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Trade-marks for Municipalities: “Official Marks”
Bruce Banting*
Does your municipal client wish to protect the name, tagline or logo of a public service it provides? Municipalities are eligible to obtain a special kind of trade-mark status not available to commercial enterprises. This protection is in many ways superior to that available through the traditional trade-mark process. The process applies to words and/or designs.
Legal authority
Paragraph 9(1)(n) of the Trade-marks Act, R.S.C. 1985, c. T-13 (the “Act”) contemplates the following process:
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A “public authority” in Canada adopts and uses a badge, crest, emblem or mark as an official mark for services. While “public authority” is undefined in the Act, municipalities are routinely accepted as qualifying.
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The public authority requests the Registrar of Trade-marks to give public notice of the adoption and use of the badge, crest, emblem or mark.
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The public authority pays a fee of $500 (Trade-marks Regulations (1996), S.O.R. 96-195 (the “Regulations”), Part I (Filing), section 12).
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The Registrar of Trade-marks gives public notice of the adoption and use in the Trade-marks Journal (Regulations, paragraph 15(d)).
Upon completion of this simple process the official mark is in place and protected.
Legal protection
Once an official mark is in place:
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“No person shall adopt in connection with a business, as a trade-mark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for, … (n) any badge, crest, emblem or mark … (iii) adopted and used … as an official mark …” (Act, sub-paragraph 9(1)(n)(iii)).
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“No person shall use in connection with a business, as a trade-mark or otherwise, any mark adopted contrary to section 9 …” (Act, section 11).
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“… a trade-mark is registrable if it is not … (e) a mark of which the adoption is prohibited by section 9 …” (Act, paragraph 12(1)(e)).
Thus an official mark is arguably protected against imitators just as well as a traditional trade-mark.
Comparison with traditional trade-marks
The official mark process is simpler, quicker, longer-lasting, and less expensive in the long run, than the traditional trade-mark process.
Almost the entire Act, which is 69 sections long, deals with actual trade-marks. The Act deals with adopting and using trade-marks, marks that can and cannot be used, objections to trade-marks, the application process, registrations, amendments, renewals, licenses, and numerous other matters. Use of a trade-mark agent should be considered. In comparison, official marks are dealt with extremely briefly in the Act, and require just the simple steps of adoption, use, request, payment and public notice. A municipal solicitor can do it himself/herself.
The full trade-mark process can take many months – and much longer if the Registrar or anyone else should object. On the other hand, there is no provision for objection or challenge to official marks, and only a single public notice (given by the Registrar) is required. The process can be completed in only a few months.
An ordinary trade-mark is effective for only 15 years, and must be renewed continually. An official mark is effective permanently – whether it continues to be used or not.
Although the initial fee for protecting an official mark may be slightly greater than the fees establishing trade-mark protection, the official mark is permanent, so no further fees are required.
Power to sell
A municipality is permitted (Act, paragraph 9(2)(a)) to consent to a business adopting, using or registering as a trade-mark, the municipality’s official mark. A fee can be required as consideration for this consent.
Procedure
The municipality should document the adoption (for example by by-law) of the badge, crest, emblem or mark as an official mark for specified services. The municipality should also document the initial use of the official mark.
No official form is prescribed for the request to the Registrar for public notice. However an unofficial form may be available from the Registrar. The key is to provide the basic facts necessary to trigger the official mark process. Hints for format can be gleaned from the formats suggested for trade-mark applications. The full $500 fee must accompany the request.
If all goes well, proof of public notice should be returned after a few months.
Although staff representatives of the Canadian Intellectual Property Office are very helpful, CIPO’s website (http://strategis.ic.gc.ca/sc_mrksv/cipo/welcome/welcom-e.html) is not of much assistance for this relatively rare cousin of the much better-known typical trade-mark.
Conclusion
The process for “official mark” status provides many advantages for municipalities over the traditional “trade-mark” protection for words and designs associated with municipal services.
* Bruce Banting, Solicitor, (905) 688-5821.
