Escolar Documentos
Profissional Documentos
Cultura Documentos
Subsidiary Principle.................................................................................. 4
Service Delivery Model............................................................................. 4
Public Meeting Rule..................................................................................4
Magnusson Article......................................................................4
Regina v Greenbaum SCC 1993..............................................................5
East York v Ontario 1997..........................................................................5
Brandon v Municipal Commissioner 1931................................................5
Canadian Pacific Railway v Outlook 1924................................................5
St Stephen v Charlotte.............................................................................5
Ste Paul County no. 19 v Belland (2006)..................................................5
Southam v Ottawa..................................................................................13
How to put a by-law together.....................................................14
Morrison v Kingston............................................................................... 14
Sea change: Annus Mirabelis 1994......................................................14
Shell Products and Vancouver................................................................15
Bill 130: Broad Authority Powers:..........................................................15
Limitations.............................................................................................. 16
Spraytech v Hudson................................................................................16
United Taxi v Calgary.............................................................................16
Croplife Canada v Toronto......................................................................16
Catalyst Paper Corp v North Cowichan..................................................16
Eng v Toronto.......................................................................................... 17
Conclusions:............................................................................................ 17
By-Law Enforcement...........................................................17
What is a bylaw?..................................................................................... 17
Resolutions............................................................................................. 17
Procedures to Enact by-laws..................................................................17
Pre-drafting considerations:...................................................................18
Components of By-laws.............................................................18
Discretionary Enforcement Principle:....................................................19
Brown v Hamilton...................................................................................19
Self-Help Remedy:.....................................................................19
Suprun v Bryla 2007 SCJ........................................................................19
Sunnybrae Springbrook Farms Inc v Trent Hills 2012 SCJ....................19
Powers of Entry:..................................................................................... 19
Orders and Remedial Actions:................................................................20
Site plan agreement:.............................................................................. 20
Grounds to Attack a By-law........................................................20
Challenging a Municipal By-law.................................................20
Financial Administration.....................................................39
Roles and Responsibilities.........................................................40
Financial Reporting..................................................................41
Policy Framework......................................................................42
Confirmation of Broad Municipal Authority................................42
Friends of Lansdowne Inc v Ottawa.........................................................42
Nowak v Fort Erie.................................................................................... 43
Tax Collection:..........................................................................44
Payment in Lieu of Taxes.........................................................................45
Mississauga v Canada.............................................................................45
Municipal Budgets....................................................................46
Fees and Charges.................................................................................... 46
Magnusson Article
Are Municipalities Creatures of the Province?
Argues that most major municipalities in Canada predate the country.
Victoria, Toronto, Quebec City, etc; so the provinces didnt really
create them at all.
Basically what hes saying is that political power exists where people
believe it does. Its my old mantra: Canada is like Tinkerbell; stop
clapping and it dies. Power exists due to the monopoly of violent
enforcement, yeah, but also because we believe it does. We need to
have more power at the municipal level if we want to be serious about
democracy.
Regina v Greenbaum SCC 1993
T-shirt case. Iacobucci says municipalities are entirely creatures of
the government, and that courts have to be vigilant in making sure
they dont pass ultra vires laws that impinge of the common law or
civil rights of their constituents.
Dillons Rule upheld.
East York v Ontario 1997
Ontario Court of Justice
Everyone and their grandmother was turbo-against the amalgamation
of Toronto and the surrounding bullshit, and each of the separate
municipalities took the province to court to get them to stahp (plus a
bunch of other people). Sections 2(b) and (d), 7, 8, and 15(1) of the
Charter.
Borins J said too friggin bad. Municipalities lack constitutional status,
and the province can do whatever it wants with them.
i) Municipal institutions lack constitutional status
ii) Municipal institutions are creatures of the legislature and exist
only if provincial legislation so provides
iii) Municipal institutions have no independent autonomy and their
powers are subject to aboliltion or repeal by provincial legislation
iv) Municipal institutions may exercise only those powers which are
conferred upon them by statute.
Brandon v Municipal Commissioner 1931
Manitoba Court of Appeal
Ummm some taxes are illegal? Check into this on the internet.
Canadian Pacific Railway v Outlook 1924
Saskatchewan Kings Bench
Something about the incorporation of municipalities. The town exists
as an entity of its own, tied neither to the people who live in it nor the
geographical boundaries which encompass its area of land.
St Stephen v Charlotte
Body corporate constituted by the incorporation of the inhabitants
residing within the defined area blah blah blah corporate status.
Body corporate means you can sue and be sued; it acts as a trustee,
and its a fiduciary. It is all of those things, but most importantly it is
a body corporate.
Ste Paul County no. 19 v Belland (2006)
Service delivery model? Not quite. Its more than that. Allegedly
theres no party politic at the municipal level, but thats bullshit.
