Davis LLP - Municipal & Planning Law Blog

Supreme Court Affirms Broad Municipal Discretion to Set Tax Rates

Mon, 23 Jan 2012 14:05:00 PST

The story of Catalyst Paper over the last few years has not been positive. It has <a href="http://foresttalk.com/index.php/2010/07/07/catalyst-paper-is-permanently-closing-elk-falls-paper-mill-aamp-coquitlam-recycling-operation/">closed facilities </a>and shed costs in an attempt to regain profitability. More recently, it entered into agreements with its creditors to facilitate a restructuring of its debts. One way that it attempted to cut costs was by carefully managing and reducing its property taxes. In 2009 it commenced judicial review against four British Columbia towns (Powell River, Campbell River, Port Alberni and North Cowichan) in an attempt to have its property tax rates in those towns reduced. Ultimately it reached settlements in several municipalities, and closed its mill in Campbell River. Catalyst Paper's dispute with North Cowichan, however, made its way to the Supreme Court of Canada, which last week <a href="http://scc.lexum.org/en/2012/2012scc2/2012scc2.html">ruled in favour of North Cowichan </a>and upheld the district's method of setting property tax rates. Catalyst Paper had sought judicial review of North Cowichan's property tax rates for major industry (Class 4) primarily on the ground that the rate was unreasonable. The property tax rate for Class 4 property in North Cowichan was set by the municipal council at $43.3499 per $1000 of assessed value, approximately 20.3 times the rate for residential property. This was in spite of the fact that Catalyst Paper received little or nothing in the way of municipal services - the mill did not receive water or sewer service from the district. The Supreme Court examined at some length the discretion given to municipalities to set tax rates, and the principles that guide court reviews of municipal taxation. The Court noted that (in order to properly pass a bylaw) a muncipality must comply with mandatory procedural requirements, such as notice and voting requirements. While Catalyst Paper had alleged that proper procedures were not followed (as North Cowichan had failed to provide reasons and a rational basis for passing the taxation bylaw), the Court held that procedural fairness does not require the provision of either. The Court went on to find that once a taxation bylaw is found to be procedurally proper, the scope for review of the substance of the bylaw is very limited. The essential question on judicial review is whether the taxation bylaw falls within the range of reasonable outcomes. That reasonableness must be assessed in the context of all relevant factors , including the scope of decision-making power given to council by the relevant legislation. In the case of municipal councils, which are "democratic institutions" that have traditionally been granted broad discretion in legislative matters, the scope for substantive review by the courts will be very limited. In the case of property tax, the Court found that the <a href="http://canlii.ca/t/84m0">B.C. Community Charter </a>gives muncipalities a "broad and unfettered legislative discretion to establish property tax rates in respect of each of the property classes in the municipality, unless limited by regulation". The Court rejected the argument that the level of a tax be related to the services consumed. Catalyst Paper had presented a "Consumption of Services Model" of municipal taxation, which the Court rejected.  The Court was not unsympathetic to Catlyst Paper.  While the Court did mention that the Class 4 property taxes were harsh, and that the ratio of industrial to residential rates were among the highest in the British Columbia, it found that rates set by the muncipal council was within the range of reasonable outcomes, and accordingly declined to interfere with the bylaw. The full text of the decision can be found at <a href="http://scc.lexum.org/en/2012/2012scc2/2012scc2.html">Catalyst Paper v. North Cowichan (District) 2012 SCC 2</a>

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I do hope that doggie's for sale? Not in Richmond!