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Minor Variances – Post-DeGasperis (October 29, 2007)
Ian Aversa*
Speakers: N. Jane Pepino, Aird & Berlis LLP; Gordon J. Whicher, City of Toronto – Legal Department
Program Chair: John Mascarin, Aird & Berlis LLP
Introduction by the Program Chair – John Mascarin, Partner with Aird & Berlis LLP
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Brief introduction of the Ontario Divisional Court’s judgment in Vincent v. DeGasperis (2005), 12 M.P.L.R. (4th) 1 (“DeGasperis”).
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Brief introduction of the first speaker, Gordon J. Whicher, City of Toronto Legal Department.
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Brief introduction of the second speaker, N. Jane Pepino, Aird & Berlis LLP.
Speaker #1 – Gordon J. Whicher, City of Toronto Legal Department
Summary of the DeGasperis decision:
• “It is incumbent on a committee of adjustment, or the Board in the event of an appeal, to consider each of these requirements and, in its reasons, set out whatever may be reasonably necessary to demonstrate that it did so and that, before any application for a variance is granted, it satisfied all of the requirements.” (Paragraph 11)
- According to Mr. Whicher, this level of analysis is impossible.
• “I pause here to observe that the proper performance of this prescribed four-step exercise will rarely be simple. It requires, without exception, a careful and detailed analysis of each application to the extent necessary to determine if each variance sought satisfies the requirements of each of the four tests.” (Paragraph 20)
- Mr. Whicher agrees with the Court’s finding that this exercise “will rarely be simple”.
• “I agree with the Board’s analysis and interpretation of the law as to whether the obtaining a minor variance is a special privilege. However, in addition to what the Board stated, I would add that the inclusion of the word “may” in section 45 (1) indicates that the jurisdiction given to a committee of adjustment to grant minor variances is permissive and confers on it a residual discretion as to whether or not to grant them even when the four tests are satisfied. In exercising its discretion, a committee is entitled to take into account anything that reasonably bears on whether or not an application should be granted and, in my view, need and hardship are factors that, in appropriate cases, can properly be taken into account. However, even when these factors are taken into account and an application for a minor variance is granted, that does not transform the granting of the minor variance into a special privilege.” (Paragraph 23)
- Mr. Whicher highlighted the significance of conferring a residual discretion on a committee of adjustment.
• “The Board’s application of the remaining three tests can be dealt together. In brief, I am persuaded that the Board’s reasons, taken in their entirety, reveal that the Board failed to interpret and apply these tests correctly. In some instances, the Board erred in its interpretation of the tests; in others, it failed to consider matters that were essential to their correct application. Throughout the Board’s reasons, there are references to the evidence of witnesses whose evidence the Board accepted, but those references do not state what the evidence was and why it was preferred over other evidence. Throughout the Board’s reasons, the focus is on the likely impact of the variances sought with no or little regard for anything else. Of equal importance is the omission of any analysis by the Board of the general intent and purpose of the by-law and the official plan and how the granting of the minor variances sought would maintain those intents and purposes.” (Paragraph 25)
- According to Mr. Whicher, it was commonplace for a committee of adjustment to use a “template checklist” to determine whether an application should be granted.
• “It is incumbent on a committee of adjustment, or the Board in the event of an appeal, to consider each of these requirements and, in its reasons, set out whatever may be reasonably necessary to demonstrate that it did so and that, before any application for a variance is granted, it satisfied all of the requirements.” (Paragraph 11)
- The new duty of a committee of adjustment; the four building blocks must be considered.
Why will it be difficult for a committee of adjustment to adapt post-DeGasperis?
• Subsection 45(10) of the Planning Act states that “[t]he secretary-treasurer shall not later than ten days from the making of the decision send one copy of the decision, certified by him or her, (a) to the Minister, if the Minister has notified the committee by registered mail that he or she wishes to receive a copy of all decisions of the committee; (b) to the applicant; and (c) to each person who appeared in person or by counsel at the hearing and who filed with the secretary-treasurer a written request for notice of the decision, together with a notice of the last day for appealing to the Municipal Board.”
- It will be difficult for reasons to be issued “not later than ten days from the making of the decision” especially in the City of Toronto.
