THE PERSPECTIVE OF RATEPAYERS GROUPS ON

ONTARIO’S PLANNING PROCESS.

Samantha T. SolomonStudent No. 912 493 094

December 10, 2007

INTRODUCTION AND FORWARD

It all comes down to whether you believe in the “competent and committed

bureaucracy” or a full public participatory regime of individual rights.1 Ontario has

generally adopted the latter, as advocated by the McCray commission in 1964.

This has lead to the Judicial Review Procedure Act, a statute, which has stood

the test of time and has vested the rights of the individual in many government

bodies termed judicial/quasi judicial tribunals.2 It is these tribunals, and primarily

the Ontario Municipal Board (OMB),3 that ratepayer groups will encounter in a

planning dispute with a developer or public body. The OMB has a broad

dominion in balancing the competing interests of the parties. In addition to

traditional planning issues such as, determining whether a proposed floor space

index (fsi)4 is consistent with an official plan or zoning by-law, the enquiry can

encompass consideration of Charter rights and social issues between parties that

are commercial corporations that are not matters that one would associate with a

land use dispute.5 The triumph of individual property rights in planning disputes is

1 WILLIS V. MCRUER: A LONG-OVERDUE REPLAY WITH THE POSSIBILITY OF A PENALTY SHOOT-OUT David J. Mullan* (Summer, 2005) 55 Univ. of Toronto L.J. 535 at 538.2 Ibid p. 552.3 In the January 31, 2007 Interim Report of the Agency Cluster Facilitator for the Municipal, Environment and Land Planning Tribunals, Kevin Whitaker provides a useful comparison of these tribunals: the Assessment Review Board (ARB), the Board of Negotiation (BON), the Conservation Review Board (CRB), the Environmental Review Tribunal (ERT) and the Ontario Municipal Board (OMB).

Annual # Staff # Members full/pt annual # files Budget

OMB 6.8MM 54 27 / 10 6,000ARB 7.6MM 75 4 / 40 12,000 – 80,000ERT 1.25MM9 6 / 6 unknownCRB 12-18BON (part of OMB)

4 F.S.I is the total area of floor space divided by total area of lot.

2

reflected in the common law, “a man’s home is his castle”.6 For this reason, the

deck is stacked against the ratepayers groups, both when they are allied with

their elected representatives and especially so when they are not.

In this paper, stakeholders refer to developers, ratepayers and Councils.

Ratepayers refer to one or more persons who do not have a direct financial stake

in a proposal but who will be impacted by the proposal due to physical proximity

or feel the project will impact a social good. Examples of a social good include,

protection of the environment, affordable housing or otherwise.

In the summer of 2004, many citizens’ groups made their views known in the

consultations over Bill 26, The Strong Communities Act. This Act proposed

government reforms to planning and the OMB. These submissions were also

heard in the government’s consultations on Bill 51, The Planning and

Conservation Land Statute Law Amendment Act, 2006 and the summer 2007,

call of the OMB for input into its Rules of Practice. The submissions of

stakeholder representatives such as the Urban Development Institute, the

5 913719 ONTARIO LTD. V. NORTH YORK 29 O.R. (3D) 490 (ONTARIO CT. GEN DIV) at para 19; The OMB has jurisdiction to deal with an entire range of issues pertaining to zoning by-laws including their merits from the standpoint of good planning. The OMB has jurisdiction over the entire matter before it, namely, the parties, the subject- matter and the remedies sought. The essential character of the dispute arises from the zoning by-laws. The constitutionality and legality of subject zoning by-laws are matters which the OMB can and must address in dealing with the zoning issues properly before it. Additionally, the experience of the OMB is relevant to the Charter challenge of the zoning by-laws particularly in respect of the Section 1 stage of analysis where policy concerns are paramount: Cuddy Chicks Ltd. v. Ontario Labour Relations Board, [1991] 2 S.C.R. 5 at pp. 15 and 17, 81 D.L.R. (4th) 121 at pp. 128 and 130; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, 125 D.L.R. (4th) 583. 6 TORONTO V. KING (1923) 54 OLR 100 at 102 “The common law right to do what you want with your land as long as it is not a nuisance”.

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Canadian Environmental Law Association, Association of Municipal Managers,

Clerks and Treasurers of Ontario, Greater Toronto Homebuilders Association,

Preservation of Agricultural Lands Society, Pembina Institute for Appropriate

Development, Federation of Ontario Naturalists and groups of Municipal Councils

have proved invaluable to this paper.