Thu, 09 Jun 2011 14:57:00 PDT

A recent case decided by the Supreme Court of British Columbia dealt with the intersection of two interesting areas of law and policy: On the one hand, the growing movement to more closely regulate or to ban the sale of dogs and cats in pet stores, and on the other hand the scope allowed to municipalities to regulate or prohibit the conduct of business within their borders. The breeding and sale of dogs in pets stores is controversial. There are many pet stores that no longer sell dogs and cats, choosing instead to host adoption events for local humane societies and rescue foundations. The stores that do continue to sell dogs and cats are under pressure to ensure that they are bred and housed properly, under humane and sanitary conditions, and that they are not sourced from disreputable breeders or puppy mills. Some local governments have taken an interest in regulating pet stores. Toronto is considering implementing a system of inspecting and certifying breeders and requiring that pet stores in Toronto only sell dogs and cats from certified breeders. Richmond, B.C., has gone significantly further, and on November 8, 2010, added puppies and dogs to the list of animals which cannot be sold in Richmond pet stores. The bylaw took effect on May 8, 2010. Interestingly, Richmond had already banned the sale of rabbits as a response to the annual spike in the sale (and subsequent abandonment) of bunnies around Easter. There are ten pet stores in Richmond, and of those ten, three sell dogs. Those three brought an action in B.C. Supreme Court to have the bylaw declared void. The grounds claimed for invalidity were that the decision to enact the "was made on a specious, wholly inadequate factual basis, improperly motivated, enacted in bad faith, discriminatory, contrary to the municipal purposes authorized by the Community Charter and completely unreasonable". The Court's decision upholding the Richmond bylaw was delivered on April 15, and the reasons with respect to the scope of municipal authority are the most interesting. Unlike provincial and federal governments, municipalities in Canada are creatures of the provincial statutes which create them. As such, they are entitled to make bylaws in the areas authorized in those statutes, and any action by a municipality its statutory scope of authority is ultra vires and unenforceable. In British Columbia, the relevant statute is the Community Charter, SBC 2003, c. 26, which governs municipalities other than the City of Vancouver. With respect to the standard of review applied by the Court, it was uncontroversial that (a) with respect to whether Richmond's actions were permitted under the Community Charter, the standard was correctness, and (b) with respect to discretional and policy decisions made within its authority, the standard was reasonableness and that strong deference should be given to Richmond's decision. Under the Community Charter, the two relevant areas of municipal jurisdiction are: 8(3) A council may, by bylaw, regulate, prohibit and impose requirements in relation to the following: ... (k) Animals ... 8(6) A council may, by bylaw, regulate in relation to business. Regulate, in turn, is defined in the Schedule to the Community Charter: "Regulate" includes authorize, control, inspect, limit and restrict, including by establishing rules respecting what must or must not be done, in relation to the persons, properties, activities, things or other matters being regulated; The Court found that it should consider the provisions of the Community Charter in "a broad and purposive" manner, and not strictly construe those provisions. It found on a plain reading on Section 8(3)(k), and considering the definition of "regulate", that the bylaw was within Richmond's authority granted under the Community Charter. The Court also found that the bylaw was within Richmond's authority under Section 8(6). The court commented that this power was more restrictive than the power to regulate with respect to animals, and that: "Regulation of business necessarily involves restrictions on businesses, including setting out rules of what cannot be done by a business. Municipal regulation on the conduct of business, including prohibiting certain types of transactions, is an established aspect of valid business regulation. " Noting that the bylaw does not prohibit pet stores, but rather the types of animals that can be sold by them, the Court found that the bylaw was within Council's authority to regulate businesses under Section 8(6). The court dismissed the remainder of the claims relatively quickly. The court found that Richmond council had a rational basis for enacting the bylaw, that there was no bad faith exhibited by Richmond council in enacting the bylaw, and that treating pet stores differently than other sellers of animals (such as breeders, which are not covered by the bylaw) was not discriminatory. The Court also refused to engage in a consideration of the effectiveness of the proposed bylaw, reasoning that whether the bylaw would be effective at fulfilling its stated purpose (reducing the number of abandoned and unwanted dogs in Richmond, and improving the conditions of dogs sold as pets in Richmond) was not the role of the Court. With respect to the claim of "unreasonableness", the court unsurprisingly found that Richmond council was entitled to broad deference in enacting bylaws. It relied on the recently decision of the Court of Appeal in the Catalyst Paper case - where the municipality is exercising a political function to make a municipal decision, legislating on a matter of policy, rather than exercising an adjudicative function, it is entitled to deference. If the decision is wrong, the remedy is at the polls and not in court. As it regards municipal authority, this decision is obviously limited to British Columbia and municipalities under the Community Charter. Other Canadian municipalities considering whether they shoudl regulate or prohibit the sale of dogs and cats will have to consider the authority granted under their statutes. At least in Alberta and Ontario, the municipal statutes are similar enough to the Community Charter to predict that the outcome would be similar. For example, Alberta's Municipal Government Act provides: 7 A council may pass bylaws for municipal purposes respecting the following matters: ... (h) wild and domestic animals and activities in relation to them; And in Ontario, the Municipal Act, which applies to municipalities other than Toronto provides: 10(2) A single-tier municipality may pass by-laws respecting the following matters: ... 9. Animals. 11(3) A lower-tier municipality and an upper-tier municipality may pass by-laws, subject to the rules set out in subsection (4), respecting matters within the following spheres of jurisdiction: ... 9. Animals. The City of Toronto, which is governed by the City of Toronto Act, contains identical provisions to the Municipal Act.

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Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009: certain sections and Ontario Regulation 126/10 came into force on April 7, 2010

Fri, 09 Apr 2010 11:36:00 PDT

On April 7, 2010, sections 2, 15, 16, 17, 19, 22 and 23 of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 came into force, along with O. Reg 126/10 created pursuant thereto. These sections of the Act deal with the Tribunal Clustering envisioned in the Act and the ability to promulgate regulations under the Act. O. Reg 126/10 prescribes the agencies, boards, and commissions for the purposes of the definition of "adjudicative tribunal" in the Act, as well as designates the following adjudicative tribunals as a cluster: 1. Assessment Review Board. 2. Board of Negotiation. 3. Conservation Review Board. 4. Environmental Review Tribunal. 5. Ontario Municipal Board.

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Tofino Council Support By-law to Ban Fastfood and Large-format Retail Chains

Mon, 15 Mar 2010 11:06:00 PDT

On March 9, 2010, Council for the District of Tofino (BC) voted to direct staff to draft a by-law that would ban fastfood restaurants and large format retail chains from the municipality. Staff will likely have to be creative to craft a by-law that will not get quashed by the courts. Further details can be found here: <a href="http://www2.canada.com/westerly/news/story.html?id=ff0d4e52-ef37-4270-a2fe-28231833a9eb" target="_blank">canada.com news story</a>

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Bill 76 passes in QuÃ©bec - Municipal contract allocation rules tightened

Tue, 23 Feb 2010 07:08:00 PST

Following public outcry in late 2008 regarding contract allocation in the municipal sector and the government's undertaking to remedy the issue, the government of Québec yesterday passed <a href="http://www.assnat.qc.ca/fra/39legislature1/Projets-loi/Publics/09-f076.htm" target="_blank">Bill 76 (French Only)</a>. The bill effectively amends all of ten major statutes applicable to the municipal sector and aims to ensure greater transparency and predictability to the province's municipal contract allocation process. This new legislation notably includes: <ul> <li> an obligation to provide citizens with more information about municipal contracts awarded by a municipality;</li> <li> greater leeway for Ministry auditors;</li> <li> an obligation for municipalities to provide all information required for the performance of effective audits;</li> <li> an obligation not to disclose the names of tendering parties prior to the opening of quotes;</li> <li> an obligation for municipalities to adopt contract management policies which include various anti-corruption measures.</li> </ul> More specifically, the bill creates an obligation for municipalities to prepare an estimate for all contracts expected to be in excess of $100,000 and to maintain an easy to understand, comprehensive and accessible list via Internet for all contracts awarded in excess of $25,000. Also, payments representing 10% or more on any such contracts in excess of $25,000 cannot be made prior to publication of basic information regarding the contract, the tendering parties and prices quoted by all parties. Lastly, information regarding the actual cost to execute a contract must be published as soon as possible following completion and all published information must remain available and posted for a period of at least 3 years. In addition to Bill 76 and as part of its ongoing efforts regarding ethics in the public sector, the government expects to pass another bill during the Québec legislature's 2010 spring session which would also create an obligation for all municipalities to adopt a code of ethics.