• Currently, municipalities differ in their procedures.
- For example, some municipalities do not receive any planning comments.
• Listing the evidence will be problematic and time consuming.
• Mr. Whicher asked, why even bother? It could be done, theoretically, but it would be very costly.
Section 2.1 of the Planning Act states that “[w]hen an approval authority or the Municipal Board makes a decision under this Act that relates to a planning matter, it shall have regard to, (a) any decision that is made under this Act by a municipal council or by an approval authority and relates to the same planning matter; and (b) any supporting information and material that the municipal council or approval authority considered in making the decision described in clause (a)”.
• An approval authority is not defined in the Planning Act but, according to Mr. Whicher, a municipal council is an approval authority.
• Does “have regard to” mean (a) follow the decision or (b) merely cite the decision in the reasons?
• The Ontario Municipal Board will not have to afford a high degree of deference to a committee of adjustment.
• The Divisional Court only reviews errors of law while the Ontario Municipal Board is not limited to questions of law; in fact, there is a right to an appeal.
Serious challenges following the decision in DeGasperis:
• Committees of adjustment across Ontario will need additional funds in order to improve their decision-making process.
• May not afford a high degree of deference – the Ontario Municipal Board is a policy-led tribunal.
Speaker #2 – N. Jane Pepino, Aird & Berlis LLP
Subsection 45(1) of the Planning Act states:
• “The committee of adjustment, upon the application of the owner of any land, building or structure affected by any by-law that is in effect under section 34 or 38, or a predecessor of such sections, or any person authorized in writing by the owner, may, despite any other Act, authorize such minor variance from the provisions of the by-law, in respect of the land, building or structure or the use thereof, as in its opinion is desirable for the appropriate development or use of the land, building or structure, if in the opinion of the committee the general intent and purpose of the by-law and of the official plan, if any, are maintained.”
- Ms. Pepino highlighted the phrase, “in its opinion”.
• According to Ms. Pepino, DeGasperis established new law by stating that a committee of adjustment has a “residual discretion” to grant or deny a minor variance.
- After a careful and detailed analysis of the four tests, a committee of adjustment must look at section 45 in its entirety.
• According to Ms. Pepino, the rest of the DeGasperis decision is merely a restatement of the law.
Ms. Pepino: An applicant only has five minutes to present their case in front of a committee of adjustment.
- Therefore, start building your record for an appeal by submitting a “mini factum”.
- Highlight how your application is desirable from a planning point of view.
The DeGasperis decision reconfirmed that there is not a so-called fifth test of need or a so-called sixth test of hardship.
A committee of adjustment is conferred with a “residual discretion”.
• The jurisdiction stems from the word “may” in section 45 of the Planning Act.
• A committee of adjustment can take into account “anything that reasonably bears…”
• A committee of adjustment can use their residual discretion to grant or deny an application for a minor variance.
- The minor variance is too important.
- The minor variance is too big.
How should a lawyer change his/her practice following the DeGasperis decision?
• Submit a “mini-factum” (at least when you are before the Ontario Municipal Board).
• Break down the tests individually and provide a careful and detailed analysis of each test.
• Put it in writing.
• File it.
Questions
1. Does the DeGasperis decision, specifically the residual discretion afforded to a committee of adjustment, run counter to established law?
• According to Ms. Pepino, it does not run counter; in fact, it is “quite fitting”.
- A decision must be made within a policy framework.
• Ms. Pepino reminded the audience that, even if it’s already built, an application must be analyzed on its merits.
- According to Ms. Pepino, in a wacky lot (i.e. a pie shaped lot) or a historic position, a hardship argument might have a place.
• The DeGasperis decision reconfirmed that privilege has no place in a minor variance application.
2. Will the law following DeGasperis amount to a denial of natural justice?
• According to Ms. Pepino, it will not.
• According to Mr. Whicher, it will not.
- Not a lot of deference will be afforded to a “quick tribunal” like a committee of adjustment.
- Remember, there is an automatic appeal to the Ontario Municipal Board.
