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Local Government Bulletin No. 62, December 2005

The purpose of this bulletin is to focus debate on the need to increase local self-government in Canada and to help local communities achieve more autonomy. The local self-government website is: http://www.localgovernment.ca .
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In this bulletin:
1. A minor facelift for the Ontario Municipal Board
2. The new City of Toronto legislation
3. Merging and De-merging
4. Subscribe to the Bulletin
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1. A minor facelift for the Ontario Municipal Board

Municipalities in Ontario have complained for decades that their decision-making powers are consistently usurped by the Ontario Municipal Board. The Board, a provincially appointed body, has the power to overturn any municipal decision about land use. In the rest of Canada municipalities are thought to be intelligent enough to make their own planning and zoning decisions and they have turned out to function at least as well as those in Ontario.

In Ontario, anyone unhappy about a land use decision is generally permitted to refer the matter to the OMB. The OMB holds a hearing de novo - that it, it starts afresh as though no other body has considered the matter - and then has the unfettered ability to do what it thinks best about the particular site involved. The OMB is certainly made aware of what the municipality has done since invariably one or other of the parties is relying on the decision of the local council. But at the end of the day the OMB does what it wants. The OMB is “A Law Unto Itself” says John Chipman, in his book by the same name. (See Bulletin No. 31, October 2002.)

Thus when the provincial government announced last year that it would be reforming the OMB, there was much hope the Board would become a real appeal body, working under clear rules that respected local decisions, and that it would lose its ability to put itself in the place of the municipal council.

Alas, the changes suggested by the province in Bill 51 do nothing of the sort. The Bill, introduced on December 12, is a complicated 39 pages, but it makes only two small changes to the OMB/Council relationship, neither of them substantial.

First, Bill 51 requires that the OMB shall “have regard to the decision of the municipal council.” OMB hearings are almost always a question of whether the municipal decision will stand or not, so the current practice has been for the OMB to have regard to the municipal decision even if it decides to set it aside. This particular amendment therefore changes nothing. But the irony of the words “have regard to” should not be missed. It used to be that the OMB was required to “have regard for” provincial policy statements but that was considered so weak that the government has since required that decisions “be consistent with” provincial policy standards. Bill 51 doesn’t give the local decision the status of provincial policy, just a “have regard to” status. The government touts this as a major recognition of local councils, but it is nothing of the sort.

Second is the requirement that except under limited circumstances, information not provided to the council shall not be presented at the OMB. This will pose no impediment to developers who currently swamp council and council staff with consultants’ reports in support of their demands. Developers rarely present information to the OMB that was not available to council.

But this change is a serious limitation on community groups which go to the OMB only after they find that council disregarded their concerns. In these cases community groups often decide to retain a planner to represent their arguments to the OMB. This amendment will mean the planner’s evidence cannot be available to the Board, since it was not prepared until after the municipality had made its decision. Very few resident groups will decide to fundraise to retain a planner in advance of a council decision, and they will be out of luck at the Board. One wonders if those drafting the legislation knew what they were doing in coming down so hard against community groups who too often lose at the council level and go to the OMB in desperation.

Related to this change is the proposal that no one may appeal a local decision or be a party to an OMB case unless they made their views known to council before it made its decision. If you read about a council decision in the newspaper and decide something should be done – well, Bill 53 says you’re out of luck. While this puts into law a practice the Board often follows today, it’s not a step forward.

A bevy of important local politicians – Mississauga mayor Hazel McCallion, among them - have said how pleased they are with this legislation since it limits the OMB’s role, but it makes you wonder whether they stopped reading the government press release long enough to look at what’s actually contained in Bill 51. After Bill 51 is passed into law (there will be hearings in February or March) Ontario will continue to be a place where the decision of the local council can be appealed without exception to the OMB by the development industry when it feels it did not get want it wanted locally.

Several unrelated sections of Bill 51 seem attractive. One section proposes that provincial planning policy will be effective when it is approved, even applying to projects in the approval process, compared to the current arrangement where the only policy that applies is the policy on the date the application was made. Another section gives local councils the ability to establish an appeal body for Committee of Adjustment matters in lieu of the OMB. Another permits council to establish minimum densities (as well as maximum.)

Bill 51 can be found at http://www.ontla.on.ca/documents/Bills/38_Parliament/session2/b051.pdf .

2. The new City of Toronto legislation

Bill 53, the new legislation for Toronto was released on December 14 with great fanfare. "It is the dawning of a new era in municipal affairs in this province, " trumpeted John Gerretsen, Minister of Municipal Affairs and Housing.

"Toronto and the Ontario government are now 156 years ahead of the rest
of urban Canada in terms of the City's empowerment and self-determination,” said Vancouver lawyer Donald Lidstone, an advocate of stronger municipalities. “That makes Toronto's citizens gifted and it happens to make Toronto more of an international player. This constitutional milestone will help cities in the rest of Canada in their quest for palpable recognition as an order of government under our constitutional regime."

Many other voices made the same claims about the marvels of the new legislation. Is the legislation really all that good?