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Stricter Air Emissions Standards in Ontario

Thu, 04 Feb 2010 07:10:00 PST

On February 1, 2010, changes to Ontario Regulation 419/05, Air Polution - Local Air Quality (O.Reg. 419/05), came into effect. These changes require industrial facilities to meet stricter air standards for 33 contaminants. The changes include a reduction in lead and acetone by approximately 75 per cent, the creation of standards for acetonitrile and methyl isocyanate, and a reduction of xylenes by almost two-thirds. The Government of Ontario has indicated that the purpose of these changes is to "better protect air quality and health in local communities". The news release of the Government of Ontario which provides an overview of these changes, and a list of the 33 contaminants, can be accessed <a href="http://www.news.ontario.ca/ene/en/2010/02/strengthening-protection-for-ontarios-air.html">here</a>.

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Changes to the Regulations Under the Planning Act (Ontario) Regarding Propane Operations

Mon, 01 Feb 2010 07:14:00 PST

Changes have been made to the following regulations under the Planning Act (Ontario): Ontario Regulation 543/06: Official Plans and Plan Amendments; Ontario Regulation 545/06: Zoning By-Laws, Holding By-Laws and Interim Control By-Laws; Ontario Regulation 544/06: Plans of Subdivision; and, Ontario Regulation 200/96: Minor Variance Applications. The changes are intended to support recommendation 14 of the Propane Safety Review, to require that propane operators be notified of applications for official plan amendments, plans of subdivision, rezoning and minor variances where the propane operation's defined hazard distance extends into the area under consideration for the land use application. Definitions for "hazard distance", propane operator" and "propane operation" have been added to each of the above regulations, and changes to the notification requirements in each of the regulations have been made to reflect this recommendation. A propane operation's "hazard distance" is established as part of the propane operation's risk and safety management plan, required by Ontario Regulation 211/01: Propane Storage and Handling under the Technical Standards and Safety Act, 2000 (Ontario). It is anticipated that Ontario Municipal Board directions for public notice will now include such propane operators. To assist in this process, a drawing in the form of a map or plan signed off by a professional engineer from each propane operation's risk and safety management plan must be forwarded to the relevant municipality, which shows: <ul> <li> the propane operation including the location and size of the largest vessel and its setback from the front, rear, and side property lines;</li> <li> its associated hazard distance;</li> <li> visual indication of hazard distance as a circle (radius = hazard distance) around the largest vessel along with a clear marking of the municipalities falling within the hazard distance;</li> <li> the address and contact information (municipal clerk or secretary-treasurers of planning board) for each municipality (including if applicable, both lower- and upper-tier municipalities) identified in the drawing;</li> <li> GIS co-ordinates, property line information, and the location and name of any roads within or abutting the site to properly identify the propane operation's location, its hazard distance and the municipalities; and</li> <li> a key note to the drawing to indicate the facility's municipal address, municipal lot number(s) and concession lines as applicable, and the date the drawing was prepared.</li> </ul> For more information, consult the following Technical Standards & Safety Authority Advisory Sheet FS - 162-09: <a href="http://www.tssa.org/CorpLibrary/ArticleFile.asp?Instance=136&ID=5FF049D20A104A32AA56A2BD2E1252CF" target="_blank">Advisory Sheet FS - 162-09</a>

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Ontario MOE New Approvals Initiative

Fri, 29 Jan 2010 07:59:00 PST

The Ontario Ministry of the Environment ("MOE") has undertaken a new initiative to modernize the environmental approvals process. Lower-risk activities will have a simplified approval process and approvals for higher-risk activities will be done more quickly. Throughout these new processes, the MOE suggests that environmental standards and protection will be maintained and improved. The objective is to introduce the new approval process over the next three years. Simplified approvals for lower-risk environmental activities will be a rules-based environmental registry process. The higher-risk environmental activities will involve applying for a new Certificate of Approval. In February, 2010 the MOE will begin formal consultations which will result in discussion documents posted on the Environmental Registry of the Environmental Bill of Rights. Consultations will include a roundtable of experts from the business community and environmental organizations.