3. What is the Divisional Court in the DeGasperis decision really saying? (Comment from the audience)
• A committee of adjustment and the Ontario Municipal Board have a lot of power and make decisions that have a significant effect on the lives of people.
• They must recognize their power and use it wisely.
4. Does the residential discretion that is conferred on a committee of adjustment open the door for an argument based on bad conduct?
• How broad should the residual discretion be?
• According to Ms. Pepino, bad conduct on the part of one party should not be considered in an application for a minor variance.
* Ian Aversa, Student-at-Law, Aird & Berlis LLP, (416) 863-1500, ext. 2070.
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“Mixed (e)motions” – The Latest on Motions before the Ontario Municipal Board (February 26, 2008)
Leah Ramkaran*
Speakers: Mark R. Flowers, Davies Howe Partners; Barnet H. Kussner, WeirFoulds LLP; Mimi Singh, Counsel, Ministry of Municipal Affairs and Housing
Program Chair: Jason Park, Fraser Milner Casgrain LLP
Introductions
Jason Park began the evening by introducing the speakers, and welcoming the guests. The first speaker, Mark, discussed motions to dismiss and Bill 51. Mimi Singh spoke next, and her presentation focused on s. 43 motions for review. The last speaker of the night, Barnet Kussner, looked at the issue of motions before the Ontario Municipal Board (the “Board”) to deal with its own jurisdiction.
Mark R. Flowers
Mark Flowers is a partner with Davies Howe Partners and his practice is focussed on land use planning and land development, primarily for private sector clients. He regularly appears before the Board, as well as the Ontario Divisional Court, on planning and municipal law matters. Mark graduated from Osgoode Hall Law School in 1999, and he also holds a Master's Degree in Urban Planning and Development from the University of Toronto. Mark has argued several motions to dismiss before the Board, both on behalf of moving parties as well as responding parties. In addition, Mark successfully argued the first motion for directions to be heard by the Board under the new Bill 51 provisions related to "complete applications", in the Top of the Tree Developments v. City of Toronto, [2007] O.M.B.D. No. 1116, which he discussed in the latter portion of his presentation.
Mark’s presentation focused on four things: the implications of Bill 51 on motions to dismiss; the ability to supplement reasons; abuse of process as a ground for ground to dismiss; and motion for directions with respect to complete applications. He joked that his thesis was that the changing legal and policy framework presented a silver lining for municipal lawyers, as uncertainty leads to more opportunities to bring motions.
Mark noted two things with respect to the implications of Bill 51 on motions to dismiss. First, Bill 51 results in the removal of the ground of failure to make written/oral submissions. This is because under Bill 51, the failure to make submissions precludes the appeal itself and there is therefore no need for a motion. Second, as a result of Bill 51, two new grounds are added. As per s. 17(45)(a)(iv) of the Planning Act (the “Act”), if the appellant has persistently and without reasonable grounds commenced before the Board proceedings that constitute an abuse of process, there may be grounds for dismissal without a hearing. And as per s. 17(45.1) of the Act, the Board may dismiss an appeal without a hearing if the application to which the appeal relates is substantially different from the application that was before council at the time of its decision (applies only to the public sector). Mark noted that this ground has yet to be argued and suggested that it will be interesting to see how the Board will interpret “substantially different” given that the Act does not provide any guidance in this regard.
Mark next discussed the issue of whether it is possible to supplement reasons given for an appeal. He pointed to an early case, Re. Luigi Stornelli, (1985) 30 M.P.L.R. 18, which stood for the proposition that the Act’s requirement to include reasons in a notice of appeal is directory as opposed to mandatory, and that an appeal can be supplemented. Mark stated that a motion to dismiss could be seen as an opportunity for an appellant to supplement its reasons. However, Mark pointed to a more recent case, F.S. Port Credit Development Ltd., in which a variance to permit uses was appealed and the City of Mississauga brought a motion to dismiss on the basis that no reasons had been provided in the appeal letter. The Board allowed the motion. Subsequently, a Section 43 review was requested and a motion was brought by the City of Mississauga to dismiss the Section 43 review. The Board denied the motion and allowed a rehearing of the matter.
