network of Spectacular Waterfront Parks and Public Spaces • Promoting a Clean and Green Environment • Creating Dynamic and Diverse New Communities Part 2: Zoning By-law Amendments Attempted to do it all at once but the City insisted on doing it in pieces. • Essentially what they had was large blocks designated for industrial use. • 2006 was the first zoning approvals • At first they proposed two large development blocks. This was controversial. They got H holding symbol – allows you to zone land but not use it until a certain number of issues are addressed. Here is was: o Flood protection o Environmental contamination o Lack of appropriate infrastructure o Lack of community facilities These were to be obtained by subdivision approvals. 84 Part 3: Plans of Subdivision • Official Plan designations are in place and the lands are appropriately zoned (with holding symbols) • Major issues still remain and must be resolved, including: Flood protections; Environmental contamination; Lack of infrastructure; and Lack of community facilities. Subdivision approvals and agreements will assist in resolving these issues Part 4: Pan-Am Games • Introducing the Pan Am Games Athletes’ Village to the WDL required permission for unconventional land uses on a short-term basis Pan-Am Games: Temporary Use • By-law 1592-2012: Puts in place temporary permissions for the land uses necessary to host the Athletes’ Village. • The “uses” include: Athletic residences, fields, and facilities; Public gathering places and bus depots; Medical, media and security facilities; and Dry cleaning and laundry shops. • 1592-2012 expires 3 years after its passing on 29 November 2012 - meaning on 30 November, 2015, the WDL reverts back to its governing by-law unless the City renews the By-law. 85 Heritage Act Overview of the Ontario Heritage Act Heritage Designation & Protection • • • • property usually qualifies for protection if it is of historical or architectural value or interest now extended to include property with cultural heritage value or interest heritage importance – generally evaluated by determination of heritage attributes • There has been a change from historical/architechural value to cultural heritage value or interest. The terminology has changed from what it used to be. • Heritage importance is most typically evaluated by standards set out in regs under the Ontario Heritage Act protection is usually afforded by way of a formal designation of a heritage property and/or heritage easement agreement Ontario Heritage Act • • • original general heritage legislation was enacted in Ontario in 1974 • City of Kingston in particular wanted to protect some of its heritage buildings and applied to the province for them to pass legislation that would only apply to them • Some other cities caught on and passed bylaws • Then the Ont gov decided to introduce the OHA Bill 60 – An Act to Amend the Ontario Heritage Act, received Royal Assent in April, 2005 • intended to “strengthen and improve heritage protection” in Ontario • most comprehensive amendments since the original Ontario Heritage Act was first enacted in 1974 • result of consultative process which saw Bill 60 considered in Committee over a number of months Does not give a right of public use to the property St. Peter’s Evangelical Lutheran Church v. Ottawa (City) (S.C.C.) Held: The Ontario Heritage Act, 1974 was enacted to provide for the conservation, protection and preservation of the heritage of Ontario. There is no doubt that the Act provides for and the Legislature intended that municipalities, acting under the provisions of the Act, should have wide powers to interfere with individual property rights Recall: Ambler argued the same thing w/ respect to zoning rights. Zoning/land use planning has a societal benefit, which will trump private property rights – acknowledgment that there is tension there and sometimes society trumps. Dodd v City of Guelph said the same thing: 86 Zoning and land use planning legislation at its root has a societal benefit and that will trump private property rights. The OHA says the exact same thing. There is a constant strain b/w land use planning instruments and private individual rights. Statutory mechanisms in the OHA to provide for the conservation of built heritage (i) (ii) (iii) (iv) Part IV – designation of individual properties of cultural heritage value of interest Part V – designation of heritage conservation districts Sections 21 & 37 – heritage easement agreements (Ms and the province may do this) Section 35.5 - building standards by-laws for designated heritage properties (provide for the continued maintenance of the property) Criteria for Evaluation: What qualifies for protection? • • • real property that has “cultural heritage, value or interest” • not just buildings – the City of Oakville wanted to designate some rich guy’s lawn criteria for identification are set out in O. Reg. 9/06 (made under the Ontario Heritage Act): • “design value or physical value” • “historical value or associative value” (Maple Leaf Gardens – Leafs won the cup there, Elvis and the Beatles played there) • “contextual value” must meet only one of the nine criteria to be a property with “cultural heritage, value or interest” Design value or physical value 1. The property has design value or physical value because it, i. is a rare, unique, representative or early example of a style, type, expression, material or construction method, ii. displays a high degree of craftsmanship or artistic merit, or iii. demonstrates a high degree of technical or scientific achievement. Historical Value or Associative Value 2. The property has historical value or associative value because it, i. has direct associations with a theme, event, belief, person, activity, organization or institution that is significant to a community, ii. yields, or has the potential to yield, information that contributes to an understanding of a community or culture, or iii. demonstrates or reflects the work or ideas of an architect, artist, builder, designer or theorist who is significant to a community. 87 Contextual Value 3. The property has contextual value because it, i. is important in defining, maintaining or supporting the character of an area, ii. is physically, functionally, visually or historically linked to its surroundings, or iii. is a landmark. 2005 Legislative Changes • • after extensive consultations, significant changes in the Ontario Heritage Act: • retroactivity of designation • registry of properties of cultural heritage value or interest – has become important because you used to have to get something designated and now, the property could just be put on a list by staff. • finality of council decisions and restriction of appeals to the OMB • Minister’s order (for designation) • building standards by-law can include provisions for someone to maintain a designated heritage property to a certain degree – people used to really let their properties go until it needed to be torn down. Now Ms can build in provisions for maintenance Designation of Individual Properties (Part IV), Council Decisions regarding Permits and Appeal Rights Designation of Individual Properties (Part IV OHA) prior to designation, municipality must give notice of intention to designate to owner of property and to the Ontario Heritage Trust and must publish the designation in a local newspaper o s. All that has happened is that a notice has gone out. There isn’t a designation yet and already, you are stopped from altering. It’s as though designation had already happened. This was fundamentally important for heritage conservationists. property owners have 30 days to file a notice of objection to the proposed designation to council, if council still designates, you then go to the CRB. o objections are heard by Conservation Review Board (“CRB”) o CRB is only an advisory tribunal – it can only make recommendations to a municipal council o CRB must report to council within 30 days of hearing o after considering CRB report, council must pass by-law to designate property OR withdraw the notice of intention to designate o council decision is final - no appeal to OMB there could be a challenge/appeal through an application to quash or JR if the M acting outside of its jurisdiction or the decision was made in bad faith 88 see also “Restricted Appeal Rights” below once the notice is issued any permits previously issued are void (including a building permit) - it is as though the “designation process were complete” and the property had been designated the designation is registered on title Argument: tantamount to expropriation? There has been argument on the other side to insist on the worth of it. o Municipality can expropriate under s 6 MA, 2011. Landowner would say that the M doesn’t need his property. Then there would be a hearing. The inquiry officer could come back and say it is not necessary and the M could still come back and say they are going to expropriate. Same goes for the heritage designation. Notice requirements a. an adequate description of the property so that it may be readily ascertained; b. a statement explaining the cultural heritage value or interest of the property; c. a statement that further information respecting the proposed designation is available from the municipality; and d. a statement that notice of objection to the designation may be served on the clerk within 30 days after the date of publication in the municipality under clause 29(3)(b) Designation Heritage importance of a property is most typically evaluated by standards set out in regs under the OHA Done either through a normal designation by council and/or through a heritage easement agreement Restricted Appeal Rights • OHA also contains limited appeal rights where the municipality seeks to repeal or amend the reasons for designation or where an application to alter a designated property is made: • referral to the CRB for a hearing • CRB reports to council within 30 days • after considering CRB report, council makes final decision • no requirement of subsequent public hearing prior to making decision • no appeal to OMB Appeal to OMB on Demolition Permit • OHA permits an appeal to the Ontario Municipal Board (“OMB”) by owner if municipal council refuses an application to demolish a designated structure • Previously (before 2005), a municipality only had 180 days to consider the application after which the demolition permit was deemed to issue • Did this save properties? No, all they could do is delay the demolition for half a year. What the M could do during that time is try to negotiate. 