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Supreme Court of Canada Strengthens Federal Environmental Assessment Provisions

Fri, 22 Jan 2010 06:48:00 PST

The Supreme Court of Canada found in a decision released on January 21, 2010 that the responsible authority cannot just conduct an environmental assessment screening study for a project listed on the Comprehensive Study List. In a unanimous decision of a 7-member panel in the case of MiningWatch Canada v. Minister of Fisheries and Oceans et al. the court held that the Canadian Environmental Assessment Act and regulations require that the environmental assessment track be determined according to the project as proposed; it is generally not open to a responsible authority to change that level. The responsible authority was free to use any and all federal-provincial coordination tools available, but it was still required to comply with the provisions of the Canadian Environmental Assessment Act pertaining to comprehensive studies. By conducting only a screening study, the responsible authority acted without statutory authority. A link to the full decision is <a href="http://scc.lexum.umontreal.ca/en/2010/2010scc2/2010scc2.html">provided here</a>. David Crocker

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More Environmental Regulation by Municipalities

Thu, 21 Jan 2010 13:48:00 PST

The Town of Oakville is venturing into the realm of regulating environmental issues. It recently announced that Council will consider a by-law for the reporting and regulation of the amount of fine particulate companies can emit in Oakville. A copy of the proposed by-law can be found by clicking <a href="http://www.oakville.ca/Media_Files/PPTownBy-law2009-197.pdf">here</a>. This would seem to be part of an increasing trend by municipalities to regulate environmental issues within their boundaries. Toronto has recently implemented restrictions on pesticide use, a requirement for businesses to charge for plastic bags and a Toxics Right to Know by-law that requires businesses to annually file public reports on their environmental releases of 25 toxic substances of "priority health concern". Oakville's proposed by-law goes much further than the Toronto by-law. If passed in its current form, the by-law would impact proposed and existing facilities with or without Ministry of the Environment Certificates of Approval for air emissions. Existing facilities that may cause or increase a major emission to air and that have an MOE Certificate of Approval are required to apply to the Town within 12 months for a facility-specific approval. The application will require modelling of fine particulate emissions from the facility and in relation to existing levels of fine particulate emissions present in the airshed, mapping, assessment and appraisal. A $25,000 fee is required to accompany the application (ostensibly to pay for a Town peer review of the application). Following peer review, the Town is required to engage in public and agency consultation on the application including a public meeting. Thereafter, Council shall make one of the following decisions: (a) Where, following consideration of the application, Council concludes that the major emission does not have a significant public health effect on the Town, Council may approve the application, with such conditions as Council considers necessary to meet this standard; or (b) Where, following consideration of the application, Council concludes that the major emissions has a significant public health effect on the Town, Council shall (i) refuse to approve the application and, in such case, also decide that in its opinion the applicant's major emission constitutes a public nuisance; or (ii)approve the application on the basis that the public interest favours allowing the applicant's major emission to occur, with such conditions as Council considers necessary to address the public interest. One has to wonder how "public interest" will be interpreted. The regulatory thresholds in the proposed by-law vary considerably from the Toxics Reduction Act (Ontario) and the National Pollutant Release Inventory (Canada) for the precursor pollutants. It is also worth noting that there is no appeals process and significant fines may be levied if a company fails to comply with the by-law including operating without an approved application. The proposed by-law provides for a fine of up to $100,000 for a first offence. The subsequent offence provisions are vague but would appear to be $10,000 per day or part of a day upon which the offence occurs. Some have speculated that the by-law may be the latest missive in a dispute between Oakville and the Ontario Power Authority regarding the construction of a new 900-megawatt gas fired power plant in the Town. A review of the Town <a href="http://www.oakville.ca/22938.htm">website</a> confirms that the by-law is in direct response to the new power plant. According to materials produced by the Town, the rationale behind the by-law is to protect the health of Oakville residents from the effects of fine particulate matters by collecting information on industrial emissions of fine particulate and implementing regulatory controls for "major emitters." However, the by-law does not address other sources of fine particulate emissions, such as vehicular and residential emissions, which account for two-thirds of the fine particulate in the air according to statements made by Oakville representatives. While the objective may be laudable, the by-law leaves much to the discretion of the Town, and Town Council in particular. For example, the definitions of "assessment", "precursor pollutant" and "volatile organic compounds" can be defined by the Town and it is up to Town Council to determine whether a major emission has a significant public health effect on the Town, the necessary conditions that should be imposed on a major emitter (whether it has a significant public health effect or not) and whether the public interest overrides a significant public health effect on the Town. Consultation with some affected businesses was held on January 19th. A public session is scheduled for tonight and comments are required by January 25. The matter is expected to proceed to Council only a week later on February 1, 2010.

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New legislation: Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 (Ontario)