This paper attempts to identify additional changes that need to be pursued after

the latest round of legislative amendments. In addition this paper looks at some

of the obstacles facing these groups after reviewing case law, submissions of

OMB stakeholders and interviews with the heads of ratepayers groups7. While

some reforms (like intervener funding) may be politically dead, many

improvements (like online OMB transcripts, or better municipal notice of

applications) are within reach of ratepayer lobbying efforts. A brief summary of

the critiques of the current system by stakeholders is also presented for

background and context. As one might expect, it is easier to find stakeholder

critiques of the legislation and the OMB than it is for the stakeholders to critique

each other. The government consultations did not yield a “top ten” list of things

developers, councils and ratepayers dislike about the others. Ratepayer

executives will describe developers as connected, deep pocketed landowners

with no desire or incentive to compromise that will count down the number of

days to their statutory right to appeal, even as you are talking to them.

7 Mimi Fullerton – Vice Chair of the Annex Ratepayers Association and Harvey Tenenbaum – past Chair of the Woodland Acres Ratepayers Association and an anonymous ratepayer executive.

4

Ratepayers groups take an extreme position when talking about planning

reforms.

THE NEED FOR AN ONTARIO MUNICIPAL BOARD

There have been many eloquent calls to disband an undemocratic, rights based

OMB in favour of elected representatives guided by public will and sophisticated

planning staffs. John Chipman did his doctoral thesis in the operation of the

OMB and wrote:

“My conclusion is that, with respect to its appellate

planning jurisdiction, the OMB has become a “tribunal

out of time”. It bases it’s decisions largely on

considerations of impact than can be equally well

made by municipal councils, and, if planning is

accepted as a political process, should be made by

locally elected bodies.” 8

David Townley, president of the South Rosedale Ratepayers Association stated

the OMB should only have appellate jurisdiction on matters of law, and then only

on matters of provincial interest as determined by a government body, or where

an agency determines the Planning Act or a law has been breached.9 This would

8 CHIPMAN JOHN GEORGE: A LIFE UNTO ITSELF: HOW THE ONTARIO MUNICIPAL BOARD HAS DEVELOPED AND APPLIED LAND USE PLANNING POLICY, 2002, Toronto, University of Toronto Press Inc. ISBN 0-8020-3625-2 at p. 6. 9 www.southrosedale.org submissions on OMB reform.

5

align the OMB with its counterparts in other provinces.10 The lack of public

respect for the OMB is greatest in Toronto. Philip Preville states that,

“Given that the OMB has usurped the city’s most

basic function, it’s perhaps logical that Toronto has

left its planning department to rot. For land-use

decisions, city hall has accepted its demotion from

judge to appellant”.11

The OMB has been around since 1897.12 Aside from a lack of political will to

disband it, the OMB takes the heat off local politicians who know their decisions

are subject to the review of an independent provincial tribunal. More fundamental

to the need for an OMB is that in contrast to compensation for expropriation, the

landowner has no recourse when the value of their holdings are slashed by

restrictive by-laws. It has been held that the public good overrides the private

interest13 and that absent bad faith, a developer can not sue a municipality over a

10 GTA Task Force on OMB Reform (7 March 63) p.8.11 TORONTO LIFE, January 2008 p. 60.12 Ontario Municipal Board and the Board of Negotiation 2002-2003 Annual Report.13Per Wilson J. in HARTEL HOLDINGS CO. V. CALGARY (CITY) 1984 1 S.C.R. 387,“The appellant's case in a nutshell is that by freezing its land with a view to its subsequent acquisition for a park the respondent has deprived the appellant of the potential value of its land for residential development. No doubt, this is true. The difficulty the appellant faces, however, is that in the absence of bad faith on the part of the respondent this seems to be exactly what the statute contemplates. The crucial rider is that the City's actions must have been taken pursuant to a legitimate and valid planning purpose. If they were, then the resulting detriment to the appellant is one that must be endured in the public interest… The use of downzoning and other techniques by municipalities to keep down the price of land they expect to acquire in the future has been the subject of frequent litigation. The decisions make it clear that municipalities cannot abuse their powers by using them for an improper purpose… In my view, however, this is not that kind of case.”

6

by law.14 The province has also engaged in this theft on a grand scale, in the

form of the Ontario Parkway Belt and Oak Ridges Moraine. As was noted by

Sam Robinson in his article, “The Rise and Fall of the Ontario Parkway Belt”, 15

massive down zoning led to hundreds of exemption requests. The Province

further reneged on its promise to compensate the affected municipalities for the

erosion of their tax base. The exemptions and appeals were so numerous, the

only remnants of the parkway belt in the Toronto area are the narrow strip of land

beside Highway 407. Basically, the OMB is too busy to disappear. Mr. Robinson

notes that in a level playing field (the municipality as a player, not a regulator),

councils would have to buy rather than legislate land use restrictions and balance

restrictions in one area with increased densities in another area.

