Canada: Ontario Court Of Appeal Decision Means More Independence For Ontario Municipalities Over Parkland

Last Updated: February 19 2018
Article by Barnet H. Kussner

In a long-awaited decision released on January 29, 2018, a 3-judge panel of the Ontario Court of Appeal unanimously upheld a Divisional Court decision confirming the rights of municipalities to determine how much parkland they require from developers as a condition of development approval under the Planning Act.

WeirFoulds represented both the Town Richmond Hill and the City of Vaughan in this important decision confirming that the Ontario Municipal Board (OMB) has no authority to limit the rates at which municipalities can require developers to convey land for parks or other public recreational purposes.

Section 42 of the Planning Act is the primary means by which Ontario municipalities acquire land for parks or other public recreational purposes. It provides that as a condition of development approval, municipalities can pass by-laws requiring the conveyance of land, or the payment of "cash in lieu" of land, to be set aside for parks and recreational facilities.

The standard rates prescribed by section 42 are based on a percentage of the land to be developed and typically apply to low-density development, such as traditional subdivisions. In the case of residential development, the maximum that can be required under the standard rate is 5% of the area of land to be developed. For higher-density development such as apartments and condominiums, section 42 provides for alternative rates based on the number of units proposed. The prescribed rates are 1 hectare for each 300 units in the case of parkland conveyance, and (as of 2015) 1 hectare per 500 units in the case of cash-in-lieu – or, in both cases, "such lesser rate as may be specified in the by-law" enacted by the municipal council. These are commonly known as the "alternative rate" or the "alternative requirement".

Unlike zoning by-laws, there is no right to appeal a section 42 by-law to the OMB or its soon-to-be successor, the Local Planning Appeal Tribunal (LPAT). However, section 42(4) requires, as a pre-condition to the enactment of a such a by-law, that the municipality have an official plan in effect that contains specific provisions dealing with the provision of parkland "and the use of the alternative requirement".

In 2010, the Town of Richmond Hill adopted a comprehensive new official plan for the municipality. The official plan contained specific policies dealing with the provision of parkland and, among other things, the use of the alternative rate.

The Town's official plan was subsequently appealed to the OMB by numerous landowners. Many of the appellants sought to have the OMB modify the Town's parkland policies by imposing an upper limit (i.e. a "cap") on the alternative rate, at an amount less than what section 42 of the Planning Act authorizes. In 2012 the Town brought a motion before the OMB seeking a determination that it did not have the authority to impose such a cap as a matter of official plan policy; however, in a preliminary ruling the OMB held that it did have that authority, and on that basis it proceeded to hold a hearing which took place over many months in 2013.

Ultimately, in its decision released in 2014, the OMB determined that in Richmond Hill's case there should be an overall cap on the alternative rate - namely, 25% of the land to be developed or its cash equivalent. Citing concerns about the need to provide certainty and transparency and to ensure compliance with Provincial policies respecting intensification and affordable housing, the OMB concluded that this cap "constitutes the correct balance between competing interests".

The Town was concerned that the OMB decision would severely hamper its ability to provide parks and recreational facilities at the service levels mandated by its Parks Plan, which was developed by Town Staff and approved by Town Council in 2013 following an extensive stakeholder consultation process. Accordingly, the Town subsequently sought and obtained leave to appeal the OMB's decision to the Divisional Court. Four other municipalities (Markham, Mississauga, Oakville and Vaughan) intervened in the Court proceedings in support of Richmond Hill.

In a unanimous decision released in September 2016, a 3-judge panel of the Divisional Court overturned the OMB's decision. The Court held that the OMB did not have the legal authority to impose a cap on the alternative rate as a matter of official plan policy. The Court further held that in purporting to do so, the OMB adopted "an unreasonable interpretation of its statutory authority" and wrongly restricted "the Town's use of a mechanism expressly granted to municipalities by the Legislature".

The landowners subsequently appealed the Divisional Court's decision to the Ontario Court of Appeal. However, in its unanimous decision released on January 29th, the Court of Appeal panel dismissed the appeals and upheld the decision of the Divisional Court. The Court of Appeal agreed with the Divisional Court that there was only one reasonable interpretation of section 42, and that by adopting an unreasonable interpretation the OMB "did indirectly what the legislature prohibits it from doing directly – namely, compelling the Town to limit itself to a rate which is less than the statutory prescribed rate". The Court further noted that under section 3(5) of the Planning Act, a municipality was under the same obligation as the OMB to ensure that its use of the alternative rate was in compliance with Provincial policies, including those dealing with intensification and affordable housing.

This decision has significant implications for other municipalities across Ontario – particularly Vaughan and Markham, both of which currently have their official plans under appeal before the OMB.

WeirFoulds Partner Barnet Kussner represented the Town of Richmond Hill before the OMB and in both Courts. WeirFoulds Partner Bruce Engell acted for the City of Vaughan as an intervener before the Divisional Court and the Court of Appeal.

The full Ontario Court of Appeal decision can be viewed here.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Barnet H. Kussner
Events from this Firm
7 Dec 2017, Webinar, Toronto, Canada

FEX Members Jeff Noble, BDO, and Caroline Abela, WeirFoulds LLP, invite you to a complimentary webinar series titled: All About Shareholders.

16 Oct 2018, Conference, Toronto, Canada

Delegates will include CNAR members, provincial and territorial regulatory bodies, other non-profit organizations engaged in regulatory work, federal/provincial/territorial government representatives and others with an interest in regulatory issues.

29 Oct 2018, Conference, Toronto, Canada

WeirFoulds Partner and co-chair, Technology and IP group will be speaking on the topic, "Artificial Intelligence (AI) and the Practice of Law. This session contains 1 hour and 30 minutes of Professionalism Content.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions