Canada: Real Estate & Urban Development @ Gowlings - September 29, 2011

Edited by Manuel Martins

In this issue:

  • Waterloo Residential Rental Housing Bylaw
  • Intensification in Ontario: The Challenges of Implementing Ontario's New Growth Plan
  • Bill 68, Open For Business Act, 2010


By: Graham H.H. Darling

On April 1, 2012, a new rental housing licensing program and bylaw ("Rental Licensing Bylaw") comes into effect in the City of Waterloo (the "City").  With this bylaw the City is going to implement a program to license and regulate the business of renting residential units within the City, but does not include apartment buildings, group homes, hotels and certain regulated housing such as long-term care homes. The Rental Licensing Bylaw was approved by City council on May 9, 2011, and a copy can be found on the City's website.1

Some of the stated objectives of the Rental Licensing Bylaw are, among other things, to protect the health and safety and the human rights of renters, to ensure that essential services are provided to renters (such as heating and water) and to protect the character and stability of the City's residential neighbourhoods. As the City is home to two universities, the University of Waterloo and Wilfrid Laurier University, the City's desire to license and regulate residential rental housing is likely motivated by a concern that neighbourhoods surrounding the universities may contain low-quality or dilapidated student housing that could lower the over-all quality of these neighbourhoods. That being said, the Rental Licensing Bylaw does not specifically target student housing but applies across the City.

During the consultation process for drafting the bylaw, the City heard from a variety of stakeholders, such as landlords and tenants, and the Ontario Human Rights Commission (the "OHRC").  Some concerns that the OHRC has with the Rental Licensing Bylaw is that it will further limit the housing options for certain marginalized groups and decrease the supply of affordable housing. And for landlords the Rental Licensing Bylaw requires annual licensing fees be paid to the City, various reports and plans must be submitted to the City and prescribed training that must be undertaken by the landlord, all of which means more time and money expended by landlords. With the added costs to landlords and the expected decrease in availability of rental housing in the City, it is expected that rental rates will increase and tenants may not be able to find suitable housing.

The City of Oshawa, the City of London and the City of North Bay have also taken steps to regulate rental housing and other municipalities may soon follow with Bylaws similar to the Rental Licensing Bylaw.  The Rental Licensing Bylaw may provide a higher quality and safer supply of housing for renters in the City, however, the added administrative work, costs and the effect on the supply of housing is cause for concern.


1. Rental Housing Licences, Waterloo, ON


By: John Doherty and Roberto Aburto

Imagine 5 years from now you are driving from Toronto to the west end, where you notice the plethora of large buildings and condominiums, which each year increase in number and height. The great height of the downtown core has spilled over and expanded in all directions. In central Mississauga, landscape formerly dominated by just a few buildings is now littered with gigantic structures. Now this trend continues to make its way outside of the GTA, including to revitalized downtown cores in Guelph, Waterloo, Kitchener and Cambridge with growing downtown populations.

The current population of the Golden Horseshoe is 7.8 million. By 2031, the population is projected to increase by an additional 3.7 million people, bringing the total to 11.5 million.

The Province responded to the increase of population with a policy of intensification, whereby cities will be built-up in concentrated areas. This policy will allow the Province and other branches of government and institutions to manage growth by focusing resources, infrastructure and density, into those centralized built-up areas.

In 2005, the Government of Ontario enacted the Places to Grow Act (Ontario) (the "Act"), in recognition of a need for strong planning in the face of significant long term growth of Ontario's population.  The Act recognized that growth plans would need to adapt to different geographic areas and situations. Municipalities were to develop their own phasing strategies to achieve their respective needs.

The preamble of the Act succinctly states the Government's intention:

"The Government of Ontario recognizes that in order to accommodate future population growth, support economic prosperity and achieve a high quality of life for all Ontarians, planning must occur in a rational and strategic way.

The Government of Ontario recognizes that building complete and strong communities, making efficient use of existing infrastructure and preserving natural and agricultural resources will contribute to maximizing the benefits, and minimizing the costs, of growth.


The Government of Ontario recognizes that an integrated and co-ordinated approach to making decisions about growth across all levels of government will contribute to maximizing the value of public investments."1

The first such growth plan to obtain provincial approval was the Greater Golden Horseshoe ("GGH") Growth Plan. The GGH Growth Plan was approved by the Province on June 16, 2006, and extends to boundaries west to Waterloo Region, north to Barrie, and northeast to Peterborough and includes Brant, Haldimand and Northunberland Counties.

The GGH Growth Plan pointed to numerous challenges in sustaining the growing economy, including employment lands being converted from their intended uses, thereby limiting future economic opportunities and the significant resources required to develop more intensive infrastructure.

Section 12 of the Act requires that a municipality or a municipality's planning authorities amend its official plan to conform to the growth plan. Municipalities in the GGH are required to conform with the GGH Growth Plan. These changes must be amended within three years of when the growth plan came into effect.