LEGISLATIVE REFORMS

Most of the requested reforms will only marginally improve the lot of ratepayers

groups involved in disputes at the OMB. Ratepayer’s submissions can be

summarized as follows:

1) Request : Increasing the time before an appeal goes before the OMB

after an application to Council. The 90-day limit (now 120-days under

Section 34 of the Planning Act) was seen as an impediment to public

input and criticism of an application. Reality: 75% of appeals are not

14 ENTERPRISES SIBECA INC. V. FRELIGHSBURG [2004] 3 S.C.R. 304.15 (2000) 58 U.T. Fac. L. Rev. 157-182.

7

referred less than 150-days from the application to Council.16

Ratepayer representatives have suggested a period of 18-24 months

before an appeal is taken as more appropriate and identified this issue

as one of central importance17.

2) Request : Require material relied on at Council to reflect the case

before the OMB and restrict the ability of the OMB to consider new

evidence. Reality: Bill 51 has required notice to the municipality for

new evidence. Planning Act Sections 17(44.3)-17(44.6) set out this

procedure. Municipal Associations and some ratepayer groups have

criticized the 60-day prescribed period in Regulation 549/06 as too

short for Council to respond to the OMB notice if it is between sittings.

3) Request : OMB members should be appointed for longer terms (over

the current 3-years) to reduce the incentives of possible future

employment by developers. Reality: It now appears that appointments

are being made for 5-year terms.18

4) Request : The jurisdiction of the OMB should be restricted by excluding

local issues such as minor variances and permits. It was also felt the

16 GTA Task Force on OMB Reform (7 March 63) p.8.17 Mimi Fullerton, Vice Chair of the Annex Ratepayers Association.18 http://www.davis.ca/en/blog/Municipal-Planning-and-Environmental-Law- Group/2007/03/20/OMB “The province has renewed the appointments of 4 OMB members for 5 years.  Members Marc Denhez, Reid Rossi, Joseph Sniezek and Peter Acheson have all been renewed until 2012.  All were originally appointed in 2004.”

8

jurisdiction on official plan appeals shoud be appellate and not by way

of a new hearing.19 Reality: The jurisdiction of the OMB remains larger

than in any other province. Municipalities now have the option of

setting up an alterate appeal mechanism for minor variances.

5) Request : Funding for ratepayer participation in hearings. Reality:

Funding is a major obstacle for ratepayer groups to become involved in

planning disputes. After the Harris government abolished the

Intervenor Funding Project Act in 1993, successive Tory and Liberal

governments have not proposed anything else to replace it. The Act

was funded by proponents before a joint board (typically on larger

projects) and involved hearings to establish the budget and size of

ratepayer groups and the impact of the project on its members.

Although the future of intervenor funding is politically dead, many

reforms identified here can narrow the disparity of financial resources

between the developer and the ratepayers.

6) Request : Online provision of hearing transcripts. Reality: Decisions

(without attachments) and the status of applications can be searched

online. Ratepayers will still have the expense of having representatives

19 GTA Task Force on OMB Reform (7 March 03).

9

and experts attend at hearings. Nothing in the OMB annual reports

suggest plans to post transcripts online.20

7) Request : applications to Council by builders must be more complete so

they can not be used to in effect “jump the queue”. Reality: The issue

is an over reaction to Paletta International (2004) 69 O.R. (3rd) 282.

The matter is dealt with in item 2 above.

8) Request : A provision to review OMB decisions. Non-professional

parties before it would review the OMB’s decision to determine

whether there was a sufficiency of evidence, whether resources of

parties were so unequal as to make the hearing unfair or whether there

was a perceived improper hearing of the evidence21. Reality: Judicial

review remains available. The OMB is tinkering with its procedures on

an ongoing basis. Currently the emphasis is stated to be on early

mediation.

9) Request: Prohibition of site specific OPA amendmends between the 5

year OPA reviews, mandatory ADR, greater weight to lay evidence,

eliminating the probationary period for new OMB members to attract

employed candidates, clarifying that the law at the date of application

20 A good example of how to let the public monitor a public hearing is found at the website established by the inquiry into the conduct of Dr. Charles Smith (Goudge Inquiry) found at http://www.goudgeinquiry.ca/index.html. Transcripts, motion pleadings, schedules, witness lists, background of members and background papers are available. 21 Paul Muldoon, Discussion paper regarding Bill 26, a review of the rules of the OMB, the Canadian Environmental Law Association,

10

and not date of decision applies, accepting written in lieu of oral

submissions, decisions “consistent with” instead of “having regard to”

provincial policy statements. Reality: See No. 8 above. Many of these

issues were ignored by ratepayers groups.