Thu, 14 Jan 2010 11:24:00 PST

On a date to be proclaimed, the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 (Ontario) will come into force. This Act received Royal assent as part of the Good Government Act, 2009 passed on December 15, 2009. The Act applies to prescribed adjudicative tribunals. Such tribunals will be prescribed as part of the regulations, which have yet to be promulgated. The Act sets out several public accountability documents that are to be drafted by each adjudicative tribunal, including a mandate and mission statement, a public consultation policy, a service standard policy, an ethics plan, and a member accountability framework. <ul> <li> The consultation plan must describe whether and how the tribunal will consult with the public when it is considering changes to its rules or policies.</li> <li> The service standard policy must set out the standards of service that the tribunal intends to provide and a process for making, reviewing and responding to complaints about the tribunal's service.</li> <li> The member accountability framework must contain a description of the functions of the members of the tribunal and a description of the skills, knowledge, experience, other attributes and specific qualifications required of a person to be appointed as a member of the tribunal as well as a code of conduct for the members of the tribunal.</li> </ul> The Act also requires adjudicative tribunals to prepare governance accountability documents, including a memorandum of understanding, a business plan and an annual report. The memorandum of understanding is to be entered into with its responsible minister and must contain the financial, staffing and administrative arrangements for the tribunal, the accountability relationships of the tribunal, the recruitment, orientation and training of the tribunal's members and the tribunal's planning and reporting requirements. Where the adjudicative tribunal is part of a "cluster", the mandated public accountability documents and governance accountability documents must be jointly developed, prepared and entered into. Recently, the Assessment Review Board, Board of Negotiation, Conservation Review Board, Environmental Review Tribunal, and Ontario Municipal Board were arranged into a cluster, called the Environment and Land Tribunals, under the oversight of Michael Gottheil. Mr. Gottheil acts as the new cross-appointed Chair, accountable for all the Environment and Land Tribunals. His office is intended to be responsible for the detailed Memorandum of Understanding with the Minister to govern the management of the cluster. Such restructuring is intended to help reduce hearing time, writing time and disposition time, promote efficient use of administrative and professional support, enhance consistency in tribunal practices, procedures and decision making, and increase transparency and community engagement. Until the Regulations or Directives provide more detail as to the content of the public accountability and governance accountability documents, it is not entirely clear how such laudable goals will be achieved. For example, will the tribunals set hard turnaround dates for dispositions? Will decisions from all the tribunals be available electronically? Currently access standards vary across the Environment and Land Tribunals from comprehensive to non-existent. Without more concrete requirements, it is difficult to project the effectiveness of these reforms in promoting accountability, transparency and consistency. The Act also provides for a selection process for the appointment of members to adjudicative tribunals. The process is to be competitive, merit-based and public, and candidates are to assessed based on prescribed criteria, including: <ul> <li> Experience, knowledge or training in the subject matter and legal issues dealt with by the tribunal;</li> <li> Aptitude for impartial adjudication;</li> <li> Aptitude for applying alternative adjudicative practices and procedures that may be set out in the tribunal's rules.</li> </ul> The public recruitment process must also set out the skills, knowledge, experience, other attributes and specific qualifications required of a person to be appointed a board member. This process appears to only apply to the appointment process, not to reappointments of members. Reappointments do not appear to require a further competitive process. However, every reappointment requires the recommendation of the Chair who is to be consulted on these prescribed criteria. There has also not been any cap placed on the number of times a member can be reappointed, which follows the recommendations set out in comments received on the draft legislation.

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Significant Amendments to Ontario's Brownfields Regime

Wed, 13 Jan 2010 12:48:00 PST

As announced here last week, the Ontario government has quietly adopted significant and long-awaited changes to the brownfields regulation, O. Reg. 153/04 (Records of Site Condition). The amending regulation was made December 9 and filed December 29 with no fanfare. Not even a press release can be found on Ontario government websites. Some of the changes were the subject of extensive consultation with stakeholders over the past several years. However, other changes are brand new and will take some time to digest. The most significant change is the introduction of new "Soil, Ground Water and Sediment Standards for Use Under Part XV.1 of the Environmental Protection Act." These are standards for determining whether a property is "clean enough" for an intended land use. The new standards, which were only posted on the Environmental Registry last week, are dated July 29, 2009. However, the new standards do not take effect until July 1, 2011. They provide for more stringent standards for many chemical parameters. In addition, standards have been added for parameters that were not included in the previous version of the standards dated March 9, 2004. As a result of the more stringent standards for many parameters, it is widely expected that the redevelopment of brownfield sites will be more time-consuming and costly than in the past. This would seem to run counter to the stated intention behind the Regulation to facilitate the reuse of brownfields properties. The amendments, many of which do not take effect until July 1, 2011, can be grouped into the following 5 areas: 1. Record of Site Condition Integrity A Record of Site Condition (an "RSC") must be filed whenever property use changes to a more sensitive use as determined under Part XV.1 of the Environmental Protection Act and O. Reg. 153/04. The Ministry says that the amendments pertaining to the filing of RSCs will result in consistency in environmental site assessments leading to greater confidence in RSCs. The changes include: <ul> <li> Specified minimum requirements for conducting and supervising Phase One and Phase Two environmental site assessments</li> <li> Changes to the RSC submission and filing process, including provision for the Ministry to conduct a technical review before the RSC can be filed.</li> <li> New conflict of interest restrictions for qualified persons who conduct environmental site assessments.</li> </ul> 2. Streamlined Risk Assessment Risk assessment is an option for property owners who want to file an RSC when their property does not meet the generic site condition standards. It can be very time-consuming to obtain Ministry approval of a full risk assessment. As such, the Ministry has introduced a streamlined risk assessment process intended to expedite brownfields development. Once the amendments are in effect July 1, 2011, a modified generic risk assessment can be prepared using a web-based approved model. 3. New Standards The March 9, 2004 standards were based on science available prior to 1996 and required updating. In March 2007 proposed new standards were posted on the Environmental Registry. Many concerns with the proposed standards were raised by stakeholders and the scientific community. Further changes were made and another set of proposed standards were posted in October 2008. The final form of the standards can be found in a document dated July 27, 2009 and posted on the Environmental Registry last week. The Ministry says the new standards "reflect changes made as a result of comments received from both postings and consultations with stakeholders and the brownfields redevelopment community. The amendments update standards to reflect advances in science, strengthen protection of human health and the environment and increase confidence in RSCs." The changes that will take effect July 1, 2011 include: <ul> <li> Improved models for soil and ground water</li> <li> Protection for additional ecological species</li> <li> Updated toxicity information</li> <li> New standards for several contaminants:</li> </ul> o Dichlorodifluoromethane o Dioxane - 1, 4 o Hexane (b) o Petroleum Hydrocarbons in non-potable groundwater o Trichlorofluoromethane o Uranium <ul> <li> As well, standards for shallow soil properties and properties within 30m of a water body have been clarified with two new tables applying to shallow soil properties and two new tables will apply to properties within 30m of a water body</li> </ul> 4. Complementary Amendments A series of additional amendments have been made for the stated purpose of supporting the overall goal of brownfields reform by clarifying various technical matters for property owners and people supervising or conducting environmental site assessments or site remediation activities. These amendments pertaining to soil brought to an RSC property include the following provisions: <ul> <li> Soil may be brought to an RSC property provided it will meet the applicable generic standards or standards specified in an approved Risk Assessment for the property that includes a soil management plan.</li> <li> Soil can be brought to any RSC property if it meets the standards in Table 1 of the Soil, Ground Water and Sediment Standards.</li> <li> Soil samples must be collected and analyzed before the soil is brought to the property.</li> </ul> The amendments set conditions on the properties to which soil may be brought (other than where the soil meets Table 1 standards) to reduce the likelihood that soil with contaminants present will be brought to a property where none previously existed. These conditions include: 1. The property is being used or was used in whole or part as an industrial property or a specified commercial property (e.g. gas station, dry cleaners); 2. A potentially contaminating activity on, in or under the property has been identified as occurring or having occurred; 3. No previous RSC has been filed, and 4. A contaminant of concern has been identified. 5. Implementation and Transition In general, the regulatory amendments are intended to come into effect on July 1, 2011. For RSCs that have already been filed, a change in standards or other regulatory rules will not impact them. Furthermore, all existing RSCs will continue to provide owners the same limited immunity from Ministry orders as in the past. However, moving forward, the Ministry will require that the new rules must be met. The amended Regulation includes transition rules, which purport to provide a balanced and fair approach to implementing the amendments. They recognize that some complex redevelopment projects that may be underway will not have reached the stage of submitting RSCs prior to July 1, 2011, when the amended regulation comes into effect. As a result, the transition rules allow a property owner to continue to submit a RSC based on the March 9, 2004 standards allowing additional time to complete projects beyond July 1, 2011, if necessary, provided the owner follows the rules and submits an RSC before January 1, 2013. In order to take advantage of transition provisions, notice has to be provided to the Ministry between July 1, 2010 and December 31, 2010 and the owner must certify that certain requirements have been met. Click <a href="http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTA0NTcw&statusId=MTYzMDcw&language=en">here</a> for a link to the posting of the amended Regulation on the Environmental Registry. Please contact any member of our Municipal, Planning and <a href="http://www.davis.ca/en/practice-area/Environmental-Law">Environmental Law</a> group if you have questions about how the amended Regulation will impact you or your business.