The third topic Mark turned his attention to was abuse of process. He did so by looking at Chingacousy Farm Ltd. v. Brampton (City), [2007] O.M.B.D. No. 847, in which he acted as counsel for Chingacousy. In this case, the Trustee brought a motion pursuant to sections 17(45), 34(25) and 51(53) of the Act to dismiss the appeals of Chingacousy without holding a hearing. Chingacousy had appealed from City Council's refusal or neglect to enact a proposed zoning by-law; its refusal or neglect to enact a proposed amendment to the City Official Plan; and its failure to make a decision respecting a proposed draft plan of the subdivision. The Trustee sought an order dismissing the appeal in respect of the Official Plan on the basis of res judicata.
The Trustee’s position was that Chingacousy was a party to, or a privy to a party to, a 1990 Board hearing that specifically dealt with Official Plan Amendment 149 and its cost sharing policies, and as such Chingacousy should not now be able to raise issues on an Official Plan appeal which could have and should have been raised at that hearing. The Trustee argued that to do so would constitute an abuse of process. The Trustee submitted that Chingacousy’s failure to execute a Cost Sharing Agreement in accordance with the requirements of Policy 8.2.12 is sufficient reason for the Board to dismiss the draft plan and zoning appeals without a hearing, as Official Plan compliance is a prerequisite to receipt of draft approval. The Trustee further submitted that the requirement that the Cost Sharing Agreement be executed prior to draft plan approval of subdivision plans was approved in 1990 without any objection by Chingacousy.
In response, Chingacousy argued that there was a change of circumstances since 1990 and as a result, res judicata did not apply. The Board ultimately agreed with Chingacousy. It found that there were significant changes, both in terms of the planning regime relevant to the issues, and in terms of the circumstances. The Board held that res judicata did not apply and denied the motion to dismiss the appeal without a hearing.
This decision was appealed to court, and the court agreed with the Board on the issue of res judicata. What Mark found interesting was that the court went on to consider the applicability of the doctrine of laches. The argument was that Chingacousy should not have delayed in bringing the appeal as long as it did. The court found that in the particular circumstances of the case, Chingacousy was under no obligation to bring the appeal and thus, the doctrine of laches did not apply. Mark pointed out that though the doctrine of laches was not applied in this case, the decision of the court has effectively left the door open to dismiss an appeal on the ground of laches.
Lastly, Mark discussed the issue of complete applications, with reference to the Top of the Tree Developments. Mark explained that in Top of the Tree Developments, an application was brought to the Board pursuant to subsection 26(6.2) of the Act, and what was sought was a determination that the application for an Official Plan Amendment by Top of the Tree Developments Inc. was complete as of the date of its filing with the City of Toronto on August 1, 2007. It was the first application brought to the Board pursuant to subsection 26(6.2), which came into force and effect since January 1, 2007, and which was part of the comprehensive and fundamental amendments to the Act enacted pursuant to Bill 51.
The provisions that were relevant in Top of the Tree Developments are found in sections 22(6), 22(6.1), 22(6.2), 22(4) and 22(5) of the Act, which state respectively as follows:
Refusal and timing
22(6) Until the council or planning board has received the information and material required under subsections (4) and (5), if any, and any fee under section 69,
(a) the council or planning board may refuse to accept or further consider the request for an amendment to its official plan; and
(b) the time periods referred to in paragraphs 1 and 2 of subsection (7.0.2) do not begin. 2006, c. 23, s. 11 (4).
Response re completeness of request
22(6.1) Within 30 days after the person or public body that requests the amendment pays any fee under section 69, the council or planning board shall notify the person or public body that the information and material required under subsections (4) and (5), if any, have been provided, or that they have not been provided, as the case may be. 2006, c. 23, s. 11 (4).
Motion re dispute
22(6.2) Within 30 days after a negative notice is given under subsection (6.1), the person or public body or the council or planning board may make a motion for directions to have the Municipal Board determine,
(a) whether the information and material have in fact been provided; or
(b) whether a requirement made under subsection (5) is reasonable. 2006, c. 23, s. 11 (4).