The legislation and the courts have taken a pragmatic and conservative view to

the participatory rights of citizens in the planning process. In Friends of Toronto

Park Land v Toronto22, a ratepayer group that opposed Council was denied

standing. Following a lengthy planning process, including official plan

amendments, zoning by-laws and site plan approvals, the ratepayers opposed

the issuance of a building permit as “any person who considers himself

aggrieved” pursuant to Section 15(1) of the Building Code Act. From Oct 1984 to

Jan 1990, the Toronto Council studied the proposal for the 150-space

underground parking garage at Eglinton and Avenue Road. In the decision the

Judge noted numerous meetings with the ratepayers during this time. In January

1990, the Toronto City Council authorized the construction of the garage. Two

months later the City applied for approval for the construction from the OMB

under Section 64 of the Ontario Municipal Board Act. On April 5 1990, in a letter

decision, the OMB approved the construction and dispensed with a public

hearing. One week later, on April 12, the plaintiff incorporated as a not-for-profit

corporation. The concerns of the ratepayers resulted in the OMB requiring a

response from the City, which was provided. The City argued that although the

relevant by-law did not mention parking as a prohibited or accepted use (it was

22 Ibid.

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silent), it was not fair for the ratepayers to argue it was prohibited and that it was

an accessory use of an established public park. On May 9, 2000, the OMB

refused to reconsider its decision. Subsequently the ratepayers appealed to the

Divisional Court. The Court ruled against the ratepayers. This case is a typical

example of a ratepayers group not giving up after losing at council. Ratepayers

do admit that the process is much fairer when the proponent is a public versus a

private body, and when they are on side with the local council at the OMB. The

bottom line is stay away from the OMB and Courts.23

In planning matters, the ratepayers’ best and perhaps only voice is through

Council. The citizen suit has not made an appearance in Canadian planning law

since the Canadian Environmental Protection Act, 1999. These civil suits gave

standing to an individual suing for a contravention of a law, order or permit. An

agency that failed to perform a non-discretionary duty could be sued after an

opportunity to cure was given. Such suits permitted declaratory and injunctive

relief, but no damages to the plaintiff.24 Ontario permits these types of suits

primarily as a motivator for government enforcement of environmental

standards.25 A similar ability to enforce the terms of approvals, permits and

zoning by-laws would be a major coup for ratepayers groups.

23For an excellent discussion of what it takes to succeed at the OMB, see Linda Pim’s article “Us versus Them” ON Nature, Winter 2004/05 at http://www.ontarionature.org/onnature/omb_feature.html 24 Marcia Valiante “WELCOMED PARTICIPANTS” OR ENVIRONMENTAL VIGILANTES,” THE CEPA ENVIRONMENTAL PROTECTION ACTION AND THE ROLE OF CITIZEN SUITS IN FEDERAL ENVIRONMENTAL LAW (Spring, 2002) 25 Dalhousie L.J. 81.25Ontario's Environmental Bill of Rights, 1993, S.O. 1993, c. 28

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INFLUENCE PEDDLING

Not all politicians can be bribed with votes. Over the last decade, the lot of

municipal councilors has greatly improved. In 2007 a Toronto councilor could

expect a salary of $95,000.00, employer contributions to OMERS Pension, LTD,

life insurance, mileage allowance and health and dental coverage. In addition,

there is an annual allowance of approximately $250,000.00 for office expenses

and salary.26 Where once city councilors were denied a living wage, higher

compensation will create disincentive to developer influence of politicians by

promises of post term employment. Also noteworthy is Toronto becoming the first

municipality to appoint an integrity commissioner27 pursuant to Sections 158 -161

of the City of Toronto Act (Bill 53, Ch.-11 S.O. 1996) with the power to report

criminal conduct or make a finding that would permit Council to dock a member

up to 90-days pay.

The criminal prohibition against influence peddling is set out in Section 123 of the

Canadian Criminal Code R.S.C. 1985, c. 27 (1st Supp.), Section 16:

1. Every one who:

(a) gives, offers or agrees to give or offer to a municipal official, or

26 City of Toronto Website http://www.toronto.ca/city_Council/salaries.htm#salary.27 The 2004 appointment of the venerable Professor David Mullen.

13

(b) being a municipal official, demands, accepts or offers or agrees to

accept from any person, a loan, reward, advantage or benefit of

any kind as consideration for the official;

(c) to abstain from voting at a meeting of the municipal Council or a

committee thereof;

(d) to vote in favour of or against a measure, motion or resolution;

(e) to aid in procuring or preventing the adoption of a measure, motion

or resolution, or

(f) to perform or fail to perform an official act is guilty of an indictable

offence and liable to imprisonment for a term not exceeding five

years.

(2) Influencing municipal official - Everyone who:

(a) by suppression of the truth, in the case of a person who is under a

duty to disclose the truth,

(b) by threats or deceit, or

(c) by any unlawful means, influences or attempts to influence a

municipal official to do anything mentioned in paragraphs (1)(c) to

(f) is guilty of an indictable offence and liable to imprisonment for a

term not exceeding five years.