89 • OHA has removed the 180-day period but maintained a right to appeal to the OMB (who cross appoints to the panel a member from the CRB) • This gives the M some teeth in potential negotiations Retroactivity of Designation • s. 30 of OHA provides for the retroactive designation of individual properties • once notice of intention to designate is issued, provisions of OHA with respect to alteration (s. 33) and demolition (s. 34) apply “as though the designation process was complete and the property had been designated” • significant aspect of the OHA as it provides a freeze on the development rights of property owner while municipality is considering merits of designation Heritage Conservation Districts (Part V) • • • • • • • • Part V of the Act governs the study and creation of Heritage Conservation Districts (“HCD”) municipality can identify area of study, for a period of up to one year (similar to interim control pursuant to s. 38 of the Planning Act) – freezes development for one year by-law establishing study area can be appealed to the OMB council can enact by-law to establish any area of the municipality as a HCD once HCD is established, municipality is required to adopt an HCD plan, following full public consultation • criteria set out in subsection 41.1 of the OHA with respect to the content of the plan section 41.2 provides that no public work may be undertaken or by-law passed which is contrary to the objectives set out in the plan • “contrary to the objectives set out in the plan“ – similar to s 24(1) of the Planning Act – M can’t pass any bylaw/undertake any work that does not comply w/ the M’s OP. • Example: Waterloo – wants LRT. On the day before council was to award the K, a ratepayers group brought a claim that the M could not award K b/c it would commence a step undertaking public work outside of the OP. • Similar thing happened with St Clair West here. The judge has been part of a group trying to stop the LRT and he refused to recuse himself. He had to be removed from the panel. also applies to an individually designated property in a HCD appeal to OMB available for any application related to a property in a HCD (i.e. if municipality refused a building permit or if such permit is granted with conditions) 90 Minister’s Orders section 34.5 provides designation can occur by way of Minister’s Order, after consultation with the Ontario Heritage Trust once notice issued, other permits are void “as though the designation process was complete and the property had been designated” objections heard by CRB which reports to Minister, whose decision is final in the event of a conflict between the Minister’s Order and a by-law, the order prevails to the extent of the conflict Ministers Order – Stop Work • • • section 35.2 provides that the Minister may also issue a stop order – stops any work for 60 days if two criteria are met: • the property may be of cultural heritage, value or interest of provincial significance; and • the property is likely to be altered or damaged or a building or structure located on the property is likely to be removed or demolished no appeal from the Minister’s decision very sparingly used (same with Ministers zoning orders which are rarely used) Heritage Easement Agreements (ss Sections 21 & 37) Positive Covenants Pos’ve covenants in agreements that apply to land cannot be passed down to the next property owner (e.g. property owner and M agree that property owner will build a road and community centre. The law says that, even if the K says that the covenants are binding on all successors, heirs and assigns, the covenant does not run w/ the land – privity of K). Even if the M registers this on title, which gives notice to all future owners – these covenants are not binding on future owners. They do not run w/ the land. The law says, positive covenants not binding on future owners (case that considered it is Amberwood Developments). Two condo towers, with shared maintenance of certain facilities. ONCA said that the covenant doesn’t run w/ the land. So what about Site Plan Control Agreements and Subdivision Agreements? Property Owner and M make a subdivision agreement (under s 51 of the PA), they are registered on title and bind future owners. There are statutory exceptions to pos’ve covenants not running w/ the land – including 37(1) of the OHA. It allows Ms to enter into agreements for heritage conservation in exchange for development permits. You’ll see this often where Ms are allowing redevelopment. Often developers will agree to preserve certain heritage buildings if they get the permits to approve their development. • subsection 37(1) of OHA allows a council of a municipality to “pass by-laws providing for the entering into of easements or covenants with owners of real property for the conservation of property of cultural heritage value or interest” 91 • • private contractual (legal) agreement between municipality and property owner that is registered on title and binds future owners protects the building/structure; requires maintenance; restricts use of building or property • often gives rights of entry to the M to make sure it is being maintained properly Building Standards By-laws for Heritage Properties • • • • • section 35.3 of the OHA contains authority to pass building standards by-laws for designated properties if municipality has passed a property standards by-law pursuant to section 15.1 of the Building Code Act, 1992 enforcement provisions of the Building Code Act, 1992 apply to building standards by-law passed pursuant to the OHA for designated heritage properties purpose is to prevent demolition by neglect a number of municipalities have passed building standards by-laws as authorized by OHA there are two general approaches to these by-laws, both of which are intended to address “demolition by neglect”: • stand alone by-law that applies only for heritage properties • amendment to existing property standards by-laws Municipal Inventory/Registry • • • section 27 of the OHA requires municipalities to maintain registry of heritage inventory registry can include designated and non-designated properties OHA requires property owners provide advance warning (60 days) for municipality of intention to demolish or remove building or structure if listed on the registry and applies to non-designated property Opportunities and Constraints • • Opportunities: • stronger municipal voice in heritage conservation matters – real teeth by allowing Ms to just stop demolition entirely. • direct role for the Province (i.e. Minister’s Orders) • role for the public – broader rights to object Constraints: • no positive obligations on municipalities (other than to maintain register) • continued pressures to balance preservation and development – developers/property owners often ask, who is going to feel the benefit of this? • funding and access 92 Conclusions • • • municipalities now have clear and unequivocal authority to protect and preserve heritage resources OMB & Courts have signaled that the exercise of power must be undertaken in good faith and in accordance with the procedural requirements set out in the OHA there is a learning curve for municipalities, heritage advocates & private property owners as the balance between public interest in heritage resources and private property rights is struck 93 Development Charges Municipalities are entitled to impose conditions (broad or succinct depending on what you’re looking for) in exchange for development approvals. Another way Ms can recover costs is through development charges (DCs). What are DCs? • • • DCs enable municipalities to impose charges against land to pay for increased capital costs required because of increased needs for services arising from development • M might approve high-density residential development. But the M has to provide water mains, roads, sewage treatment, etc. in order for the land to be serviced. DCs are individually imposed by municipalities by by-law; education development charges are imposed by school boards DCs are a form of tax on land (confirmed by both the S.C.C. and the Ontario Court of Appeal) or a regulatory charge that is adhesive/ancilliary to a province regulatory scheme (i.e. land use planning) – he thinks it means the same thing. DCs are a tax on land? • • • DCs do not need to be tied to or limited to the services required by a specific development. • Most development approvals under the Planning Act, carry with them the ability of the M to ask the developer to agree to conditions. For all of those approvals, the conditions need to be related to the development (e.g. s 51 – connected to the development). Really, let’s say you need a minor variance to put a bigger deck in your yard. It wouldn’t seem right to impose a condition to fund a park in the neighbourhood, for example. • However, can the development of the lands be associated w/ a public transit extension 5km away? Well, maybe/maybe not. development charges are not a payment for specific services needed to facilitate the development of specific lands • contrast to other development approval conditions under the Planning Act where conditions must be related to actual development of land federal and provincial Crown as well as their agents are not subject to pay development charges Development Charges Acts • Development Charges Act, 1997 stipulates that the development of land in Ontario may require (if the municipality passes a by-law) the payment of development charges unless the development is exempted from the imposition of such charges 94 • the statute is based on the principle that growth ought to pay for itself - new development creates new demands for municipal infrastructure and this cost should be borne by new, not existing, residents (who are giving rise to the demand) Previous Development Charges Act, 1989 Innisfil case • original Development Charges Act, 1989 was enacted “to regularize a diverse system of municipal charges or levies imposed on development” in order to bring “certainty, uniformity and predictability” to the funding of municipal and school capital infrastructure (Innisfil) • Development Charges Act, 1989 signified a major policy change by shifting the tax burden for financing municipal infrastructure and education from the provincial to the municipal and school board levels (in force Nov. 1989) • municipalities were given two years until October 1991 to transition from lot levies and to enact development charge by-laws Development Charge Services • DCs can be imposed for both “hard” and “soft” services • hard services include: • water supply and distribution • waste water services treatment & distribution • stormwater drainage & control service • highway & road services • electrical power services • soft service include: • library services • fire services • recreation facilities • administration • government facilities • park development • police services • ambulance Development Charge Freeze • in November 1995, the Ministry of Municipal Affairs and Housing