The three year period has just recently passed. Numerous municipalities have enacted changes to their official plans in order to conform with the Act. Many of these official plans now are under appeal to the Ontario Municipal Board ("OMB").

As an example, one of the first municipalities to have their new official plan move forward to this stage is the Regional Municipality of Waterloo's, Regional Official Plan ("ROP") that was adopted on June 16, 2009, which was later approved with modifications by the Minister of Municipal Affairs and Housing on December 22, 2010.

On January 4, 2011, the Ministry of Affairs and Housing issued a Notice of Decision related to the ROP in accordance with the provisions of the Planning Act (Ontario). In the twenty day appeal period that followed, 26 appeals were filed to the OMB. Appeals relate to a diverse set of issues, including challenges to the rural/urban boundary, the land budget allocating where the growing populations will live and work, as well as, appeals relating to more discrete issues such as how the natural heritage policy is implemented. Similar appeals will address these issues in other communities.

Developers, planning and legal analysts will continue to watch with interest in the next year as these appeals from across the GGH progress through the OMB. The fundamental question resulting from these appeals is: are these policies appropriate to implement the directions set out in the Act?

The OMB has an important job ahead of it, with an appeal process that will likely be quite lengthy and complex. The development community should watch the outcomes of these Growth Plan related appeals with considerable interest as the policies approved by the OMB will shape the future design and urban structure across southern Ontario for the next 20 years.


1. Places to Grow Act, 2005, SO 2005, c 13, preamble.


By: Jacqueline Armstrong Gates

The Open for Business Act 2010, (Ontario) which received Royal Assent on October 25, 2010 contained amendments to the Construction Lien Act (Ontario) ("CLA"); many of which came into effect on July 1, 2011.  These amendments include notice requirements for land intended to be registered under the Condominium Act (Ontario) ("Condo Act"), the removal of the requirement for an affidavit of verification and the facilitation of vacating construction liens and certificates of actions from property records, while protecting the rights of sheltered lien claimants. 

The Notice

Section 33.1 of the CLA requires an owner1 of land, that is intended to be registered under the Condo Act, to publish notice ("Notice") of the intended registration in a Construction Trade Newspaper, at least 5 days and not more than 15 days, excluding Saturdays and holidays, before submitting the condominium description for approval  under the Condo Act.  The Notice must be in the prescribed form and include the name and address of the owner, description of the property and the names and addresses of any contractors who, in the owner's knowledge, have supplied materials or services during the 90 days before the description is submitted for approval.

The consequence of an owner not publishing this Notice is that the owner will be liable to any lien claimants who suffer damages as a result of the owner's failure to notify.

Once a condominium is registered and the individual units have been created as separate parcels on the Ontario Land Registration System, a lien claimant can no longer conduct a search and lien the property as a whole, except by searching each unit, and registering a lien against each unit in that particular condominium.   Such searches and registrations can be quite costly.  By having the Notice published before title of the individual condominium unit is registered and passed on to a buyer, it enables a contractor/lien claimant to become aware of the intended registration and to register a lien on the property as a whole, if it deems it necessary. 

Accordingly, contractors/potential lien claimants should be reviewing the Construction Trade Newspapers to search for Notices of Intention and act accordingly. 


Prior to the amendments to sections 34 and 40 (1) of the CLA, a claim for lien had to be verified by an affidavit of verification, which was typically sworn by the lien claimant.  Now the verification of the claim for lien by affidavit is no longer required.  This step eliminated a redundancy because the CLA provided that a claim for lien can be electronically registered and because Courts have held that the electronic statement in the electronic form was sufficient to satisfy the affidavit requirements.

That being said, since an affidavit of verification is no longer required, those persons who may be cross examined are expanded to include the deponent of the affidavit, the lien claimant, the agent or assignee of the lien claimant or the trustee of the workers' trust fund. 

Accordingly, affiants should be aware of the possibility of being cross-examined.

Sheltered Liens

The last amendments relate to sections 44 and 47 of the CLA.  A lien claimant's right expires if it is not preserved and perfected within the time required in accordance with the CLA.  (Sheltering is an exception to the preservation and perfection rules.)  A lien may be properly "perfected" by allowing the lien claimant to perfect its preserved claim by sheltering under an action commenced by another lien claimant ("the other lien"). 

Historically an issue arose when the other lien was vacated by Court Order, raising questions as to whether the sheltered lien status had changed.  In order to protect the rights of a sheltering lien claimant the CLA has been amended to permit a sheltering lien claimant to proceed with an action to enforce its lien, as though the Order to vacate on the other lien had not been made. 

Accordingly, sheltered liens may continue with some certainty as to their status. 


1. It is important to note that the legislature chose to place this obligation on the "owner" as defined in the CLA rather than "declarant" as the term is defined in the Condominium Act.  Therefore, all parties considered owners under the CLA are caught under this new provision.  This may include mortgagees, general contractors and investors in addition to developers and builders.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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