Perhaps the title of the bill provides an answer. It’s called “The Stronger City of Toronto for a Stronger Ontario Act”. Using a story-line title like this is the same tired strategy that former Premier Mike Harris employed to mislead the innocent. Harris titled the bill which took away tenants’ rights “The Tenant Protection Act”, in the hope that by calling it something which it wasn’t, people would think it was a sheep and not a goat. It seems the government of Premier Dalton McGuinty might be up to the same old tricks.

Certainly when the government came to describing the precise powers that the city secured through the bill there was not much that it had to say. Its press release said the city would be able to set opening hours and closing hours for bars and businesses. It would have more control over the appearance and design of buildings, particularly the power to establish green roofs. It would have expanded powers to license and regulate businesses. Its current powers to establish a lobbyist registry and an integrity commissioner would be expanded, and it would get the powers to change the boundaries of wards. The ten items in the provincial press release are all relatively minor.

The bill also allows the city to impose taxes on alcohol, tobacco and entertainment, which is a change. Informed opinion suggests the tax revenue generated from these services might be as high as $50 million. By comparison, the amount the city will raise this year from parking tickets is $70 million, so this new taxing authority does not amount to much, particular since the city’s budget is over $7000 million – that’s right, over $7 billion – and the shortfall looming from next year’s budget is in the range of $500 million.

Then there are the provisions of Sections 151 – 54 which give the provincial government power, by regulation, to dictate exactly what the city can and cannot do, including regulations “imposing conditions and limitations on the powers of the city” (Section 152). In the face of this provincial power it is not easy to say that this legislation allows the city to be a self-governing body. Even the current Municipal Act does not allow the provincial government to intervene in such a gross manner into city affairs.

Worse, Section 151 specifically gives the provincial cabinet the ability to pass regulations requiring the mayor to appoint the chairs of committees, requiring that the mayor (rather than city council, as is now the case) appoint the chief administrative officer (thus making staff political), requiring that council appoint an executive committee and who will be on that committee, and various other matters which have always been seen as under the control of city council. This explains why city council was in such a hurry two days before this bill was released to agree to exactly those provisions without public hearings and in the face of a strong presentation by former mayor David Crombie against these changes. City council was pretending it was making its own decision, when all the time it was acting under duress, knowing the province would force this system of a muscular mayor on Toronto whether the people or the council wanted it or not. The existence of these sections make a mockery of any notion that this legislation empowers the city.

Another curious aspect to Bill 53 is its length – over 300 pages of text. It is full of detailed prescriptions on what the council can do and cannot do on virtually every power that it is given. A quick review of the Municipal Act, passed by the Conservative government of Mike Harris in 2001 provides a clue about the length. Bill 53 is modeled, Part by Part, and Section by Section, on the 2001 legislation. A comparison of the two documents shows that more than 90 per cent of Bill 53 is taken word for word from the Municipal Act. Many have noted that the 2001 legislation was not a step forward for municipalities in Ontario, and many would have preferred to live with the 1849 Municipal Act.

This is hardly a reasonable way to embody the hopes of those who saw the new legislation as a serious attempt to empower Toronto. This Bill freezes the city under provincial control and the straightjacket of the current Municipal Act. Of course, there are some differences. The 2001 Municipal Act permitted municipalities (Section 11) to enact by-laws in specified “spheres of jurisdictions”, and Bill 53 proposes (Section 8) that the city can pass bylaws respecting a broader range of activities, of course subject to provincial intervention (Sections 151 – 54) and provincial and federal law (Section 11). Is that a difference of substance?

The bill will require careful review and it will be subject to public hearings, probably beginning in February or March. On a first review it does not appear to be the mana that many had hoped for. It may not even be a reasonable step forward. Toronto might have more flexibility for self-government under the existing Municipal Act than under Bill 53.

Paper copies of Bill 53 are still not available, but it is on the Internet at
http://www.ontla.on.ca/documents/Bills/38_Parliament/session2/b053.pdf .

3. Merging and De-merging

A history of recent amalgamations and merger in both Quebec and Ontario has been prepared by Professor Andrew Sancton of the University of Western Ontario for a colloquium at the University of Laval in Quebec. Sancton recounts the process of amalgamation in both Quebec and Ontario and then tries to determine why the de-amalgamation movement has been successful in Quebec but not in Ontario. He notes that from the get-go in Quebec there was a desire to unravel the mergers, and that was not the case in Ontario. He notes that in both provinces political commitments were made to listen to the public on de-amalgamation: Quebec politicians kept their word, and Ontario politicians did not, apparently because they felt there was little widespread public support for de-amalgamating.

Sancton concludes by noting that it’s unclear whether the relatively messy de-merger situation in Montreal will function well. He states “Who would have thought two years ago that a single Canadian municipal corporation could have three distinct levels of political decision making therein including twenty directly elected mayors.”

The paper is available at http://www.capp.ulaval.ca/cahier%5Fweb/textes/Sancton.pdf.

4. Subscribe to the Bulletin
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