Since becoming Premier, Doug Ford has passed laws and regulations to help big developers. After all, these are very people who helped him get elected and who continue to donate to PC MPPs. Now Doug is at it again.
Embedded in the innocent-sounding "Accelerating Access to Justice Act, 2021" is Schedule 6. Schedule 6 gives big developers quicker approval to build, undermines due process, and gives municipalities and residents less say over land-use decisions.
Bill 245 is racing through the legislature. You can to submit written comments on Bill 245, or apply to speak to the Legislative Assembly Committee, which includes PC MPPs, by emailing [email protected] and cc'ing our office at [email protected].
Here's five things to know about Schedule 6.
1) Schedule 6 merges five tribunals into a powerful mega tribunal called the Ontario Land Tribunal. The tribunals being merged include the Local Planning Appeals Tribunal (LPAT) (formerly the Ontario Municipal Board), the Mining and Lands Tribunal, the Conservation Review Board, the Board of Negotiation, and the Environmental Reviews Tribunal.
The new Ontario Lands Tribunal will now adjudicate disputes on a broad swath of matters related to land use planning, from heritage designations to compensation for expropriations to new municipal zoning laws.
2) The tribunal gives community members and municipalities less say over land use planning. The tribunal may dismiss a proceeding without a hearing if the tribunal believes the proceeding has no reasonable prospect of success. This would expand the tribunal’s authority to dismiss without a hearing (currently set by section 4.6 of the Statutory Powers Procedure Act) which currently only allows dismissals for proceedings outside the tribunal’s jurisdiction or for proceedings that are frivolous, vexatious, or in bad faith.
Bill 245 also removes the right to a judicial review or an appeal when the Tribunal breaks its own rules or misuses its discretion unless someone can show the non-compliance caused a “substantial wrong that affects the final disposition of a proceeding.” That's a very high bar to meet.
Limiting access to justice like this is a troubling move. It means one adjudicator can strike down municipal laws decided by elected officials without even hearing the evidence, even when the laws comply with all provincial laws.
The sheer power of this tribunal was made aware to me when the LPAT threatened the future of the City of Toronto's new short term rental rules (STRs), which limited renting homes on platforms like AirBnB to a person's own home. The motion was approved by city councillors in 2017, after hundreds comments and many hours of debate and public consultation, but implementation was delayed because a few home operators appealed the motion to the LPAT. In a show of sanity, a one man adjudicator ruled in favour of the city in late 2019 - but this decision could have easily swung the other way, overturning a law made by democratically elected officials representing over two million people. The tribunal will override democratically-decided important laws like this in the future.
3) Bill 245 strips down the expropriations process by eliminating requirements that currently apply to the Board of Negotiation and the LPAT under sections 27-29 of the Expropriations Act. The duties being removed include the mandatory inspection of land being expropriated, timelines for the service of appraisal reports, the requirement of a written record of oral proceedings, the requirement of a written reasons for decisions, and the authority to publish reports of significant decisions.
You might have heard about Noel Francis Chantiam, the man whose land is being seized by transit agency, Metrolinx, to build a GO station in King City. Chantiam bought the property for $750,000 and collects $10,000 a month rent. The property was assessed at $2.1 million, but Metrolinx is only offering Chantium $1 because Metrolinx says the land is contaminated and will cost more than its appraised value to clean up. This is not how expropriations should work.
Governments must have the right to expropriate property for the public interest, but the process should be fair, and fair market value should be given to the homeowner. I fear these changes to the expropriations process in Bill 245 will mean there will be more Ontarians facing a situation like Chantiam.
4) I also believe that Ford will appoint politically partisan and developer-friendly adjudicators to this new mega tribunal, stacking the decisions in favour of big development.
While many of the current LPAT appointees seem perfectly qualified, with demonstrable experience and credentials in local planning and law, the LPAT/OMB has also regularly provided jobs for partisan people. Last year, the Ford government came under fire for appointing the former CEO of developer lobby group BILD to the LPAT, while failing to renew the appointments of four adjudicators with environmental backgrounds.
The Ford government has also repeatedly blocked the Government Agencies Committee from doing its job, scrutinizing the credentials of appointees, and guarding against the capture of public agencies by private interests. Transparency and scrutiny increase the likelihood that highly qualified and fair adjudicators will be appointed. Secrecy breeds mediocracy and the politicization of the appointment process.
5) Then there's the issue of expertise. Schedule 6 would allow any member of the new tribunal to hear any of the matters previously dealt with by the tribunals being merged. But these tribunals require different technical expertise that could be lost in the merger. The technical qualifications required to adjudicate a dispute concerning a water-taking permit are different from those required for a dispute concerning a development charge bylaw. A major purpose of having a tribunal instead of a court is to provide access to adjudicators with specialized expertise. But this bill does not require that an adjudicator who hears - say - an environmental matter have any environmental qualifications.
Environmental Review Tribunal adjudicators oriented around environmental protection could be absorbed into a larger tribunal culture oriented around development approvals. The differences in tribunal cultures and expertise was demonstrated in 2012, when an ERT member, serving on a joint tribunal with two OMB members, wrote a blistering dissent after the majority approved a massive Walker Aggregates quarry within the Niagara Escarpment over the objections of the Niagara Escarpment Commission. The ERT member said his OMB colleagues didn’t understand the science and had wrongly accepted the developer’s assurances that sensitive environmental features could be replicated elsewhere.
Ford has a track record of introducing bills like this. Bill 245 doubles-down on the changes in Bill 108 the More Homes More Choice Act, which stripped land use planning power away from municipalities and residents and to the provincial government.
Bill 108’s changes included:
● Weakening the ability of communities and environmental organizations to participate in land use planning appeals.
● Dissolving the Local Planning Appeal Support Centre. This centre helped people navigate the complex land use planning system and appeals process.
● The clawing back of inclusionary zoning rules, which now only apply to areas near major transit stations.
● Reduced the fees municipalities can collect from developers to pay for infrastructure and services - from daycares to transit - to accommodate new growth. Although some of the fee cuts were reversed through regulation, the City of Toronto estimated in March 2020 that they could still be on track to lose 25 to 30% of developer fees.
We need development because our city is growing fast. But we also need development that benefits people, and improves the affordability, health and livability of our city.
There is a clear need for the provincial government to do more to help our city grow well.
I believe Bill 245 could and should be an opportunity for the government to:
● expand inclusionary zoning beyond transit zones so affordable housing, more family size apartments, and community benefits, from local jobs and parks, are incorporated into all big developments.
● allow municipalities to charge fees that let growth pay for growth, meaning development fees should reflect the full costs of providing services and infrastructure, including schools.
● and ensure municipalities and communities have a fair say in planning decisions.
I welcome your feedback and thoughts on this bill. Bill 245 is going to committee next week. If you want to submit written comments on this bill or apply to speak to the Legislative Assembly Committee, which includes PC MPPs, you can send a request to [email protected] and cc our office at [email protected].