Clearly there is.
Municipal Corporation
It is a body corporate; S.4 of Municipal Act, 2001
Special type of corporation
Created by statute
The Mayor is the CEO
municipality is a body corporate
it is a special type of corporation
no letters patent or articles of incorporation
created by statute
municipality = business corporation
council = board of directors
mayor = chair of board
by-laws = minutes and resolutions
Used to just govern local municipalities, and the regional guys did the
outlying areas. That was continued on in the Municipal Act, but we
dont really know why.
This is all very confusing to the tax-payer. Separated municipalities:
generally of an urban nature, denser; they tend to remove themselves
from the larger government. They all vary. Barrie may have
separated for certain things, but Stratford and Kingston did it for
different reasons.
Lower-tier is generally subservient to the upper tier. S.11 of the MA.
Councillors are generally elected to lower-tier councils and statutorily
representative of their upper-tier councils.
Regions have no political status
Counties do, there are County Acts
Districts: have no jurisdiction
Regional Governments: basically to assist with super-municipal
service delivery. Police, Fire, that kind of thing.
Single-tier municipalities: like Toronto, remember?
Separated municipalities: see above
S.5(1) VERY IMPORTANT
The powers of a municipality SHALL be exercised by its council
You dont have a choice, you have to do it in a certain way. You have
to do SOMETHING.
5(3) municipality must act through its council and by by-law (or as
otherwise permitted)
The CASE LAW says that matters of a minor nature or of an
administrative nature can be done by resolution instead of a by-law.
Most important body is the council in local government. Quasijudicial powers and functions. Council will often sit as a tribunal or a
hearing body.
Generally there is a head of council (mayor/reeve/chairs) and
councillors. They are generally elected at-large or by ward.
** Theres an unspoken rule in Toronto that whatever the ward
councillor wants, the ward councillor gets. This is awesome.
We finally have 4-year terms, for obvious reasons (trying to get 2
years of real business done). This didnt actually work.
The term continues until the successor is elected. You can get
removed, but only in very specific instances. The council itself cant
do it, and nothing in that video we watched didnt contain anything
that would be sufficient.
Scale: ??
Elected or appointed representatives: should they be elected? Who
cares? They have the same term length as council (usually)
Local board means a municipal service board, transportation
commission, blah blah blah. Whatever, they are the agents of a
municipality. Wait MOST are. Appointed by one or more councils
and can include members of council. Hard to get rid of.
Has to maintain certain policies. HAS TO. Procedural by-laws, and
open meetings. Fees and charges provisions applies
Municipal Service Boards
Bodies corporate that are agents of the municipalities s.96
eg. The Collingwood Airport joint service board was made by three
municipalities and none of the councils run it, its the board. Another
ex. Is the Jlland Marsh Flood people. What kind of money are we
going to spend on this?
Municipal Service Corporations
You can now have shares and incorporate. Municipal business
corporations. Made for the ability to make public/private
partnerships. Doesnt get used very often because the rules are super
complex. Water and waste service and that kind of thing.
Business Improvement Areas
s.204 to the Municipal Act
To promote the area as a shopping district, they are allowed to make
decisions and impose levies on businesses to make the public space
look pretty
Municipal Associations
S.3(1) requires the provs to consult with municipalities in accordance
with a memorandum of understanding (MOU) entered into between
the province and the Association of Municipalities of Ontario (AMO)
(which does not include Toronto. We thought they didnt understand
us, so we pulled out). A MOU provides for consultation between the
Prov and the AMO when the gov is proposing a change in legislation
and regulations.
Saint John, NB; est. via Royal Charter in 1785; first municipality in
Canada.
Montreal, QC; est. 1832; new charter in 1840, revisions in 1959 and
1970
Winnipeg, MB; incorp 1873
Van City; incorp 1886
NOT CHARTER CITIES: CowTown, Ottawa, TDot
Levi and Valverde Article
Freedom of the City: Canadian Cities and the Quest for Governmental
Status
Basically a giant article arguing why municipalities should have more
power. Mega pissed off about the amalgamation in 1998. Superior
Court concluded that the City of Toronto Act did not exceed the
provinces constitutional authority to make laws relating to the
municipal institutions in the province.
*******************
Council!
They are all powerful when acting as one body. COUNCIL HOLDS
ALL OF THE POWER.
Council can only fuck themselves up, theyre not really supposed to
fuck up the next council.
S.5(1) sets out: The powers of a municipality SHALL be exercised by
its council. You dont have a choice.
S.5(2), unlike the fed and prov parliaments, proposed laws can carry
though to the next Council.