announced that it would undertake a “fundamental review” of the Development Charges Act • Land Use Planning and Protection Act, 1995 (Bill 20) was enacted on April 3, 1996 and prohibited new development charge by-laws or amendments to increase development charges unless ministerial approval has been provided Development Charges Act, 1997 • new Development Charges Act, 1997 came into force on March 1, 1998 and was accompanied by omnibus O. Reg. 82/98 95 • • • • • • • 18-month transitional period permitted for existing development charge by-laws to continue “workable balance” sought by province between needs and wants of development industry and the demands of municipalities and school boards DCs are a form of tax, levy, rate or charge that enable municipalities to pay for the increased costs of various capital infrastructure and works arising from development within their boundaries municipalities are entitled to impose charges against land when “development” occurs DCs are imposed by by-law by individual municipalities education development charges are imposed by by-law by individual school boards to pay for the acquisition of lands for schools (not school buildings or facilities) So, a landowner may have to pay up to four (4) separate charges in some jurisdictions (2 DCs – to regional and municipal government and 2 EDCs – o catholic and public school board) Key Changes in the New Statute The original statute was shoddily drafted. After only 8 years, it was replaced by the Development Charges Act, 1997. • Reduction of Eligible Services – big win for developers • a number of “ineligible services” were stipulated: • cultural and entertainment • tourism and parks • hospitals • waste management services • headquarters for the general administration of municipalities and local boards • Percentage Reduction – Ms must kick in some money to fund the services (1st reading of the bill wanted a 30% co-payment!) • 10% general reduction for all development charge services except for the following specifically enumerated services (s 5(5)): • water and wastewater • stormwater and drainage • highways • fire • police • electrical power • Toronto-York subway extension • other services as prescribed • Calculating Charges – a number of OMB decisions had said that all the M has to do is justify the charges. M did not have to use the precise formula. • NOW, there is precise calculation methodology established • standardization of development charge estimation and computation process – 10 step process in s 5(1) that Ms must follow – it creates certainty • blatant municipal accountability measure 96 • • • • • • charges cannot be set to provide for a level of service that exceeds the average level of that service in the preceding ten-year period (s 5.1(3)) • essentially precludes DCs from funding capital costs of say, a subway. Ms are asking the province to review this Education Development Charges (EDCs) • EDCs authorized as constitutionally valid by Supreme Court of Canada in 1996 • EDCs removed from the DCA in 1997 and re-located to the Education Act (provisions remain similar and complementary to Development Charges Act, 1997) • EDCs can only be imposed for the acquisition of school lands and not the capital costs of construction of educational facilities • Ontario’s pupil accommodation funding model provides grants to eligible school boards to construct and furnish new schools; school boards pay for land Front-End Financing – bylaw says, if you pay a DC, you get a permit. So in some cases, developer will do something first (like build a road) and then a new developer will repay the original developer for the road they built. They have not worked well and are not often used because any future party can challenge their alleged payment owing at the OMB. • authorizes legal agreements between municipalities and owners to construct facilities early and to allow the recovery of costs from future developing owners within defined benefiting areas • front-end financing provisions under original DCA were complex and cumbersome, and they were largely ignored • new streamlined and “simple” provisions enacted but very little buy-in from development industry or municipalities Credits – developer will build something and accept a credit in their DCs • permissive “conventional” credits for works performed are continued (i.e. person who performs DC services is entitled to a credit of cost of work against DC that is payable) • “historical and transitional” credits were phased out – credit holders had to make credit claim applications for recognition and entitlement by September 1, 1999 • Ontario Court of Appeal ruled that developers are obliged by applicable by-laws to pay development charges, despite subdivision agreements Industrial Expansion Exemption – to encourage industrial development • mandatory exemption for industrial development where gross floor area of existing industrial building is enlarged Local Services – s 59 says that an M can impose a “local services” charge under a subdivision or severance arrangement. • scope of local services exemption from DCs significantly broadened: municipality can impose “local service” charge or obligation by way of subdivision or consent condition or by agreement for “local services” both within and related to a plan of subdivision 97 Procedural Requirements Before an M can enact a DC By-law, it must have a Background Study (a financial study that looks at what kind of development is anticipated to occur in this M over the next 20 years, what type and where will it occur? Background Study • before enacting a by-law, a municipality must complete a background (financial) study to include: • estimates of anticipated amount, type and location of development • calculations related to increased need for services & capital costs • examination of operating and capital costs for each service • such other information as prescribed • can be a very time-consuming and elaborate process • What part of the capital costs can be associated with the new development specifically? Public Meeting • before passing a development charge by-law, the council of the municipality shall: • hold at least one public meeting (most hold multiple meetings) • give 20 days notice of meeting • make proposed by-law & background study available to the public at least 2 weeks prior to the public meeting • persons are entitled to make representations at the public meeting A new DC Bylaw is required every 5 years (and they can expire earlier than that) • • • automatic sunset for development charge by-laws - limited to 5-year term unless the by-law expires or is repealed earlier most municipalities enact development charge by-laws every 5 years because of the work involved with the background study municipalities can advance their development charges studies in some instances in order to enact by-laws prior to the next 5-year cycle when significant DC funds are at stake • repeal existing by-law and enact new by-law – might do this because they are not collecting enough money (York Region did this) Payment of DCs • • • general rule: development charges to be paid at the date the building permit is issued – s. 26(1) payment for hard services can be required earlier at time of subdivision/severance approval if specified in DCBL – s. 26(2) municipality and owner can agree to early (where the sunset clause is coming to a close and the developer wants to avoid paying more in DCs under a new DC bylaw) or late DC payment (if the M wants to encourage a certain type of development, e.g. subsidized housing) – s. 27 • Under s 27, M can agree to a payment plan which obviates the problem w/ s 106 of the MA (anti – bonusing). 98 Consequences for failure to pay DCs • building permit can be withheld if DCs not paid – s. 28 • unpaid DCs can be added to the tax roll and collected like taxes – s. 32 • he once argued this s 32 is the only way for Ms to collect taxes. So the M offered a deferral agreement instead Reserve Funds • separate reserve fund for each DC service must be established – it is supposed to only be used for the service for which it was collected (collects 8 million for roads, that money should go to roads) • DCs that are collected must be deposited into reserve funds • money in reserve funds can only be spent for capital costs of services • municipalities can “intra-fund” borrow Challenges to Development Charges • development charges can be challenged in two ways: • complaint - s. 20 – challenging the requirement to pay • a complaint provides a narrow mechanism to challenge a development charge that is imposed in a specific case • a person being charged DCs has standing to challenge them and can argue • (1) the amount is incorrect • (2) a credit owing to him/her is not properly determined • (3) some other error in the calculation of the DC • must be brought w/in the first 90 days that the DC becomes payable • complaint is made to municipal council (the very body that made the decision in the first place!) • the council must hold a hearing into the complaint and must give the complainant an opportunity to make representations at the hearing • the complainant may appeal the decision of the municipal council to the OMB • appeal - s. 14 – challenging the DC bylaw • an appeal provides a broad avenue to contest the imposition of development charges in a general manner • any person or organization may appeal a development charge bylaw to the Ontario Municipal Board by filing an appeal within 40 days of enactment of by-law [s. 14] • an appeal is a much broader challenge to a DCBL and can look into the root of the by-law, including the methodology for calculation and the estimates • notice of appeal must set out reasons – if insufficient, the OMB may summarily dismiss appeal [s. 16(5)] • OMB has jurisdiction to [s. 16(3)]: • dismiss an appeal in whole or in part • order repeal or amendment of DCBL 99 • • repeal or amend DCBL • OMB cannot amend a DCBL to [s. 16(4)]: • increase DC • remove or reduce scope of exemption • change phasing to require earlier payment of DC • change expiry date both a complaint and an appeal involve written objections and hearings before an adjudicative body Test on Appeal *Skewed very heavily in favour of the M • the OMB articulated a test to be applied to an appeal of a development charges by-law in Whitely v. Guelph (City): • has the municipality acted: (i) fairly and reasonably; (ii) within its powers; & (iii) in accordance with legislative process • this test has been consistently applied in subsequent decisions at the OMB and in the courts Conclusions • • • • • • all new development, unless specifically exempt by statute or by-law, must pay DCs DCBL is a large comprehensive undertaking for the municipality to compile information and to justify DCs 5-year maximum life for a DCBL DCs payable at time of building permit issuance or at the time of entering into a subdivision/severance agreement (or earlier or later with concurrence of municipality) DCs can be challenged by way of a complaint (narrow) or appeal (broad) of the DCBL test on appeal clearly favours the municipality 100 Building Charges Legislative Framework • • • Building Code Act, 1992: provincial statute Building Code: provincial regulation [s. 34] • O. Reg. 332/12 municipal building by-laws [s. 7] What is the purpose of the Building Code Act? Ingles v. Tutkaluk Construction Ltd. (2000) (S.C.C.) Facts: negligent building construction (negligent inspection?) led to many people being injured Held: “The legislative scheme of the BCA is designed to ensure that uniform standards of construction safety are imposed and enforced by municipalities. The purpose of the building inspection scheme is clear from these provisions: to protect the health and safety of the public by enforcing safety standards for all construction projects. The province has made the policy decision that the municipalities appoint inspectors who will inspect construction projects and enforce the provisions of the BCA.” Background to the BCA • • • • • • the construction and regulation of buildings in Ontario is governed by the Building Code Act, 1992 and the Ontario Building Code (O. Reg. 332/12) – regulation under the statute the Supreme Court of Canada has confirmed that the subject matter of the Building Code Act is “land development” prior to 1974, there was no provincial building code that governed building and construction with uniform standards and specifications throughout the province • municipalities regulated construction activities pursuant to a general authority to govern construction contained in the former Municipal Act • there were no provincial-wide, uniform building standards • each municipality enacted its own stand-alone building by-law that prescribed different requirements and conditions for building, construction and demolition • municipal building codes → lack of uniform technical standards throughout the province federal government enacted the National Building Code in the late 1960s (first model NBC in 1941) Ontario passed the Building Code Act, 1974 (first provincial-wide legislation) which came into force and effect on January 1,1975 the Building Code Act, 1974 established uniform provincial standards to regulate the building industry and construction and activities (came into force on December 31, 1975) 101 • BCA 1974 was overhauled in 1992 when fundamentally new statute was enacted: Building Code Act, 1992 Greater Toronto Airports Authority v. Mississauga (City), (2000) (Ont. C.A.) Facts: 1 /10 of the land is covered by the airport. Airport was undertaking a massive redevelopment (4 million dollar investment) and the M said the airport should pay DCs, building permit fees and planning processing fees. GTAA said, we’re the feds, it’s aeronautics, we’re exempt. Held: “The [BCA] is valid provincial legislation under subs. 92(13) of the Constitution Act, 1867, which gives each provincial legislature exclusive jurisdiction to make laws in relation to ‘property and civil rights in the province’. The [OBC] has been validly passed under the [BCA].” Modern Building Code Act (2002) • • • • It only amended the previous act but it really changed a lot the third major modification of provincial building legislation occurred in 2002 when Bill 124 (Building Code Statute Law Amendment Act, 2002) became law Bill 124 technically amended the existing Building Code Act, 1992 but it implemented significant reforms to the Province’s building and construction laws Bill 124 represented the most comprehensive building legislative reforms since the enactment of the original BCA in 1974 What is the BCA? • Ontario’s Building Code Act, 1992 sets the regulatory framework for the construction, renovation, demolition and change of use of buildings • Change of use? S 10 of the building code – you may need a permit under the building code change of use. • para. 34(1) 5 • Building Code Act, 1992 sets out or authorizes: • technical standards • administrative procedures; • enforcement powers; and • mechanisms for dispute appeals and new product and system approvals • Building Code Act, 1992 also provides the authority to make regulations governing standards for the construction and demolition of buildings (e.g. number of ppl allowed in an area, window pane thickness, etc) • every municipality in Ontario must comply with the Building Code Act, 1992 (BCA) and the Ontario Building Code (OBC) • local municipal councils are charged with the responsibility to enforce the BCA within their own geographical boundaries (unless otherwise specified in the statute) • s 3: a municipal council must appoint a chief building official and inspectors to carry out the enforcement of the BCA • Ontario’s Building Code (O. Reg. 332/126) is a regulation made under the Building Code Act, 1992, setting out detailed technical and administrative provisions (came into force on January 1, 2014 but it’s referred to as the 2012 building code) 102 • • • the OBC includes provisions related to: • health and safety • fire protection • structural sufficiency • accessibility • energy and water conservation • environmental integrity with respect to buildings, including on-site sewage systems OBC is largely based on the model National Building Code and model National Plumbing Code OBC differs from the model national codes in key areas where Ontario has its own policy priorities, including: • unique code requirements (e.g. energy efficiency) • consolidation of construction requirements in the Building Code (e.g., onsite sewage systems, pools, rapid transit stations) • higher or modified requirements (e.g., barrier-free access, accessibility requirements that you don’t necessarily find in the Nat’l Building Code) The BCA and OBC establish standards for the construction and demolition of buildings • "the manner of construction and types and quality of material used" [para. 34(1) 3]; • "the design of buildings and the use to which they may be put" [para. 34(1) 5]; • "conditions under which the use of material, systems and building designs that are not authorized in the code may be allowed under section 9" of the Act [para. 34(1) 6] • requiring approvals from inspectors [para. 34(1) 12] Chief Building Official • chief building official (CBO) = persona designata • chief building official is an independent officer exercising his mandatory statutory obligations under the Building Code Act, 1992 in the public interest (notwithstanding what her e’er – the M – wants) - but the CBO is also a municipal employee • section 8(1) of the BCA prohibits any person from constructing or demolishing a building without a building or demolition permit being issued by the CBO (note: it’s not the M who issues the permit) • a municipal building official cannot issue a permit for any construction or demolition that contravenes the BCA or the Ontario Building Code, or “any other applicable law” (this has led to hundreds of cases as to what that means) Building Bylaws • municipal building by-laws authorized under s. 7 of BCA • limited legislative role for municipalities • building by-law addresses local matters • classes of permits • fees • notice to be given of completing stages of construction 103 • • requirement to provide “as constructed plans” other local matters Building Permits • • • • subsection 8(1) of the BCA establishes the key regulatory prohibition in the statute: • no person shall construct or demolish a building or cause a building to be constructed or demolished unless a permit authorizing the construction or demolition has been issued by the municipal chief building official chief building official has a mandatory obligation to issue a permit under section 8 of the BCA unless one or more specified conditions are not fulfilled: • proposed building will not comply with the BCA and the Building Code as well as “any other applicable law” – this is the contentious one that is always litigated • builder is not registered under ONHWPA • person who prepared plans, drawings is not qualified to do so • plans review certificate does not contained prescribed information • permit application is not complete • fees have not been paid BCA and OBC do not permit construction or demolition unless authorization is granted section 10: no person shall change the use of a building if the change would result in an increase in hazard without a change of use permit What does “Applicable law” mean? • clause 8(2)(a) of the Building Code Act, 1992 provides that a building or demolition permit shall not be issued unless the applicant complies with “any other applicable law” • the determination of what constitutes “applicable law” for the purposes of section 8 of the BCA (building & demolition) has led to an incredible amount of litigation pursuant to the appeal provision in section 25 of the statute • “applicable law” has different meanings for different types of permits (i.e. change in use permits) and is defined in the OBC (not the BCA) • neither the BCA nor the OBC originally defined what “applicable law” meant • in 1993 the Building Code was amended to include “applicable law” as a defined term: • “Applicable law means, for the purposes of s. 8 of the Act, any general or special Act, and all regulations and by-law enacted thereunder which prohibit the proposed construction or demolition of the building under the Act, regulation or by-law is complied with” TEST: Ottawa (City) v. Ottawa Chief Building Official Held: There must be a logical or real nexus between the Building Code Act and the legislation for it to be found to be applicable law in the context of section 8(2) of the Building Code Act, taking into account the actual construction for which the permit has been applied. 