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Amendments to the Clean Water Act, 2006 Technical Rules: Assessment Report

Thu, 07 Jan 2010 11:30:00 PST

On November 16, 2009 amendments to the "Clean Water Act, 2006 Technical Rules: Assessment Report" were finalized by the MOE and posted on the EBR at <a href="http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTA3NDU3&statusId=MTYyNTU3&language=en">EBR Posting</a>. The Clean Water Act requires the development of science-based Assessment Reports to support the preparation of Source Protection Plans and policies by Source Protection Committees in each of the source protection areas in Ontario. The contents of Assessment Reports are set out in the Clean Water Act, its Regulation 287/07 and the Technical Rules: Assessment Report, which also stipulates the various methodologies that can be applied in drafting such Reports. Assessment Reports must identify and evaluate the vulnerability of groundwater and surface water, consider the activities or conditions that threaten such drinking water sources, and apply a rank to each of the identified threats. The amendments are intended to provide more clarity with respect to the content of Assessment Reports and to provide more flexibility to Source Protection Committees to address local conditions. For the development of Assessment Reports and Source Protection Plans, the Clean Water Act first requires the preparation of Terms of Reference, to establish the relationships and division of responsibilities between the municipalities, conservation authorities and Source Protection Committees, as well as to identify drinking water sources in a source protection area. Terms of Reference documents are being prepared for each of the 40 source protection areas in the province. The Minister approved a number of Terms of Reference documents in July and August of 2009, including for the Toronto and Region Source Protection Area, the Central Lake Ontario Source Protection Area, the Credit Valley Source Protection Area, the Grand River Source Protection Area, the Nottawasaga Valley Source Protection Area and several others. For Source Protection Committees with approved Terms of Reference documents, the newly amended Technical Rules: Assessment Report will be followed in the Assessment Report preparation and consultation process. As Assessment Reports must be completed within 12 months of a Terms of Reference approval, it is anticipated that Assessment Reports will be submitted for approval throughout 2010, with Source Protection Plans to be submitted to the MOE in 2012. For more information on the Technical Rules and its amendments, the Clean Water Act or the preparation and implementation of Source Protection Plans, please consult the following links: <a href="http://www.ene.gov.on.ca/en/water/cleanwater/cwadocs/Tech_Rules_For_Assessment_Report_16Nov09.pdf">Technical Rules as of Nov 16, 2009</a> <a href="http://www.ontario.ca/cleanwater">Ontario clean water webpage</a> <a href="http://www.ene.gov.on.ca/envision/env_reg/er/documents/2009/010-7573%202.pdf">Technical Rules Glossary</a> <a href="http://www.ene.gov.on.ca/programs/5970e01.php">Source Protection Fact Sheet</a> <a href="http://www.ontario.ca/ONT/portal61/drinkingwater/News?docId=279892&lang=en">MOE News Release</a>

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Ontario Record of Site Condition regulations substantially amended