S.6(1) 4 year terms, start Dec 1
S.6(3) Holders continue to hold until successors are elected and
organized; some wriggle room here as to what organized means.
Silly Season! Is election season. Every little goddamn thing becomes
an election issue.
Municipal Act sets out a few key positions, and the duties and roles
that those people have. They werent written for modern times; they
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Role of Council
224. It is the role of council,
(a) to represent the public and to consider the well-being and
interests of the municipality;
(b) to develop and evaluate the policies and programs of the
municipality;
(c) to determine which services the municipality provides;
(d) to ensure that administrative policies, practices and procedures
and controllership policies, practices and procedures are in place to
implement the decisions of council;
(d.1) to ensure the accountability and transparency of the operations
of the
municipality, including the activities of the senior management of the
municipality;
(e) to maintain the financial integrity of the municipality; and
(f) to carry out the duties of council under this or any other Act.
Municipal Act, 2001, S.O. 2001, c. 25
S.225 Head of Council
(a) CEO of the munic
(b) preside, (c) provide leadership, (d) represent at official functions,
(e) other stuff.
S.226(1) A whole bunch of civil/public duty stuff that RoFo totally
ignores. Economic, social, and environmental well-being, etc etc.
S.229 Chief Administrative Officer
Its a may job. You dont have to hire one. Its a pretty sweet job
where you make a lot of money and you dont do a whole lot of heavy
work.
What the hell is the job description?
(a) exercising general control and management of the affairs of the
municipality for the purpose of ensuring the efficient and effective
operation of the municipality; and
(b) performing such other duties as are assigned by the municipality.
$92,415* (Average)
$212,112 (Oakville)
$331,226 (Toronto)
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S.228 Clerk
Its a shall position. You have to write everything down; its heavily
prescribed. Pretty much the job is to record everything council does.
S.286 Treasurer
Do we really need an act, in todays modern society, to tell the
treasurer that their job is to take care of the money?
S.1.1(6) of the Building Code Act Chief Building Official
Municipalities that are growing and growing have a lot of wiggle room
in this position. They have a lot of discretion. They can be your best
friend or your worst enemy.
Youre going to get S.19(1) in your FACE all the time. No person shall
hinder or obstruct, or attempt to hinder or obstruct, a chief building
official inspector, officer blah blah blah
Its a drag because they work for the province and not the city, and
they can be dicks about things when theyre trying to enforce the
building code instead of playing the political game.
S.227 Municipal Administration
Their job as staff is to do research and help council and give advice.
Sometimes council takes the advice and sometimes they dont.
If there is an appeal of a council decision and council hasnt taken the
advice of their staff, theyre allowed to go get new advice.
If you keep the lines between the professional advice giving and the
political manoeuvring, you have a strong municipality. If you blur
them, its a problem.
Procedural By-laws
S.238(2) Procedure respecting meetings.
Every municipality and local board shall pass a procedure by-law for
governing the calling, place and proceedings of meetings.
This is the mother of all by-laws. It spells out all this rules of the
game and how the city is going to make what they want done get
done.
They can decide that certain decisions need a more than a simple
majority, budgetary and all kinds of other stuff.
Once again, staff give advice, and its up to Council to make a
decision.
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14
15
16
Most of this is just delineating how by-laws are set up to explicitly cite
all the statutory powers they have under provincial legislation
(Municipal Act?) so that their shit is all intra vires.
We have like 6 cases for this class today all about this topic.
Repeal clauses are really important for obvious reasons.
By-laws are formal written documents that have to be signed by
the head of council or the presiding officer, and the clerk, and
they also have to be embossed with the municipal seal.
First piece of legislation in Canada: the Municipal Corporations Act,
1849, called the Baldwin Act.
What it did was decide the powers a local govt should have. It
grafted together a whole bunch of random bits from other pieces of
legislation.
Why does the Municipal Act have paragraphs? Thanks Baldwin Act.
The laundry list approach.
There was a big discussion about what the purposes of a city are.
Morrison v Kingston
The general health, safety and welfare power in s.259 of the then
Municipal Act
Court said, you cant actually use that power. You have to limit that
power else we will live in chaos.
Court said: everything a city can do is in the Act. The Provs already
said what they wanted to give the municipalities, and they did so
explicitly. If it isnt in there its not a power.
For years, Morrison was cited to prove how limited this power really
is.
Sea change: Annus Mirabelis 1994
Dillons Rule worked well in terms of the prescriptive delegated
model; powers are narrow and specific.
Shell Products and Vancouver
SCC fundamentally split 5-4
Van City said they wouldnt do business with anyone who did business
in South Africa. Shell said thats not fair. Youre not entitled to say
that. ISnt that discrimination? What about the territory thing.
Sopinka J said well shit Shell, I guess youre right. Wheres the
authority to do this? Geographical limits baby.