104 So what now? • the “new Act” that came into effect on July 1, 2005 simplified the determination of what constitutes “applicable law” by reference to a specific listing of statutes and regulations that comprise applicable law • Under the “new Act” the province made a mistake. They had an opportunity to create a real, workable list and could have put it in the regulation. • E.g. Caselaw said, subdivision agreement is not applicable law. Yet today, when you look at a subdivision agreement anywhere, it discusses the need for permits. Province hasn’t made that applicable law so it’s still ripe for appeal. • The list is not quite correct. It says, “applicable law means…” and then there is a list. • it’s finite and definite Conditional Permits • a conditional building permit allows construction to commence in advance of full compliance with all applicable law (scoped requirements) • authorized pursuant to subs. 8(3) of BCA • grant or refusal is discretionary (unlike building permits which must be granted under s 8(2)) – a refusal cannot be appealed under s. 25 of BCA • can be issued for any stage of construction • requires applicant (and any other person the CBO determines) to enter into an agreement with municipality that the applicant will assume all risk, restore lands, post security, etc. Inspection & Contravention • municipalities and their building inspectors have wide powers under the BCA to enforce compliance with the statute and the OBC • contravention of the provisions of the Building Code constitute an offence punishable under the Provincial Offences Act • significant fines can be imposed for such offences as building without a permit; failing to comply with an inspector’s order to stop construction activities (stop work order) R v Pickles Facts: Pickles built a dock. Dock was a nuisance to neighbours. Neighbours complained to M. M charged Pickles with building w/o a permit. Held: the Ontario Court of Appeal determined that the offence of building without a permit did not constitute a continuing offence. Pickles could prove he had built the dock 13 months prior and the limitation period was only one year. Reasoning: • a continuing offence is one that arises anew every day that it occurs What happened after: • this is important because the formerly BCA imposed a one-year period for a prosecution to be commenced 105 • amendments (to s 36(8)) by Good Government Act, 2009 modified one-year limitation to the date of discovery Building Code Statute Amendment Act, 2002 • • a blue-ribbon panel - the Building Regulatory Reform Advisory Group (BRRAG) - was formed in 1999 to make recommendations for establishing a direction to reform Ontario’s building and construction regulatory system the BRRAG Report focused on 3 areas: 1. Public Safety 2. Streamlining 3. Accountability Main changes included: 1. deadlines to issue a permit – ranging from 10 business days for standard homes to 30 business days for complex buildings. Now a complete process – in order for the time to start, you must have submitted a complete application 2. limitation of permit fees (previously they were exorbitant and were subsidizing other municipal costs): s. 7(2) The total amount of the fees authorized … must not exceed the anticipated reasonable costs of the principal authority to administer and enforce the Act 3. enumerated list defining “applicable law” 4. definition of the “roles” of key participants in the construction industry, including the chief building official (set out in s 1.1) 5. registered code agencies – a new potential for outsourcing building review and inspection services (seldom used – only one RCA in all of Ontario. The RCAs couldn’t find adequate insurance coverage. If they approve a building and there is something wrong with it, the liability would be huge.) 6. standardized qualification requirements for building officials and inspectors 7. common province-wide building permit application form Appeals • • • • • section 25 of BCA allows for appeals from decisions of CBO regarding the issuance of a permit or order or refusal to issue a permit standing: “person who considers themselves aggrieved” (i.e. financial or other meritorious reason) may appeal appeal is to Ontario Supreme Court of Justice (not to the Ontario Municipal Board or other administrative tribunal). It’s expensive, it uses affidavit evidence, etc. timeline to appeal: 20 days from date of decision to grant or to refuse to grant a permit (or date of order) judge can make any decision that CBO could have made Enforcement • orders: • order to comply [s. 12] – inspector • order not to cover [s. 13(1)] – inspector 106 • • • • • • • • • order to uncover [s. 13(6)] – CBO or RCA stop work order [s. 14] - CBO or RCA property standards order [s. 15.2(1)] – by-law enforcement officer emergency order (dangerous non-conformity with standards) [s. 15.7] – by-law enforcement officer • unsafe building [s. 15.9(4)] – inspector • emergency order (immediate danger) [s. 15.10] – CBO prosecution under s. 36 for provincial offences • 36(1) A person is guilty of an offence if the person, • (a) knowingly furnishes false information; • (b) fails to comply with an order, direction or other requirement made under the Act; or • (c) contravenes Act, regulations or a by-law. $50,000 for first offence for individuals; $100,000 for subsequent offence $100,000 for corporations and $200,000 for subsequent offence penalties seem substantial but they are not usually imposed, unless there are many outstanding orders against them restraining order under s. 38 – in addition to the imposition of any other penalty – judge may make any “order as the judge thinks fit” Objective Based Code • • • • • • “new” 2006 OBC was written in an objective-based format; 2012 OBC also in same format the “objective-based format” is modelled on the 2005 National Building Code. It used to be “prescriptive-based” – there was no leeway. It told you exactly what you could use/needed to do. • the intent of an objective building code is to promote flexibility and innovation by facilitating the use of technical solutions to meet the objectives of the building code as an alternative to the prescriptive and performance-based requirements of the previous OBC prescriptive requirements specify exactly how a building must be constructed (eg. materials to be used, dimensions and other specifications) performance-based requirements state the level of performance that a building component or system must achieve the new OBC contemplates the use of alternative technical solutions for all prescriptive and performance-based technical requirements (“acceptable solutions”) Must fulfill all of these objectives: • safety • health • accessibility • fire, structural, water and sewage protection of buildings • resource conservation • environmental integrity • conservation of buildings 107 Conclusions • • • a building permit is commonly the very last regulatory hurdle that a person must satisfy in order to develop land (i.e. to construct) BCA and OBC regulate demolition, building and construction from a health and safety perspective – part of comprehensive provincial land development scheme much of the BCA and OBC is technical and detailed but it aligns with planning, environmental and other land use development legislation when “applicable law” (includes OHA, etc) must be considered under ss. 8(2)(a) and 10(2)(a) of the BCA 108 Municipal Finance Section 2: Municipal Act, 2001 2. Municipalities are created by the Province of Ontario to be responsible and accountable governments with respect to matters within their jurisdiction and each municipality is given powers and duties under this Act and many other Acts for the purpose of providing good government with respect to those matters. The MA, 2001 gives broad powers (Catalyst Paper Corp). There is room for council discretion. Finance Provisions, MA, 2001 Broad powers (Sections 8-11) and Clawback provision (s 17) ss 8 through 11 cover broad powers and spheres of jurisdiction s 17 provides the restrictions to broad powers regarding certain financial matters (clawback) 17. (1) Sections 9, 10 and 11 do not authorize a municipality to, (a) impose taxes; (b) borrow or invest money or sell debt; (c) incur debt without borrowing money for the purpose of obtaining longterm financing of any capital undertaking; (d) enter into agreements for the purpose of minimizing costs or financial risk associated with the incurring of debt; (e) make a grant or a loan; (f) take any other prescribed financial action; (g) become a bankrupt under the Bankruptcy and Insolvency Act (Canada); or (h) as an insolvent person, make an assignment for the general benefit of creditors under section 49 of the Bankruptcy and Insolvency Act (Canada) or make a proposal under section 50 of that Act. Debt and investment are very specific – can’t invest money outside of the treasurer provision (s 286). Parts regarding finances: o General o Financial Administration – Part VII o Municipal taxation – Part VIII o Limitation on Taxes for Certain Property Classes – Part IX o Tax collection - Part X 109 o Sale of Land for Tax Arrears – Part XI o Fees and charges – Part XII o Debt and Investment – Part XIII Council must appoint a treasurer and an auditor Treasurer Council must appoint a treasurer (s 286(1)) 286. (1) A municipality shall appoint a treasurer who is responsible for handling all of the financial affairs of the municipality on behalf of and in the manner directed by the council of the municipality, including, (a) collecting money payable to the municipality and issuing receipts for those payments; (b) depositing all money received on behalf of the municipality in a financial institution designated by the municipality; (c) paying all debts of the municipality and other expenditures authorized by the municipality; (d) maintaining accurate records and accounts of the financial affairs of the municipality; (e) providing the council with such information with respect to the financial affairs of the municipality as it requires or requests; (f) ensuring investments of the municipality are made in compliance with the regulations made under section 418. Deputy Treasurer and delegated authority Council may appoint (one or more) deputy treasurers who have all the powers and duties of the treasurer (s 286(2)) The treasurer or deputy treasurer(s) are not required to be employees of the municipality Council may delegate to any person all or any of the powers and duties of the treasurer under this or any other Act with respect to the collection of taxes (s 286(5)) The treasurer may continue to exercise the delegated powers and duties, despite the delegation (s 286(6)) Auditor Council must appoint an auditor s 296 provides for appointment of auditor, and outlines duties and powers (1) A municipality shall appoint an auditor licensed under the Public Accounting Act, 2004 who is responsible for, (a) annually auditing the accounts and transactions of the municipality and its local boards and expressing an opinion on the financial statements of these bodies based on the audit; and (b) performing duties required by the municipality or local board. 