Prescribed information
22(4) A person or public body that requests an amendment to the official plan of a municipality or planning board shall provide the prescribed information and material to the council or planning board. 1996, c. 4, s. 13.
Other information
22(5) A council or a planning board may require that a person or public body that requests an amendment to its official plan provide any other information or material that the council or planning board considers it may need, but only if the official plan contains provisions relating to requirements under this subsection. 2006, c. 23, s. 11 (4). [Emphasis Added]
Whether the matter is considered to be complete is important in the new planning regime since an incomplete application for an Official Plan Amendment will not be considered further by the Municipality, and unlike the situation before Bill 51, the statutory appeal period to the Board will not commence to run.
The key issue to be decided was whether an adherence to what is prescribed as set out in subsection 4 would suffice. Mark argued that the Municipality should not be able to request any other information since the Municipality had not taken the requisite steps as contemplated in subsection 5 to enact such requirements as part of the Official Plan policies. Mark further argued that new Official Plan Amendments were required in order to safeguard other parties. Parties would be protected by virtue of the public process and triggering of a right to appeal that would occur if an Official Plan was to be amended. The Board agreed with these submissions and held that the municipality would have to adopt new Official Plan policies in order to be able to request additional information under s. 22(5), and it could not rely on pre-existing policies.
Mimi Singh
Mimi is counsel to the Attorney General, Ministry of Municipal Affairs and Housing. Her practice is focused on land use planning and land development and she regularly appears before the Board. In addition to her experience in land use planning, Mimi has extensive experience in environmental law. She is a graduate of Osgoode Hall Law School, a member of the Executives of the Municipal and Environmental Law Sections of the OBA and Past Chair of the Environmental Law Section, and has published numerous articles and spoken at numerous OBA and Insight Seminars on municipal and environmental law topics.
Prior to joining the Ministry, Mimi was senior counsel with the Regional Municipality of Durham. While at Durham, Mimi was responsible for 23 appeals challenging the Region’s comprehensive amendment No. 114 to its Official Plan, the Region’s judicial review application to prohibit the Board from hearing the Berrywoods subdivision application under the Greenbelt Protection Act, and opposing the Beechridge application to convert employment lands to residential lands.
Mimi began her presentation by providing some detail of her involvement in the Beechridge case. Mimi was counsel for the Region of Durham in respect of two appeals from Ajax’s refusal of private applications for re-designation of 200 acres of land to residential uses. Mimi explained that the Official Plan policies of Ajax strongly discouraged re-designation of the lands, as did the provincial policies. The day before Mimi was to put in her evidence, the province introduced the Growth Plan with the result that the Region’s land supply became fixed on that date. Mimi brought a motion for a brief adjournment so that the Region could consider the implications of the Growth Plan on its case. The Board found that the Growth Plan did not apply to the hearing and ultimately allowed the re-designation of the lands on the basis that they provided an outstanding opportunity for needed housing development.
Although the Region and the Town lost the hearing, Mimi succeeded in having the decision overturned by the Board on the basis of the review panel’s findings of “numerous clear violations of natural justice and procedural fairness”. Immediately prior to joining the Ministry of the Attorney General, Mimi prepared the Region’s factum in the application by Beechridge for leave to appeal to the Divisional Court. On January 18, 2008, the Divisional Court denied leave on the basis that there was no reason to doubt the correctness of the review Panel’s findings.
After discussing the Beechridge case, Mimi discussed, generally, how someone can appeal a decision of the Board. Mimi pointed out that s. 96(4) of the Ontario Municipal Board Act is meant to give finality to Board decisions. Appeals are available in two circumstances: 1) From the Board to the Divisional Court with leave on questions of law (s. 96(1) of the Ontario Municipal Board Act); and 2) By virtue a Section 43 review under which the Board can review its own decisions. Mimi explained that neither of these routes are automatic and that there is a gatekeeper approach to deciding what can be appealed.