(3) “municipal official” - In this section “municipal official” means a member of

a municipal Council or a person who holds an office under a municipal

government.

14

As a general rule, developers’ influence of local politicians is rampant in the

Greater Toronto Area (“GTA”) except in the Toronto Council itself. The reasons

for this are quite complex and include, the grater number of players in low-

density developments in suburbs, larger ward sizes (and therefore larger

permitted fundraising), and the ability to threaten to deny development in favour

of a competing local municipality, all help to account for the grater developer

influence in the suburbs. With no party system, municipal election financing rules

are generally more lax than their provincial and federal counterparts. For

instance, both winning and losing candidates are permitted to raise funds to pay

off campaign debts until the end of the year following the year of the election.

This last provision allows winning candidates who ended the campaign with a

deficit to raise funds while in office.28 Most of the left caucus on Toronto Council

can be found in those elections where developers backed the loser or backed

both candidates to some degree.29 The category of negligible developer funding

includes David Soknacki, who self-financed his entire campaign and Michael

Walker and Clifford Jenkins who both made it known that they would not accept

corporate contributions. Simply put, the reliance of municipal candidates in the

GTA on the development industry (developers plus building services and

contractors) for campaign funds is undoubtedly far greater than the reliance of

any other group of candidates on any one industry at any other level of

government in Canada.30

28 Robert MacDermid, FUNDING MUNICIPAL ELECTIONS IN THE TORONTO REGION, York University, A paper presented at the AGM of the Canadian Political Science Association, Toronto, 2006 at http://www.cpsa-acsp.ca/papers-2006/MacDermid.pdf at p. 7.29 Ibid p. 15.30 Ibid p. 13.

15

Brampton, Markham, Richmond Hill, Vaughan and Whitby all had incumbent and

re-elected mayors that favoured development. The development industry backed

those candidates even in the absence of strong alternatives. The three instances

that do not support the pattern need some explanation. The long serving Mayor

of Mississauga, Hazel McCallion is so popular she does not bother to campaign

and because that city is so pro-development, the industry does not need to fund

a challenger. Steve Parrish, the Mayor of Ajax, is an opponent of poorly planned

development and was opposed by someone generously backed (by Ajax

standards) by the development industry. Parish has also said that he does

not accept contributions from developers. Almost 90 percent of Parish’s

contributions came from individuals. Pickering has been the site of many of the

most intense battles over development and many of those have occurred

between developers over which land will be developed and which held in

agricultural and green space preserves. This battle has pitted developers against

each other and it is not surprising that different factions supported the incumbent

winning candidate and the losing challenger.31

Corporate donations are frequently “disguised” as individual donations.

Donations are channeled through lobbyists to the appropriate candidate. As

stated in the Computer Leasing Enquiry (Bellamy Report Vol. 1 p. 403),

31 Ibid p.16

16

“Normally, Jeff Lyons would ask donors to make out

cheques payable to various candidates, each cheque

for an amount equal to or under the legal campaign

donation limit. When he had a few cheques for a

particular candidate, he would bundle them together

and deliver them to the candidate with his usual

cheery covering letter.”

Developers know who their friends are. Influence is hard to measure but financial

disclosure allows one to observe the candidates receiving the most corporate

funding (with 6 of the 9 Vaughan councilors on the top 20 GTA list). A non-

professional development candidate in the Toronto 2003 ward elections could

expect to receive 8.4% of the funding provided to his or her losing opponent. 32

The problem of “capture” of the OMB and councils by developers is far more

obvious than any solution. It is money from developers and in some cases the

candidates themselves that fund municipal elections, not contributions from

unions or ratepayers. Survival in the development business means that a

developers project is approved before their competitor’s by virtue of having

greater influence at Council.

As to whether heads of ratepayers groups should decide local planning issues on

the bench (and presumably at the OMB), the City of Toronto made its position

clear when Toronto city solicitor Anna Kinastowski called for the disciplining of

32 Ibid tables 3 and 6.

17

Justice Ted Matlow after he refused to recuse himself from a Divisional Court

case in 2005. The case pitted the city against a citizens' group opposed to a

streetcar right-of-way on St. Clair Ave. West. Justice Matlow, acting as a

member of the Friends of the Village ratepayers group, publicly opposed the

Thelma Condominium and Retail Complex in his Spadina Road neighbourhood.

In his November 3, 2005 ruling, Justice Matlow replied,

“Having a personal dispute with the city is not quite

like having a dispute with a stranger, it is more like

having a dispute with a spouse or partner - you can

still be upset with them but you can still love them”

As to whether this amounted to judicial misconduct, the issue has yet to be

decided33.