110 Auditor’s Role Auditor’s term cannot be longer than 5 years o can be appointed for more than one term though Auditor shall NOT be an employee of the municipality Broad access to records and meetings Auditor reports to Council Financial Reporting Audit – conducted annually by auditor s 294.1 – every year, audited financial statements are to be prepared in accordance with generally accepted accounting principles for local governments as recommended, from time to time, by the Public Sector Accounting Board of the Canadian Institute of Chartered Accountants Public reporting requirements – s 295 o Publish notice that statements are available o Make them available to any taxpayer at no cost o Treasurer must make the audit available s 295. s 294(1) requires the annual preparation of a financial information return (FIR) in the form required by MMAH and submit it to the ministry o What does MMAH do with the FIR? post it online on their website for every M in the prov. goes through them looking for financial indicators (e.g. tax arrears, debt load compared to last year, reserve funds) and do reviews on three year measurements. The Ministry might contact the treasurer or council but’s not really a hammer, it tries to help Ms. o Municipal Performance Measurement Program (MPMP) – financial and operating performance (“benchmarking”) MPMP – people either love it or hate it. Allows you to compare among a whole bunch of indicators to compare how you are doing w/ other Ms. o There is also mandatory reporting on certain reserves and reserve funds, like development charge reserve funds Policy framework Municipalities are generally autonomous to make own decisions, within legislative and policy framework Other clawback provisions and provincial oversight with respect to municipal finance There are some restrictions: o s 106 – no bonusing o s 107 – power to make grants o s 270 – requirement for procurement policies 111 o Sections regarding investment policies – Part XIII Requirements to establish budget, set tax rates, levy taxes Some provincial oversight Financial reporting Municipal Affairs Act – provides the MMAH the ultimate authority to take over an M (they can remove council) - **see a couple of pages down o Provincial-Municipal Audit (very rare) o Oversight – province can appoint their own auditor o RARE Ontario Municipal Board regarding debt level issues o Every M has a maximum amount of debt it can carry. o If the M wants to exceed it, they have to go to the OMB to do this. o What are the legal consequences of exceeding your debt limit w/o permission from the OMB? Nothing is set out in the legislation. Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2; “...The power of the courts to set aside municipal by-laws is a narrow one, and cannot be exercised simply because a by-law imposes a greater share of the tax burden on some ratepayers than on others.” – McLachlin C.J. A British Columbia municipality’s tax by-law imposed an industrial tax rate that was more than 20 times the residential tax rate The municipality elected to keep residential property taxes low and increased the relative tax rate on Catalyst’s property Catalyst sought to have the municipal taxation by-law set aside on the basis that it was unreasonable having regard to objective factors such as the consumption of municipal services Reasonableness of municipal by-laws: o Any review of municipal by-laws must reflect the broad discretion that provincial legislators have traditionally accorded to municipalities engaged in delegated legislation No Bonusing (s 106) Assistance (to a commercial enterprise by giving or lending any property) is prohibited. Prohibition was to stop Ms from competing with each other. Historically Ms who could afford to would bonus to the detriment of their neighbours. Assistance prohibited 106 (1) Despite any Act, a municipality shall not assist directly or indirectly any manufacturing business or other industrial or commercial enterprise through the granting of bonuses for that purpose. Same (2) Without limiting subsection (1), the municipality shall not grant assistance by, (a)giving or lending any property of the municipality, including money; (b)guaranteeing borrowing; (c)leasing or selling any property of the municipality at below fair market value; or (d)giving a total or partial exemption from any levy, charge or fee. 112 Exception (3) Subsection (1) does not apply to a council exercising its authority under subsection 28(6), (7) or (7.2) of the Planning Act or under section 365.1 of this Act. Bonusing (s 37, Planning Act) • Planning Act allows that where you are getting a significant increase in the height or density of the property within your proposal (COTA outlines specific heights and densities), then the M can ask you to contribute towards community benefits and facilities There wasn’t a lot of caselaw until the last couple of years. There were no definitions of what a bonus really was (what characteristics does it have?, etc). Friends of Lansdowne Inc v Ottawa, ONCA Facts: Allegations of bonusing: series of complex partnership agreements b/w Ottawa and a consortium of developers. Series of payments to the consortium as part of the development agreements. By-laws authorizing contractual arrangements challenged for being enacted in bad faith and for breach of section 106 of Municipal Act, 2001. Held: “The commercial arrangement must be viewed as a whole and the question asked as to whether the City has conferred an obvious advantage on the private developer which is not balanced by a concomitant benefit to the City.” Hackland J. Reasoning: misapplication of the anti-bonusing provision. Applicant cherry-picked various aspects of the deal, alleging private benefit conferred on developers. Nowak v Fort Erie (Town) – came out after CA decision from Friends of Lansdowne Facts: Developer was getting land but they were going to revitalize the beach. Certain ratepayers didn’t want the development to happen so they challenged the Contractual Arrangement. Held: Was the conveyance illegal because s. 37 of the Planning Act does not contemplate the exchange of land in return for community benefits? No, an M may authorize increases in height and density in exchange for facilities, services or matters as secured by one or more agreements under s. 37 of the Planning Act Municipalities have broad powers pursuant to ss. 8, 9 and 11 of the Municipal Act, 2001 Is the partnership arrangement between the Town and developer ultra vires? No, there was no formal partnership arrangement The term “partnership” is a general and commonly used phrase that may describe many types of projects, including collaborations between the public and private sectors, as is the case here Tips & Tricks with Bonusing Courts will permit the structuring of reciprocal public/private agreements that allocate mutual risks and benefits 113 “Complicated matrix of covenants” is a form of exemption to the municipal antibonusing provision Agreements should relate to and reference each other “Entire agreement” clauses should be avoided Transparency of process remains important Grants (s 107) *note this is subject to s 106. General power to make grants 107 (1) Despite any provision of this or any other Act relating to the giving of grants or aid by a municipality, subject to section 106, a municipality may make grants, on such terms ... as the council considers appropriate, to any person, group or body... within or outside the boundaries of the municipality for any purpose that council considers to be in the interests of the municipality. Loans, guarantees, etc. (2) The power to make a grant includes the power, (a) to guarantee a loan and to make a grant by way of loan...; (b) to sell or lease land for nominal consideration or to make a grant of land; (c) to provide for the use by any person of land owned or occupied by the municipality upon such terms as may be fixed by council; (d) to sell, lease or otherwise dispose of at a nominal price, or make a grant of, any personal property of the municipality...; and (e) to make donations of foodstuffs and merchandise purchased by the municipality for that purpose. S 107 – community, not for profits might use this. Canada Day parade group that needs money from the M. What is the difference b/w this and bonusing? Bonusing prohibits giving to commercial enterprises whereas grants kind of carve out a community purpose. Municipal Affairs Act Some provincial oversight Financial reporting Municipal Affairs Act – provides the MMAH the ultimate authority to take over an M (they can remove council) - **see a couple of pages down o Provincial-Municipal Audit (very rare) o Oversight – province can appoint their own auditor o RARE Allows the Minister, at the end of the day, to take over an M. Provisions to conduct provm audit (prov appointed auditor), allows Minister to take over council. Minister will put them on ‘notice’. Obvi has big political consequences. 114 OMB re: debt levels – if you want to exceed your permissible debt level, you have to go to OMB (often happens w/ large infrastructure projects). What are the consequences for exceeding your debt limit w/o permission from the board? Not clear. Might be some action taken under the Municipal Affairs Act. Property Assessment & Taxation Assessment Act is the leg governing this. Municipalities raise money through taxation: The base of the property taxation system is property assessment Municipal Property Assessment Corporation (MPAC) o Created by legislation o Board of Directors combination of municipal, provincial and taxpayer appointees Independent body responsible for property tax assessment. AMO will nominate, as well as taxpayer assoc, and provincial appointments. It is usually made up of municipal councillors o Responsibility to assess every property in Ontario Andre Morin made some scathing criticisms of MPAC. Assessment Act MPAC must come up with an assessment roll for each municipality. This is provided to the Municipal Clerk (keeper of Municipal Records). There are some exemptions like hospitals, churches, schools, etc. Tax roll Treasurer takes it and certifies it. That becomes the official tax roll and then the treasurer can use it to tax properties. There can be supplementary tax bills pursuant to a successful appeal of the property tax level. s 340 – treasurer to prepare a tax roll based on the last returned assessment roll for the year (2) The tax roll shall show for each separately assessed property in the municipality, (a) the assessment roll number of the property; (b) a description of the property sufficient to identify it; (c) the name of every person against whom land is assessed, including a tenant assessed under section 18 of the Assessment Act; (d) the assessed value of the property; (e) the total amount of taxes payable; (f) the amounts of taxes payable for, (i) the general local municipality levy, (ii) each special local municipality levy, (iii) the general upper-tier levy, (iv) each special upper-tier levy, (v) each school board, (vi) all other purposes; and (g) if parts of the property are in two or more property classes, the matters set out in clauses (d), (e) and (f) for each part. 115 Property classifications The Assessment Act sets out the legislative framework for property assessment MPAC must produce assessment roll for each municipality, provide to each municipal clerk no later than the second Tuesday following December 1 in the year in which the assessment is made (s 36, AA) The roll lists the owner, property description, size of property, roll number, classification of the land and assessed value of each property in the municipality – amounts liable to taxation and amounts exempt from taxation Section 7, Assessment Act – general classes Classes of property are set out in section 7 of the Assessment Act, s 7(1) – the Minister shall prescribe classes of real property for the purposes of the Act & subsection 7(2) – classes shall include but are not restricted to: Residential Multi-residential Commercial Industrial Pipeline Farm Managed forest Section 8 – addresses things like farmland awaiting development or for vacant properties s 8 – subclasses for tax reductions Up to 3 classes for farmland awaiting development Residential, multi-residential, commercial, industrial For vacant land Commercial Industrial Large theatres How property taxes get calculated It used to be simple. Budget divided over property roll. Now it is very complicated. Ratios for each class are multiplied by the assessment in each class (individual properties) to calculate levy Requirements regarding limitations on year over year tax increases Phase in requirements Capping requirements By-laws Part VIII of the Municipal Act, 2001 In 1997, prov passed regulations to reflect this: Tax ratio – different from a tax rate. o It is a numerical rep of the distribution of the tax burden b/w property classes 116 o Residential is 1 (the base). Industrial (3)/commercial pay more (1.71.9), farmland/vacants pay less. Province got these from the mill rates the year before Every year, the M can pass a law to determine distribution. BUT: o Must be w/in a “range of fairness” – prov maintains that M shouldn’t shift outside of the parameters that they initially set. Prov is balancing interests of the Ms and interests of the business owners, etc. Doesn’t want the swings to be so varied so as to be unfair If the ratio is above the range of fairness, you can only move down. Online Property Tax Analysis (OPTA) System – tax modeling and tax shift analysis tool. Allows Ms to model tax burdens to see what the dollar value outcomes are and develop tax policy. Bylaw must be passed to determine tax ratio and tax rate Notice of Assessment Notice of Assessment produced by MPAC and sent to owner of every property in the province Processes available to review Assessment is based on what your house would go for on the market Request for Reconsideration – s 39.1 of the Assessment Act Required first step for residential properties No cost By March 31 of the taxation year in respect of which the request is made Appeal to Assessment Review Board – s 40, Assessment Act Cost If no RfR, by March 31 of the taxation year in respect of which the appeal is made If RfR, 90 days following decision on RfR Ms monitor appeals and are parties to the appeals – it affects their tax base Tax Collection – Part X of the MA Addressed in Part X of the Municipal Act, 2001 Various tools are available to municipalities to collect unpaid taxes Usually an escalating process o Bill o Notice o Letters/phone calls o Ultimately when property taxes remain unpaid for 3 years municipalities have another statutory remedy available – tax sales Taxes are collected through the property tax bill M will pass a bylaw in January at the beginning of the year to allow for short term borrowing from the bank to provide cash flow for operations Generally, at the beginning of each year a by-law is passed for the imposition of interim taxes – up to half of what was billed in previous year 117 o Provides cash flow to M Contents and form of tax bill are legislated (s 343) (s 344 – Minister of Finance may prescribe form) o Some Ms No defect, error or omission in form or substance of tax bill invalidates any proceeding for the recovery of taxes (s 343(10)) Lower tier municipalities and single tier municipalities are responsible to send out the tax bills (upper tiers provide upper tier rates to each of its lower tiers) o Lower tier collects for the upper tier Education tax rates are set by the province and those are collected by the lower tiers/single tiers as well Bills are sent and usually 2 installment dates are provided for payment (Ms must pass by-laws in order to have installments – s 342) o Payments can be made by cheque, cash, by banks (who will remit through mortgages), usually there are provisions for online payments as well Interest is charged on overdue accounts (1 1⁄4 % per month on overdue accounts) (s 345) Fees and Charges – Part 12 MA, some hold priority lein status s 391 permits municipalities to impose fees and charges on persons for: Services or activities provided by or done on behalf of it; Costs payable by it for services or activities provided by or done by or on behalf of any other municipality or local board; For the use of its property including property under its control. s 391(5) provides that if there is conflict between a fee or charge by-law and the Municipal Act 2001 or any other act or regulation the by-law prevails No appeal of a fee or charge by-law to the Ontario Municipal Board There has to be a reasonable connection to the activity, service, use of property Restrictions on fees or charges set out in ss 393 and 394 Cannot impose a poll tax Cannot be calculated in reference to income of a person (but there can be exemptions based on inability to pay) Cannot be connected to something not owned by or under control of the municipality Cannot be related to the generation, exploitation, extraction, harvesting, processing, renewal or transportation of natural resources Fees and charges imposed constitute a debt of the person to the municipality (s 398)…and can attract priority lein status Enbridge v Toronto (City), 2012, ONSC Facts: Enbridge sought to quash a City by-law that imposed a pavement degradation fee per square meter of proposed excavation based on pavement type, pavement age and road type, to be paid by each person applying to excavate on a City road. Held: Municipality entitled to enact the fee: the pavement degradation fee was part of an overall scheme of reasonable costs associated with issuing permits. The costs were causally connected to the maintenance of the roads and could properly be charged 118 as permit fees. The fee was not for the use of property, but to recover the costs of the degradation of the road resulting from its having been dug up. Priority lien status (ss 1(2.1), (2.2), (3)), MA If something has priority lien status, it can get added to the tax roll and can be collected in the same manner as taxes on the property. It can be recovered as a debt to the M. It’s a special lien in the same manner as taxes. Ultimately it means the M could collect through a tax sale if it needs to. Payments in lieu of taxes (PIL/PILTs) Federal and provincial properties are exempt from paying municipal property taxes under the Assessment Act but this is the scheme for Ms to get something back (to represent what tax payments WOULD have been made had the property been fully taxable). It is discretionary for the federal or provincial government – they don’t have to pay it. Provincial – Municipal Tax Assistance Act, no appeal rights Federal – Payments in Lieu of Taxes Act o Appeal available to the Dispute Resolution Panel Halifax v Canada, 2012 SCC Facts: Federal government evaluated the citadel and said it was worthless ($10), essentially getting out of PILTs. City went to the dispute advisory panel. The court reviewed the position of the Minister in the context of PILTs. Held: Minister’s decision was unreasonable. The Minister’s function with respect to the value of the property is to reach an opinion about the value that would be attributed by an assessment authority. By adopting idea that the Citadel was valueless because it could not be used for a commercial purpose, the Minister defeated the purpose of putting it into the PILT system in the first place. Mississauga v Canada Facts: The GTAA’s subtenants had defaulted on their real property tax payments. Issue: Does leased property count as federal property? Held: payments in lieu of taxes were authorized for the GTAA’s subtenants. Recall Mississauga v GTAA Facts: There was a 4 billion dollar investment in the airport. Mississauga said that they should be able to levy development charges, etc. Held: at every instance held that it’s aeronautics, it’s federal property so under the constitution, M laws and provincial laws do not apply. BUT said M could go under the Municipal Grants Act (now PILTs) to get a portion of their DCs in PILTs. Tax sales – Part XI of the MA, s 379 Before MA, 2001 – there was the Municipal tax sales act Now it’s in part XI of the MA The legislation is permissive. It does not have to conduct a tax sale: o They might not want to conduct a tax sale – b/c the land is contaminated for example. 119 There are two companies that will do tax collection/arrears collection, or it’s the lawyers for the M or the M itself. Tax sales are done by auction or tender (s 379) o Minimum tender amount must be met (which is the cancellation price) o Ontario Regulation 181/03, as amended sets out the Municipal Tax Sales Rules – very specific rules about notices, form of tender, opening of tenders, auctions, form of tax deed, form of notice of vesting (if no one buys the property, the property vests in the M) Cancellation price – s 371 Once property taxes have been in arrears for 3 years, the process can be started, with the registration of a tax arrears certificate on the title to the property, setting out the outstanding amount of taxes owing and the cost to bring the account up to date (s 373 – register the tax arrears certificate under this section) o Doesn’t mean you can sell the property right away. Must register a tax arrears certificate which gets registered on the property and sets out the amount of taxes owing and the cost to bring the account up to date (cancellation price – s 371) o s 371 includes: (a) legal fees and disbursements (b) the costs of preparing an extension agreement under s 378 (c) the costs of preparing any survey required to register a document under this Part, and (d) a reasonable allowance for costs that may be incurred subsequent to advertising under s 379 Registration Period During the one year registration period Council can pass a by-law to enter into an extension agreement with the owner (or other person with interest) to extend the time to pay the cancellation price (s 378) o Cannot reduce the cancellation price, cannot prohibit any person from paying the cancellation price at any time Notice of registration of the certificate is given within 60 days of its registration on title – given to anyone w/ an interest in the property (including spouses and the bank holding your mortgage) Municipal Budgeting Process Annual budget required – s 290 Budget cycle – most municipalities start the process partway through the year before o Estimates o Policy priorities o Public consultation Not totally within municipality’s own control 120 o Library boards will submit budgets and demand what they need and so will police boards o MPAC also sends a bill to Ms Operating vs. Capital budget o Ms will generally pass both. Municipal Freedom of Information and Protection of Privacy MFIPPA In force in Ontario, in 1991. There are two regulations made under the Act. Modeled upon and very closely follows the provincial legislation Two aspects to the legislation to keep in mind: 1. Access to information 2. Protection of privacy (of personal information) Purpose – s 1 To prove a right of public access to information held by institutions on the basis that (s 1): 1. Info should be available to public 2. Exemptions should be limited and specific – the information privacy commissioner (IPC) thinks you should disclose everything and when you are not, you must prove to her that you shouldn’t have to disclose something. 