With respect to an appeal to the Divisional Court, in order to be granted leave, the appellant must be able to convince the Court that there is reason to doubt the correctness of the decision and that there is a question of law which needs to be addressed. In addition, the issues must be of sufficient public importance to warrant the attention of the Court. With respect to a Section 43 review, the appellant must show that the request meets one of the grounds for review stipulated in Rule 115 and that it would make a difference to the outcome. To the extent that the ground is that there is new evidence, Mimi says that it must truly not have been available at the time of the hearing, it must be credible, and it must be material to the decision. Mimi suggests that like when requesting leave to appeal to the Divisional Court, for a Section 43 review to be granted, the matter has to be of some public importance.
Mimi briefly discussed the preparation for a Section 43 review and then provided a summary of how one should go about deciding whether it can appropriately request a Section 43 review. First, one must review a decision carefully and analyze the decision based on the grounds available for review. One must next consider whether the grounds would have made a difference to the outcome in any event. In this respect, Mimi suggested applying the same test as if seeking leave to the Divisional Court. In concluding, Mimi suggested we be cognizant of the fact that the common thread is that Board decisions must have finality and that the Board will not allow decisions to be reviewed for flimsy reasons.
Barnet H. Kussner
Barnet Kussner is a partner with WeirFoulds LLP and is currently Co-Chair of the firm's Municipal Practice Group and head of its Planning & Development Sub-Group. Barnet has a diverse practice which consists of municipal law, civil litigation and health law. He has been involved in a number of OMB motions in recent years dealing with section 43 reviews, jurisdictional issues and motions to dismiss.
Most recently, he successfully represented the Peninsula Lake Association on a section 43 review concerning a proposed granite quarry in the Township of Lake of Bays following a two week hearing on a proposed rezoning and site plan and a three-day section 43 hearing. He also recently acted for the Regional Municipality of York on a motion to determine the Board's jurisdiction to entertain an appeal under the now-repealed section 136 of the Municipal Act, 2001, on which a decision is expected soon.
Barnet pointed out several sections in the Act which confer board powers on the Board to deal with issues in respect of its own jurisdiction. Barnet noted that historically, the experience was inconsistent as to whether a Board would deal with jurisdictional issues. Often, he said, there was some hesitancy by the Board when it came to reviewing its own jurisdiction. Barnet opined that, over time, the landscape has shifted and the Board has become more willing to entertain such motions. Barnet attributed a number of factors to this evolution. First, a significant delay is involved in having to go before a court to deal with jurisdictional issues. Second, costs increase significantly when jurisdictional issues are heard in front of a court, largely due to the increased complexity of bringing a motion before the court. Third, there have been a number of key decisions which have made clear that the Board can and should deal with issues of law that go to its jurisdiction. Barnet believes that we should view this evolution as a positive development in that it is much more cost and time efficient for those involved.
Barnet reviewed three cases in which the Board showed its willingness to answer questions of a jurisdictional nature. Barnet first discussed Muskoka Lakes Zoning By-Law 2002-133, a case involving the rezoning of a golf course which was approved by the Township and which was being appealed for a group of incorporated cottagers. There was some question as to whether the group was actually incorporated and the golf course and Municipality brought a motion to determine whether the Board had jurisdiction to entertain the appeal. The issue was whether the appeal filed was valid. The Board found that at the time when the right of appeal crystallized, the group was an unincorporated association and therefore not a “person”, the result being that the Board had no jurisdiction to hear the appeal.
The second case Barnet discussed involved an application by a golf course to the region of York to remove trees on private land on the Oakridge Moraine. This was a permit regime case and s. 136 of the Municipal Act, 2001 applied. This meant that there was a right to appeal to the Board if no decision was made (within 45 days) or if there was a refusal of the application for a permit (within 30 days). The application for a permit was made in 2005. The refusal of the permit occurred in June, 2007. The complexity was that as of January 1, 2007, s. 136 had been repealed. The golf course asked for a motion to be held to determine whether, in the circumstances, the Board had the jurisdiction to entertain the appeal. More specifically, had the right to appeal vested when the permit was applied for in 2005, or did the right to appeal only crystallize if the appeal was filed prior to the repeal? Barnet stated that the motion has been heard and, at the time of the dinner meeting, a decision was pending. A decision has since been released (Board Case No. PL070561) and the Board determined that it did not have jurisdiction. The golf course has filed a notice of its intent to seek leave to appeal.