As between a developer and a ratepayer, the Criminal Code does not prohibit the

taking and offering of money in order to support or oppose a proposal before the

OMB, Council or otherwise. Section 346 provides:

346. (1) Every one commits extortion who, without reasonable

justification or excuse and with intent to obtain anything, by threats,

accusations, menaces or violence induces or attempts to induce

any person, whether or not he is the person threatened, accused or

33 The pre hearing makes interesting reading http://www.cjc-ccm.gc.ca/cmslib/general/Nov-19-report.pdf. The hearing is scheduled to commence January 8, 2008.

18

menaced or to whom violence is shown, to do anything or cause

anything to be done.

(2) A threat to institute civil proceedings is not a threat for the

purposes of this section.

By virtue of Section 346(2), a ratepayer could demand payment or benefits as

consideration for withdrawing opposition at council or the OMB without threat of

criminal conviction.

The Strategic Lawsuit Against Public Participation (“SLAPP”), has come to

describe civil actions with no reasonable basis or merit advanced with the intent

of stifling participation in public policy and decision-making. In British Columbia,

after a down zoning of a hospital site, a group of ratepayers and a local council

were sued for negligent interference with contractual relations and the tort of

conspiracy. The pleadings were struck with specific reference to SLAPP.34 These

suits are established in Canada but carry considerable risks to the plaintiff.35

Ratepayers groups wield influence at the ballot box, through moral suasion, in

articles in local newspapers, and signage placed on properties. . reports of

public opinion and the groups past efforts and current threats to oppose

applications at both Council and the OMB do carry weight. Influence requires

laying the proper groundwork. It is critical for ratepayers who are affected by a 34 Fraser v Saanich (District) [1999] B.C.J. No. 3100 35 See generally, Braham Roggachevsky, STRATEGIC LAWSUITS AGAINST PUBLIC PARTICIPATION: COMBATTING AN ASSAULT ON THE DEMOCRATIC PROCESS (2000) Appeal 28-35.

19

local development proposal to approach Council as a coalition of ratepayers

groups in the affected ward. Also important will be the Immediate and persistent

solicitation of neighbouring groups, local press, local issues papers (EYE

Weekly, NOW Magazine, etc.), as well as the sympathetic members of Council

that the ratepayer executives campaigned for in the last election. Credibility is

gained by incurring the initial expense of incorporation without share capital.

Other advantages include, fundraising money being held in a separate bank

account, protection against cost awards and SLAPPs, and stability when the

leadership of a group changes. Ratepayer groups should have a history of

regular meetings and an organized list of members including both municipal and

email addresses. Of utmost importance will be the ability to receive notice of

development proposals from the municipality at the so-called “whisper” stage

when the proponent’s lawyer and planner first approach the local councilor36.

Early intervention is critical when the developer is merely counting the days from

its application date to his OMB appeal. At the OMB, involvement should be

limited to one or more issues that have not been identified by the developer and

municipality (or other parties) and on which they can afford to hire expert

evidence. Most hearings have an evening sitting for the public, and some attempt

to focus this evidence on the selected issue is advisable. It is harder to ignore lay

evidence on a relevant issue that is the subject of an experts report. The primary

goal is to prejudice the proposal and the secondary goal is to make the applicant

change its case at the last minute.

36 Ibid 17.

20

RATEPAYERS AND SECTION 37

Section 37 of the Planning Act provides:

“The Council of a local municipality may, in a by-law passed

under Section 34, authorize increases in the height and

density of development otherwise permitted by the by-law

that will be permitted in return for the provision of such

facilities, services or matters as are set out in the by-law.”

Since its introduction in 1983 this Section has been very controversial. Very few

municipalities besides Toronto use it.37 Formerly, the City of Toronto negotiated

Section37 concessions in lieu of development charges. With the enactment of

the new Development Charges Act of Ontario, 1997,38 the City of Toronto

determined that it would impose development charges on new developments

similar to its other municipal counterparts. Most people in the development

industry anticipated that the city would abandon its cash requests pursuant to

Section 37 of the Act. The controversy over Section 37 agreements is not

justified by the actual impact of the section. Since amalgamation, the City has

used Section 37 in 195 development projects, securing cash contributions of at

37 Presentation by Ted Tyndorf, Chief Planner, City of Toronto to the All About Planning symposium at the Munk Centre for International Studies, December 6, 2006.38 S.O. 1997, c. 27.

21

least $68 million plus significant non-cash benefits.39 For example, in the 1717

Avenue Road project, the developer agreed to contribute $400,000.00 as follows:

1. $260,000.00 for site remediation and improvement to convert the

Toronto Transit Commission bus loop at 1400 Avenue Road into a

public park, and

2. $150,000.00 for renovations to the Armour Heights Community

Centre.