Mon, 04 Jan 2010 14:59:00 PST

On December 9, 2009 significant <a href="http://www.e-laws.gov.on.ca/html/source/regs/english/2009/elaws_src_regs_r09511_e.htm">amendments to O. Reg. 153/04 (Records of Site Condition)</a> were made. They were filed on December 29, 2009. The road to a successful risk assessment has become much more prescriptive. Descriptions of the changes may be found in the Ontario Ministry of the Environment's <a href="http://www.ene.gov.on.ca/publications/6871e01.pdf">Overview of Amendments to Ontario Regulation 153/04</a> and the Ministry of Municipal Affairs and Housing's <a href="http://www.mah.gov.on.ca/AssetFactory.aspx?did=5961">Stepping up Ontario's Action on Brownfields: New Regulations and Standards</a> pamphlet. The reforms are intended to achieve the following: <ul> <li> create a more predictable and transparent (and prescriptive) process for submitting records of site condition ("RSCs") by clarifying what environmental site assessment work must be done to submit a RSC and allowing the Province to check and in some cases review the integrity of submissions before a RSC is filed to the Registry;</li> <li> improve the protection of human health and the environment by providing <a href="http://www.ene.gov.on.ca/envision/env_reg/er/documents/2009/010-4642%20Standards.pdf">updated soil, sediment and groundwater standards</a> based on new science;</li> <li> offer a more timely and cost effective approval in some circumstances by implementing a new "modified generic" or streamlined risk assessment as an alternative to meeting generic standards and completing the traditional risk assessment process;</li> <li> clarify liability for property owners by allowing those who have not caused pollution to enjoy the protection RSCs give from provincial orders so long as contaminants do not migrate beyond the property boundaries above specified levels, and provided that the owners meet other conditions for protection.</li> </ul> The Ministry of the Environment and other ministries are in the process of developing new guidelines to accompany the regulatory reforms. Several fact sheets and other background information are available on the <a href="http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTA0NTcw&statusId=MTYzMDcw&language=en">EBR posting for the amendments</a>. Stay tuned for further details.

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Minister Prentice Tables Environmental Enforcement Bill

Tue, 10 Mar 2009 10:38:00 PDT

Posted by Jonathan Cummings and Jennifer Cleall On March 4, 2009, the Minister of Environment, Jim Prentice, introduced the Environmental Enforcement Bill (the "Bill") in an effort to constrain poachers, wildlife smugglers and polluters through the use of more comprehensive enforcement tools and increased fines. The Bill seeks to enhance effectiveness and enforcement of environmental legislation by making amendments to 9 existing acts: the Canada Wildlife Act; the Canadian Environmental Protection Act, 1999; the Migratory Birds Convention Act, 1994; the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act; the Antarctic Environmental Protection Act; the Canada Parks Act, the International River Improvements Act; the Saguenay-St. Lawrence Marine Park Act; and the Canada National Marine Conservation Areas Act (the "Acts"). One of the of the primary changes to be instituted in the Acts is the introduction of minimum fines for serious offences and the increase of maximum fines, the proceeds of which will be paid into an Environmental Damages Fund supporting local environmental initiatives or research. The Bill includes the identification of clear objectives for sentencing related to environmental offences, these being deterrence, denunciation and restoration. Another change made by the Bill is the enumeration of what will be considered aggravating factors or mitigating factors when sentencing. As well, the Bill institutes higher ranges of fines for corporate offenders. In conjunction with this, it establishes a public registry on which all corporate offenders are to be listed and requires all convicted corporate offenders to notify their shareholders of their conviction(s). The changes to the Acts will also input harsher penalties for repeat offenders, such as double fines, and will allow for the suspension and abrogation of permits, authorizations and licenses of offenders upon conviction. The changes provide for the creation of regulatory fines for less serious offenses, streamlining the process and enabling the quick punishment of offences which would otherwise unnecessarily consume resources or be ignored. In the view of accomplishing such new and effective methods of enforcement the Bill also proposes that there be an increase in funding and an increase in the hiring of another 106 enforcement officers. Read the full press release <linkhere http://www.ec.gc.ca/default.asp?lang=En&n=714D9AAE-1&news=FF3737AB-7757-4C49-A477-C8FD21750872>here</link>. See Environment Canada's <linkhere http://www.ec.gc.ca/default.asp?lang=En&n=714D9AAE-1&news=2ADA2898-0852-46C6-97CF-C27DF9FF8D00>website</link> for a more detailed overview of the Bill or of the new <linkhere http://www.ec.gc.ca/default.asp?lang=En&n=714D9AAE-1&news=20D9CEF0-0991-4A6F-A12E-FC132BDF06CA>penalties and sentencing</link> which go along with it.

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OSC releases Staff Notice calling for improved environmental disclosure

Wed, 02 Apr 2008 14:46:00 PDT

Reporting issuers must improve their disclosure of known and contingent environmental liabilities in continuous disclosure documents. That is the message of the Ontario Securities Commission’s<a href="http://www.osc.gov.on.ca/Regulation/Rulemaking/Current/Part5/sn_20080229_51-716_enviro-rpt.jsp"> Staff Notice 51-716 on Environmental Reporting </a> (the “Staff Notice”), released February 27, 2008. The Staff Notice is based in part on a survey of 35 reporting issuers. The OSC found that the majority of these issuers had made insufficient disclosure of material environmental matters in their annual financial statements, management discussion and analysis (MD&A), and annual information forms (AIF), as applicable. The Staff Notice is critical of the use of boilerplate language to address environmental matters. Instead, it calls for disclosure of known and contingent environmental liabilities that is sufficiently detailed to allow investors to make informed decisions about buying, selling, or holding the securities of the issuer. To be sufficient, the disclosure must include not only a detailed discussion of the environmental liabilities, but also quantitative estimates of those liabilities, where quantitative information is “reasonably available.” Environmental disclosure has been required for some time pursuant to National Instrument 51-102 Continuous Disclosure Obligations. However, this is the first time that the OSC has provided specific guidance on exactly what type of disclosure is required. Such Staff Notices are typically the OSC’s first volley when attempting to improve compliance with a particular aspect of securities regulations. Non-compliant reporting issuers can expect OSC enforcement actions, and the shareholder litigation they trigger, to follow. A more detailed discussion of the Staff Notice is available in our<a href="http://www.davis.ca/publication/OSC-Staff-Notice-51-716-Environmental-disclosure-must-be-improved-says-the-Ontario-Securities-Commission.pdf"> Davis LLP online bulletin</a>. <linkhere sn_20080229_51-716_enviro-rpt.jsp=""><linkhere osc-staff-notice-51-716-environmental-disclosure-must-be-improved-says-the-ontario-securities-commission.pdf=""></linkhere></linkhere>