Barnet also referred to a third case involving Official Plan, zoning, and site plan applications by Dunpar Developments in Etobicoke. Dunpar’s application sought to amend the former Etobicoke Official Plan, which, by the time the appeal reached the Board, had been superseded by the new Toronto Official Plan (which Dunpar had not appealed). On a motion, the Board determined that it did not have the jurisdiction to consider the Official Plan appeal, as it related to a document that was no longer in force. Dunpar subsequently proceeded with its remaining appeals, and the Board ultimately approved the development, finding that the rezoning conformed to the new Official Plan.
Barnet concluded that the decisions discussed are examples showing that the Board will flex its jurisdictional muscle, and that in appropriate cases, the Board will exercise its broad powers.
* Leah Ramkaran, Student-at-Law, Goodmans LLP, (416) 849-6984.
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The Provincial Policy Statement 2005: Three Years on … A Look at Legal and Planning Issues and Perspectives (March 27, 2008)
Kristen Courtney*
Speakers: Rodney Northey, Birchall Northey LLP; Robert Lehman, Lehman & Associates
Chair: Kelly G. Yerxa, O’Connor MacLeod Hanna LLP
On Thursday, March 27, 2008, the Municipal Law Section hosted a dinner program at the OBA Conference Centre on the legal status of the Provincial Policy Statement (PPS). The program, entitled: The Provincial Policy Statement 2005: Three Years on… A Look at Legal and Planning Issues and Perspectives brought together many legal and non-legal practitioners working on municipal planning matters.
Hosted by Chair Kelly G. Yerxa (O’Connor MacLeod Hanna LLP), the speakers included Rodney Northey (Birchall Northey LLP) and planner Robert Lehman (Lehman & Associates). The speakers, who recently clashed (professionally) at the Ontario Municipal Board on the meaning of the PPS, discussed current planning practice and its conformity with the 2005 amendments to the Planning Act from their different perspectives.
The key issue discussed was whether the amendments to s. 3(5) of the Planning Act had made the Provincial Policy Statement into “law,” or whether it remained a matter of non-binding policy. In addition, the speakers considered what it means for a decision to “be consistent with” the PPS, and whether this should appropriately be considered a matter of planning evidence or a question of law.
Mr. Northey argued that s. 3(5) renders the PPS a legally binding instrument, that consistency ought to be determined by purposive, logical analysis, and therefore, that a number of recent OMB and divisional court decisions were likely wrongly decided. Mr. Lehman countered that the intent of the PPS is to lay out provincial interests, not to provide binding guidelines, because of the difficulties that could arise in attempting to apply a common set of policies to the diversity of circumstances encountered across the province.
A lively question and answer session followed, demonstrating the audience’s interest in this critical question, and its potential to change planning law as we know it in Ontario. The challenges and uncertainties highlighted during the event demonstrated that, despite over three years of practice since the amendments, their status is still up in the air.
* Kristen Courtney, Student OBA Member.
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OBA Young Lawyers' Division
What Membership in Our Section Can Do for You
If you are an OBA member and are interested in Section memberships, you should consider joining the Young Lawyers' Division (YLD). Our membership, for lawyers who are 10 years of call or less OR 40 years of age or under, has a lot to offer. Our programs are specifically designed for young lawyers, and our newsletter features articles of interest to young lawyers.
Also, if you are looking to expand your role at the OBA and serve on a committee, you may have discovered that many of the Section committees are already full. However, the YLD Executive is always looking for more volunteers to join our already exceptional group of dedicated young lawyers. We even welcome mid-term additions!
For more information of YLD membership, or to join our Executive committee, check us out on the OBA website, or contact a member of our Executive. We'd love to see you here!
Susannah Roth is an associate at O'Donohue & O'Donohue. She can be reached at (416) 361-3231.
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Volume 18, No. 1 - April/Avril 2008 