ABORIGINAL LAW – Macdonald & Sager LLP

Municipal Wastewater Charges

Barriston — Tue, 05 Jun 2018 18:49:37 +0000

Most municipalities calculate sewage rates based on water consumption. This is likely based on the idea that what goes in must come out, but that is not always the case. Not all of the water taken will enter the sewage system, like when it is used for activities such as watering lawns and gardens. On the other hand, other waste products enter the system in addition to water, which increases the amount processed by the municipality.

People often argue that basing sewage rates on water consumption is not fair. The Court has found that even when a property owner can prove that the amount of waste leaving the property is less than the water being consumed, it is still reasonable for a municipality to make the policy decision to charge based on water consumption.

In the Toronto case of Nylene Canada Inc. v Corporation of the Town of Arnprior (2017), the polymer manufacturing facility of Nylene attempted to hold the town of Arnprior liable for the difference between the amount it charged the company and the actual volume of wastewater discharged.

Nylene claimed that it had been overcharged since 2005 after it installed a deduct meter, which told the company it was discharging 7.5 to 9 million fewer gallons of water per year than what the town had been charging based on water consumption. It claimed that this was a violation of section 394(1)(c) of the Municipal Act, 2001, which prohibits the imposition of a fee or charge based on the use, consumption or purchase of a service other than one provided by the municipality.

The Town’s defence was that it was neither possible nor practical to accurately measure wastewater discharge, calling this a matter of administrative efficiency. Arnprior based its charges on a 2004 study which made recommendations to assist municipalities in meeting their obligation to move toward a financially sustainable drinking water and wastewater system.

The Court found that Arnprior was not in violation of s394(1)(c) because the Town itself provided the wastewater services and did not impose a charge external to its relationship with the ratepayer. It also found that Arnprior suffered a slight loss on the amount charged for wastewater services each year until 2014. The Court considered that the Town had made a reasonable attempt to estimate the costs of wastewater services and that it had not made a profit from these charges. The Court stated that the fees were not arbitrary given the direct correlation between the amount charged and the cost of operating wastewater services.

The Court also referenced case law to state that policy decisions attract immunity along with courses of action based on such policies provided that the decision-making process was rational and made in good faith. The Court noted that decisions associated with economic, political and social considerations are policy decisions and are to be decided by the government rather than courts.

Nylene brought this decision to the Toronto Court of Appeal who dismissed the appeal on September 12, 2017. On May 31, 2018 the Supreme Court of Canada refused leave to appeal.

By Sarah Hahn and Jacklyn Tuckey

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Visiting the Toronto Local Appeal Body

Barriston — Mon, 05 Feb 2018 21:48:17 +0000

The first Toronto Local Appeal Body “TLAB” hearing will be taking place later this month and digital evidence demonstrations are being held to help prepare those who will be involved with the first hearings.

Here are some of my observations of the facilities and procedures after attending a demonstration yesterday:

The TLAB is located on the second floor of the Toronto Northern District Public Library located at 40 Orchard View Blvd. I parked across the road in the RioCan underground parking for the Yonge Eglinton Centre. Rates during the day are $3 per 20 minutes up to a maximum of $20.

There are two hearing rooms and they are small. We were gathered in the ‘big’ room. At one point, there were ten people in the room with several of us standing and it didn’t look like there would be room for any more. I understand that there is a larger room in the library that will be used once or twice per month for hearings that need to accommodate more people, but an average hearing may be a tight squeeze.

This [big] room was extremely warm even with the door open, so be sure to wear your summer suit until the permanent facility is completed in the new year. This new space will be down the hall from where the TLAB currently resides and will hopefully have better airflow.

The rooms each have a monitor on the wall that appears to be about 36” wide. It is connected to a computer with no internet access. TLAB staff will preload this computer with the disclosed documents so they are available to the parties to access during the hearing. There is one wireless keyboard and two wireless mouse devices.

You should bring your own laptop or tablet. There is a set of connectors for parties to use to hook up their device to the monitor. Only one device can be hooked up at one time so parties will need to share control of the monitor.

There are various hook ups, including connectors for Apple devices and HDMI. There are no micro connectors so Android devices may not be compatible and there are no wireless options.

The TLAB is working on a digital policy binder which will be located on the desktop and contain general policy documents. They will consider these documents ‘pre-disclosed’ so that eventually parties will not need to submit copies of the Official Plan, Provincial Policy Statement, etc. For now, all policy documents that a party plans to reply upon should be disclosed.

Disclosed documents will be contained in a folder on the computer desktop. They will be grouped into sections based on the party who filed them.

Documents can be edited and highlighted during the hearing and a party may ask permission from the Board member to save the edited copy.

A party may wish to put together a PowerPoint presentation to help with their evidence. This is permitted so long as all information contained in the presentation has been properly disclosed. It is safest to have the presentation prepared in time to disclose before the deadline.

The TLAB does not have any special disclosure rules for jurisprudence. If a lawyer has not submitted his or her cases to the Board before the mandated timeline for document disclosure, they need to be granted permission from the Board Member to be able to refer to them. For this reason, it is recommended that all cases to be relied upon are submitted before the disclosure deadline.

The hearing will be audio recorded but not transcribed. A party may arrange to have a transcription completed at their own expense. Audio recordings will be made available to the public after the hearing.

Although hearings commence at 9:00am, the office opens at 8:30 so a party may wish to arrive earlier to become familiar with the set up.

I understand that further policies may be implemented once enough hearings have taken place to get a feel for how the process is working.

By: Sarah Hahn

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Proposed changes to the OMB

Barriston — Thu, 18 May 2017 21:48:56 +0000

On May 16, 2017, it was announced that the government will be presenting legislation which, if passed, will replace the Toronto Municipal Board with a ‘Local Planning Appeal Tribunal’. The Ministry of Municipal Affairs and the Ministry of the Attorney General have stated that these changes will “give communities a stronger voice” and make the appeal process “faster, fairer and more affordable”.

Faster?

Although the new process is supposed to be a faster alternative to the OMB, the procedure does not seem to be especially quick. Once an appeal is made, the new Tribunal may overturn a decision if it finds that provincial policies or municipal plans were not followed. Instead of making a new determination, the new Tribunal will then send the matter back to Council to make a decision based on the applicable planning policies.

Once a matter is sent back to Council, Council will have 90 days to issue a new decision. This turnaround time could be problematic in communities where Council agendas are already packed tight with other matters, and where meetings are suspended during the summer months. It also gives municipal planning staff little time to prepare additional planning reports to help properly guide the decisions of Council.

If Council is found to have failed at this second attempt, the Tribunal will step in and make a final decision. The Tribunal will also step in if Council does not make a new decision within 90 days, after which time the matter will be sent back to the Tribunal to wait in line for a hearing date. There is also a mandatory case conference and potential mediation aspect which will no-doubt cause further delays.

Fairer?

The government also anticipates that the legislation will not permit certain planning processes to be appealed. Such processes include the approval of new Official Plans and major updates to Official Plans. If no appeal mechanism is put in place, there may be constitutional issues to contend with.

If municipal Official Plans (upon which all decisions of Council are to be based) are not appealable, there is a strong argument that natural justice would be denied to those who are impacted by them. It is unclear as to how the government will present policies that do not contemplate any appeal of such an important planning instrument.

This is especially concerning given how crucial Official Plans will be when making a decision on an application and when the new Local Planning Appeal Tribunal will get involved, because according to the Ministry, “the tribunal would only be able to overturn a municipal decision if it does not follow provincial policies or municipal plans”.