The context of this is a development of 83 units that will be selling for

$500,000.00 and up. 40 Developers argue that outdated by-laws that fail to

reflect the official plan are a license to extort money and other concessions.

Ratepayer opposition to the ability to buy extra density is more commonplace.

Recent events may make Section37 a more relevant issue. In July 2007, Brad

Donner of Active 18 (a “West Queen West” Toronto area ratepayers group)

discussed a Section 37 deal with the developers (Urbancorp and Medallion

Corporation) and the other players at an informal lunch. Mr. Donner noted the big

surprise wasn’t an agreement, “but that everyone kept it a secret until the [Oct

31] press conference”.41 In addition to the usual contribution to a public building

(in this case $1,000,000.00 to the local library), this agreement provided a

substantial amount of both commercial space and residential condominium units

at below market rents to “starving artists”. Use of Section37 agreements as a

tool for “affordable housing” and the obligation (if any) to disclose such

39 Ibid.40 OMB Decision 1841 dated July 7, 2007 and marketing literature (Rio Can).41 Parkdale Liberty December, 2007 Edition p. 2.

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agreements to purchasers and lessees may raise some interesting issues in

future.

Unfortunately for ratepayers, it appeared the City of Toronto and not the

ratepayers were the reason for the Active 18 deal42. Further, as noted earlier,

Section37 agreements are not being used in the suburbs. Some have suggested

the City should be required to conduct an online poll of possible uses for Section

37 monies. With its increasing reliance on mediation, the future, if not the present

use of this section may yield benefits to ratepayers groups as opposed to “the

public” or the City. One must wonder what goes through the minds of planners at

the City when not only the OMB, but their own bosses, can change or ignore

soundly researched planning recommendations of experienced and qualified

experts.

RATEPAYER FUNDING

Ratepayers must be creative. Unpalatable as it may seem, ratepayers have

taken monies from developers on condition they will not show up at the OMB.

This was the case in 1717 Avenue Road, where $50,000.00 was provided to a

number of ratepayers group to cover their costs and permit future participation in

an area study.

42 Councilor Adam Giambrone is quoted as saying “… because the City had a strong court case going, on some fairly strong legal grounds, we had the ability to push the developers into accepting a deal…”

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Some groups have been able to convince the City of Toronto to collect ratepayer

funds on their behalf and issue tax receipts for member donations.43 In addition to

internal fundraising, members of the group may offer pro bono services. At the

OMB hearing every penny must be spent on expert witnesses. The lawyer must

resist the temptation to take a fee. The increasing use of technology such as

email and online transcripts has reduced the costs of monitoring proceedings and

communicating with members. Ratepayers have called for the province to

provide a pool of experts available to OMB interveners. The ability of the OMB to

call its own witness44 is rarely, if ever, used. Unfortunately, in a contest of

credibility between opposing experts, combined with the OMB’s disdain for lay

evidence, Ratepayer heads have lost all faith in the process.

RATEPAYERS AND NOTICE

Notice of a complete application under Section 22(6.4)(a) of the Planning Act

must be given by:

(a) personal service or ordinary mail, to every owner of land within 120

meters of the subject land, and

(b) posting a notice45

43 Report No. 4 of the Toronto East York Community Council, as adopted by the Council of the City of Toronto at its meeting held on April 16, 17 and 18, 2002 found at http://www.toronto.ca/legdocs/2002/agendas/council/cc020416/to4rpt/cl062.pdf.44 Section 47 of the Ontario Municipal Board Act R.S.O. 1990 c. o.28.45 O. Reg. 543/06, Section 11(2).

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In a world of email, such notice terms are archaic. Notices should be posted on a

website. Further, as Councilor John Filion, Chair of the Planning & Transportation

Sub-Committee To Reviewing the Planning Process noted in his September 29,

1995 report states,

“In all areas of the City, members of the public spoke

of the need for earlier consultation. It was their

impression that by the time the community was

consulted, critical positions on the development

application had already been taken by planning staff

and that commitments had been made to the

developer. Residents supported the sub-committee’s

suggestion for a “pre-application” process through

which applicants would be encouraged to participate

in a public consultation process even before a formal

application is filed.”46

The report continued,

“Concerns were expressed about a lack of

consistency in public notification and the public not

being provided with sufficient time to review the

application and understand all of the issues before

meetings. There were suggestions to expand the

notification area beyond the statutory 120 meters and

46 John Filion, “THE PLANNING & TRANSPORTATION SUB-COMMITTEE TO REVIEWING THE PLANNING PROCESS”, September 29, 1995 report p.4.