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Key Kearl oil sands permit dries up in wake of Federal Court decision

Tue, 01 Apr 2008 09:51:00 PDT

Posted by Andrew Lord The federal government <a href="http://www.cbc.ca/money/story/2008/03/31/oil-water.html">reportedly revoked Imperial Oil's permit to take water</a> for the planned Kearl oil sands project. Imperial Oil's legal challenge of that decision is expected to be heard in May. Imperial predicts that the battle to recover the permit to take water could delay the start of production by a year or more. The $8 billion project was scheduled to start producing 100,000 barrels of bitumen a day in 2011. The decision to revoke the permit, which was made by the Department of Fisheries and Oceans, cited a recent ruling by the Federal Court concerning the environmental assessment ("EA") of the project. The Federal Court did not take issue with any conclusions in the EA about water. However, the court did find that the EA failed to justify the conclusion that the project would produce an insignificant quantity of greenhouse gases. It ordered the joint Alberta-Federal panel to provide cogent reasons for that conclusion. For more information about the Federal Court decision, particularly its implications for the federal government's climate change policy, see <a href="http://www.davis.ca/en/blog/Renewable-Energy-and-Sustainable-Development-Group/2008/03/18/Intensity-of-greenhouse-gas-debate-continues-to-increase">this posting on the Davis LLP Renewable Energy and Sustainable Development blog</a>. These recent developments are significant set-backs for Imperial Oil's Kearl project. They may also signal that the federal government is beginning to scrutinize the overall environmental impact of the development of the oil sands more closely.<linkhere oil-water.html=""><linkhere intensity-of-greenhouse-gas-debate-continues-to-increase=""></linkhere></linkhere>

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Consultations Begin-- 2008 Amendments to the Building Code

Tue, 19 Feb 2008 06:54:00 PST

Submitted by Alexis Alyea Starting February 15, 2008, the Ontario Ministry of Municipal Affairs and Housing will begin the public consultation process with respect to proposed amendments to the Building Code. These amendments contemplate requiring fire sprinklers in multiple-unit residential buildings over three storeys in height, as well as introducing authorization for the establishment of programs to enforce the maintenance and operation of existing smaller (less than 10,000 litres per day) septic systems. Information sessions will be held in late March and early April 2008, and comments can be submitted until May 1, 2008. The consultation paper can be viewed here: <a href="http://www.obc.mah.gov.on.ca/Page3005.aspx">http://www.obc.mah.gov.on.ca/Page3005.aspx</a> The Building Code was last amended in 2007 by O. Reg. 137/07, which updated the definition of “applicable law” in s. 1.4.1.3 (Division A) to reflect the City of Toronto Act, 2006 and changes to the Planning Act. Specifically, the provisions relating to parkland dedication (s. 42 of the Planning Act) and by-laws under O. Reg. 608/06 (Development Permits) became “applicable law” for the purposes of the Building Code, along with the sections of the new City of Toronto Act, 2006 that relate to site plan control (s. 114) and the fortification of land (s. 102(3)). <linkhere page3005.aspx=""></linkhere>

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Proposed Ban on the Cosmetic Use of Pesticides

Mon, 18 Feb 2008 14:14:00 PST

Submitted by Alexis Alyea On January 18, 2008 the Ontario Ministry of the Environment posted a “Notice of intent to introduce legislation that would ban the cosmetic use of pesticides in Ontario” on the Environmental Registry. The MOE is inviting comment on the Notice until February 18th, 2008. The proposed ban would cover herbicides, insecticides, fungicides, and combinations thereof, and focus on cosmetic applications, such as their use on lawns, private gardens, parks and school yards. The legislation would target cities and towns, and would incorporate a number of important exemptions. For example, pesticides used in agricultural applications, on golf courses, and for public health purposes (such as for combating West Nile) would all be excluded. Golf courses, however, would be required to develop pesticide use plans. The MOE is seeking comments on five particular areas. Comments should consider the proposed focus of the ban on cosmetic applications; the limiting of the ban to cities and towns; the golf course exemption and accompanying proposal regarding pesticide use plans; a proposed 3-year phased-in implementation; and, potentially widening its scope to also include a ban on the sale of cosmetic pesticides. The MOE intends to introduce the legislation in the spring of this year. The full text of the Notice can be found at: <a href="http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTAyNTUz&statusId=MTUzMzE3&language=en">Ontario Environmental Registry</a> (EBR Registry No. 010-2248) <linkhere noticeid="MTAyNTUz&statusId=MTUzMzE3&language=en"></linkhere>

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Province releases proposed final built boundary for Places to Grow

Tue, 20 Nov 2007 15:08:00 PST

On November 20, MPIR released the mapping for the "proposed" final built boundary as referred to in Places to Grow. Once the boundary is final, municipalities will be required to include it in their official plan conformity exercises to implement Places to Grow. It is the line within which the 40% intensification target is to be achieved beginning in 2015. The province will continue to accept submissions with respect to any necessary refinements to be made to the boundary, based upon the detailed methodology which is set out in the accompanying technical paper. The maps and technical paper can be found at: <a href="http://www.pir.gov.on.ca/english/growth/tech.htm">http://www.pir.gov.on.ca/english/growth/tech.htm</a><linkhere tech.htm=""></linkhere>

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