3. Decisions are independently reviewed – by the IPC Municipal Record Keeping Municipal Act, 2001 establishes the clerk as the municipal record-keeper (s. 228) and provides that certain municipal records under the control of the clerk may be inspected by any person (s. 253): by-laws and resolutions – remember the indoor mgmt. rule doesn’t apply to Ms – when you’re doing business with the M, you must make sure the K you’re entering into has been authorized by council minutes and proceedings of regular, special or committee meetings records considered at a meeting (except for closed meetings) records of the council statements of remuneration and expenses of councillors and local board members Municipalities shall maintain and preserve their records in a secure and accessible manner (s. 254(1)) 121 original records listed under s. 253 cannot be destroyed and must be retained municipalities can, subject to approval of their municipal auditors, establish retention periods for records (s. 255) o can establish a retention period bylaw Ms won’t forever keep their building permits for example. This could be difficult for legal non-conforming uses. The problem is that the best way to show a legal non-conforming use is through a past issued building permit. o a record can only be destroyed if retention period has expired or record is a copy of the original record municipalities can enter into agreements for archival services to preserve municipal records (s. 254(3)) Access to Records Municipal council may enact a by-law designating an individual or committee as the head of the municipality for the purpose of the statute – otherwise council is the head (kind of problematic because it’s a political body that has an interest in the information) head decides whether records are exempt from disclosure Information and Privacy Commissioner of Ontario is an independent officer with authority to hear and dispose of appeals under this and other statutes Access to a record in custody or control of an institution: o “record” is really broadly defined: any record of information in print, on film, recorded by electronic means or otherwise o “institution” includes: municipality, school board, municipal service board, conservation authority, planning board, police services board, board of health, public library board o “custody” means in the institution’s possession m’s thought they could get around this by hiring a consultant. The Ks with the consultant will say that the records ultimately belong to the M. So M’s can’t get around it by saying, we don’t have it, the consultant does. o “control” means the institution is able to take an action to gain or regain physical custody of the record Ottawa (City) v Ontario (Information and Privacy Commissioner) Facts: City Solicitor of the M was the director of the CAS (volunteer). City said, we understand you might sometimes use you work computer for personal matters. Someone requested his emails – they are records under the control of the M and custody. Held: What is the purpose of disclosure under the act? The purpose is to further democracy. This purpose is not served by extracting emails that are personal and do not deal with the workings of the M, notwithstanding they are under the control of the M. Mascarin: Thinks it was important that the M had a policy that staff members could use their work computers for ancilliary uses. 122 Toronto Star (Robyn Doolittle) v Doug Ford (Order MO 2842) Facts: Appellant requested records relating to bringing an NFL Team to Toronto. City claimed no such records exist in the office. City submits that any records that exist in the possession of the councilor are not w/in the City’s custody or control. Issue: Are these emails exempt? Note: Exemptions should be limited and specific. There is no exemption in ss 6-15 that says the councilors’ records are exempt. IPC Held: records were exempt, based on a number of decisions that had come before. In particular, it based it on a case that gave criteria to be considered to decide whether disclosure is necessary: 1. Was the record created by an e’ee or officer of the M? Because the councilor is not an officer or an e’ee, the record did not have to be disclosed. Mascarin: why should it be important whether the record was created by an e’ee or officer? There are a number of decisions that say councilors are not e’ees. But administrative decision-makers are not bound by stare decisis. (Mascarin – thinks this is all based on a flawed premise). What about Ottawa City Solicitor? Well, in that case it was a personal matter. This case was NOT personal. He thinks here the IPC is creating a criterion (an exception) that doesn’t exist in the legislation. Disclosure There is a presumption in favour of disclosure, unless record is exempt or excluded institutions bear onus of showing why a record is excluded standard and routine disclosure and dissemination of records is recommended disclosure of records does not mean that institutions are required to answer questions or provide additional information for requesters to ascertain answers Request for Records individuals make a request in writing must provide sufficient detail to identify the record in general the purpose of request is irrelevant (although purpose may become a consideration in cases of abuse) o Cases of abuse = frivolous/vexatious requests (s 17) – there is a provision in the legislation identity of requester only disclosed within institution fee may be payable o Fees are usually nominal – e.g. let’s say that someone wants documents re: the tendering records for a road building procurement. Could be costly not just in photocopies but also someone needs to go through to redact some information. The M cannot collect the lawyer’s time in reviewing the disclosure. o mandatory $5 fee for each request for one’s own information o photocopying and other charges for preparing records allowed o fee estimates if over $25 123 o institution may waive fees o fee and fee waiver decisions may be appealed to the IPC/Ont Disclosure Decision A head has a 30-day time frame for making a decision to release, partially release or refuse request 30-day period may be extended prior to expiration failure to reply within time frame is deemed a refusal refusals may be appealed to the Information and Privacy Commissioner of Ontario Life Cycle of MFIPPA Request 1. Completed application to access M records is rec’d by the Clerk’s office 2. Dept/Division notified of request and asked to provide responsive records w/in a prescribed time 3. Records reviewed to determine if statutory exemptions apply 4. Orders issued by the IPC’s Office on similar access requests are allowed 5. Records severed to remove non-responsive or exempt information 6. Decision letter issued w/in 30 days of application Exempt Records Discretionary – s 239(2) head has authority to make determinations in accordance with the act draft by-law or private bill records that reveal the substance of in camera deliberations of council or boards recommendations or advice to institution (but not factual information and certain other reports) law enforcement records affecting institution’s own economic or other interests solicitor-client privileged records information soon to be published Mandatory – head must protect these from the record third party information supplied in confidence: trade secrets, scientific, technical, commercial, financial or labour relations information that could seriously threaten an individual’s safety or health personal information about another individual records received in confidence from federal or provincial governments Collection of personal Information When you apply to an M or the province, anything you disclose to them can be disclosed under the Act. 124 E.g. Ms will request bids for work. He always says, MFIPPA applies but I disclaim and do not consent to information being released. He has been able to get other peoples’ rates to Ms third party information supplied in confidence: trade secrets, scientific, technical, commercial, financial or labour relations information that could seriously threaten an individual’s safety or health personal information about another individual records received in confidence from federal or provincial governments no person shall collect personal information on behalf of an institution unless: o it is authorized by statute; o used for law enforcement purposes; or o necessary for the proper administration of a lawfully authorized activity. Personal information includes (and must be redacted): o race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual o education, medical, psychiatric, psychological, criminal or employment history and financial transactions o address and telephone number o individual’s name if it appears with other personal information Exceptions use or disclosure of personal information for the purpose for which it was obtained or with consent disclosure within institution to employee who needs the record disclosure for the purpose of complying with any Act disclosure in compelling circumstances affecting health and safety Compliance with MFIPPA Ms have a duty to assist individuals to discern what they are looking for. Municipalities should: routinely disclose and actively disseminate non- exempt records assist individuals to formulate requests • provide estimates of fees over $25 consider financial hardship and public health and safety benefits when considering a request to waive fees A head must: communicate decision within 30 days or extend period give notice to any person to whom record relates before disclosure