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to notify tenants and condominium unit owners, in

addition to the property owners and condominium

corporations.”47

The following changes were recommended:

Establishing criteria for consistent notification across all districts;

Simplifying the language in public notices and development signs;

Providing understandable graphics, whenever possible or appropriate;

Notices to include information describing how the application does not

comply with the zoning by-law or official plan;

Enhancing existing notification methods by creating an interactive web

page on the City’s internet site that;

lists various planning applications by address and ward number;

shows applications and their status;

provides a link to notices of meetings, staff reports and summaries of

community meetings, when required;

allows public access and input;

As an interim measure, before the interactive web page is established,

create a regular list of development applications on a district or ward basis

and display it on the City’s internet site;

Establishing an e-mail list of appropriate community, ratepayer and

business groups and notifying them by e-mail, if requested;

47 Ibid p.5.

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Creating an educational web page on planning matters which provides a

description of the types of development applications, explains the various

processes, and informs the public on how they can get involved;

Exploring the possibility of providing notification of meetings to the

residents of condominium units and rental properties, business owners

and tenants;

Exploring alternate community consultation meeting designs to provide for

a wider range of public participation;

Establishing criteria for the use of professional facilitators at community

meetings;

Developing and delivering public education on processes and initiatives;

Hosting planning open houses, community visioning sessions and

pursuing pro-active planning;

Attending and sharing information at community association meetings;

Developing a resident guide/brochure to assist residents with the planning

process;

Providing staff training on consultation skills and outreach services;

Taking summaries of community meetings and posting them on the City’s

web site;

Providing more information at community meetings with a focus on the

amendments that the developer is seeking from the zoning by-law or

official plan;

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Review the current content and format of reports and revise them

accordingly to ensure the use of clear language and proper content;

Include statements on how the proposal meets or does not meet Council

objectives, planning policies, guidelines or by-laws;

Provide summaries of public views expressed at community meetings with

an explanation on how they were resolved, unresolved or mitigated; and

Provide statements on general matters of concern that were not resolved

and could not be supported from a planning perspective.

The City has stated it does not have the legal authority to impose pre-application

filings (essentially a conceptual context plan, preliminary site plan and data and

schematic elevations) and the only legal notice requirements are set out in the

Planning Act and regulations. The recommendations have yet to be

implemented.

Conclusions

The pervasive influence of developers in local politics is greatest outside the City

of Toronto. Ratepayers must try to level the playing field in as many subtle and

imaginative ways as possible. The recommendations of John Filion are quite

dated and it appears the impetus for change will have to come from ratepayers

themselves. Someone should give OMB staff and the clerks departments of the

GTA municipalities the number of a competent website designer for public

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hearings48 and they should be shamed and embarrassed into providing timely

and searchable online information to the public. There is no reason in principal

why the 12 – 18 month lead time sought by ratepayers to prepare for an OMB

challenge (particularly when their only source of cash is their own fundraising)

cannot be accomplished by voluntary disclosure by developers at the whisper

stage. For this to work, those developers that simply “count the days” should be

made to pay the price at Council and the OMB. The onus will again be on the

ratepayers to lobby for this. Most associations are quite small and a liaison to

advocate for these groups would be worthy of an office in any City Hall.

In addition to s.42 contributions49, the City of Toronto has new taxing powers.

The need to continue s. 37 deals and their actual benefit to the ratepayers is not

at all obvious. In lieu of cash, municipal governments should extend as much

help to ratepayers groups as possible. There is almost universal contempt for the

OMB hearing process among ratepayers groups in the GTA. Outdated

legislation is a further source of consternation. The Filion recommendations

reflect ratepayer concerns at the Council level. The recommendations should be

on GTA Council agendas. The recommendations of Mr. Filion, stakeholders and

ratepayer executives that are set out in this paper aim to fill the void left by the

loss of intervener funding and addressing stated concerns of members of

ratepayers groups that were not dealt with on the Ministry set agendas leading to

the recent reforms of planning legislation in Ontario.

48 Djordje (George) Sredojevic 416-444-9208 has handled Ontario public enquiries since 2000

49 the right to demand land contributions for public use in s.45 of the Planning Act

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Ratepayers groups can maximize their influence in local planning decisions by

organizing with other groups and by communication with members and local

politicians. Email and the internet have made this communication much easier

and the groups cannot afford to overlook any advantage. Like developers, the

ratepayers must make every dollar count, and that means avoiding the OMB.

When the City settles at the OMB, the ratepayers must too.50 Even with support

of Council, OMB involvement should be rare and limited in scope. Participant

instead of full party status and limiting participation to “public days” and

attendance at mediations are other possibilities.

Samantha T. Solomon (stsolomon@rogers.com)

Toronto, Ontario

December 9, 2007

50 Riocan Real Estate Investment Trust v. Toronto (City) [2007] O.M.B.D. No. 645 at p. 13

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