Mclachlin J (dissent) said: deferential approach should be accorded
municipalities that they can effectively serve their citizens.
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Then you get the Municipal Act 2001 come into effect in Alberta:
The idea was that municipalities should have natural person powers.
This means that the munics, if they could find the power somewhere
in an act, can just go ahead and do it. Hire staff, enter into contracts,
acquire land and equipment, etc, as long as it has amunicipal
purpose.
Subsection 11(3) of the Municipal Act 2001 gives munics general
authorization to pass by-laws.
Bill 130: Broad Authority Powers:
Municipalities can pass by-laws for basically all kinds of shit. Big list.
1. Governance structure of the municipality and its local boards
2. Accountability and transparency of the municipality and its
operations and of its local boards and their operations.
3. Financial management of the municipality and its local boards.
4. Public assets of the municipality acquired for the purposes of
exercising its authority under this or any other Act.
5. Economic, social and environmental well-being of the municipality.
6. Health, safety and well-being of persons.
7. Services and things that the municipality is authorized to provide
under subsection 10/11(1)
8. Protection of persons and property, including consumer protection.
9. Animals
10. Structures, including fences and signs.
11. Business licensing.
Interpretation: broadly: confer broad authority on the municipality to
govern its affairs. 8(1)
In the event of ambiguity, shall be resolved to include powers the
municipality had on the day before the MA2001. 8(2)
8(3) can regulate or prohibit respecting the matter; require persons to
do things respecting the matter, provide for a system of licences
respecting the matter.
Authority to Differentiate:
8(4) lol you can do what you want if you consider it appropriate.
Rules of Application
In a two-tier system, you can give the powers to one tier, the other
tier, or both. If theres a problem the upper tier generally has the
upper hand.
Limitations
S.13-19
ss. 13 to 19 of the Municipal Act, 2001 set out general restrictions
and limitations on municipal powers
s. 13 upper-tier by-law applies over lower-tier by-law
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19
By-Law Enforcement
What is a bylaw?
Municipal legislation! Haha!
The formal written expression of a municipalitys legislation.
The bylaw has to be signed by the clerk and the head of council who
is there at the meeting. Also must be embossed.
Resolutions
Are informal documents that signify the intent of a municipal council
but may not necessarily be binding. Do not have to be written down.
Over 30 specific instances in the Municipal Act where a council does
not have to enact a formal by-law in order to authorize a particular
action.
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There is a common law tradition that says you dont have to write
down by-laws which is really weird because its one of the few
instances where common law rumps statutes.
Procedures to Enact by-laws
Written enactment, at a valid meeting of the council. A properly
convened, conducted and constituted meeting in English or French.
GOTTA HAVE QUARUM. Was there enough notice? There might be a
time when the by-law is void, or it might be voidable, which means
that its valid until its challenged.
Pre-drafting considerations:
Legal authority You have to find the authority somewhere. Usually
you can, but sometimes its a stretch. Natural person powers, broad
spheres of authority powers. Is there any provision that claws that
authority back? Dammit!
Purpose there has to be a legitimate purpose for the by-law. What
does council want to do? And do they have the authority to do that?
Notice If you dont give someone enough notice, they can challenge
it.
Objectives is it constitutionally valid? You want to regulate signage
maybe, but does that violate freedom of expression? That kind of
thing.
Language as precise as possible. Certain terms should be defined.
Components of By-laws
Bunch of bullshit
See printed slides.
Definitions should be restricted to words that normally have a
different meaning than what the meaning in the by-law is. You even
need to define what municipality youre talking about.
Regulatory provisions You write down whatever youre trying to
prohibit or regulate.
Offence Provision you have to specifically state that contravening it
is bad. A person who contravenes any provision of this by-law is
guilty of an offence.
Penalty You spell out all the bad shit youre going to do to whoever
breaks the rules. Whatever offence, multiple offences, escalating
offences, etc etc etc.
Say youre prohibited from opening on Christmas day, but you dont
care, so you open anyways and what does the court say? Fines you
for however much money you made.
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Self-Help Remedy:
S.440 If any by-law of a municipality of by-law of a local board of a
municipality under this or any other Act is contravened, in addition to
any other remedy and to any penalty imposed by the by-law, the
contravention may be restrained by application at the instance of a
taxpayer or the municipality or local board.
#Unique to Ontario
Suprun v Bryla 2007 SCJ
Without s.440, a taxpayer would be at the mercy of a munic that
refuses to enforce a by-law
Anyways the self-help thing means a resident can enforce a by-law if
the munic refuses to.
Sunnybrae Springbrook Farms Inc v Trent Hills 2012 SCJ
S.440 of the Municipal Act provides a remedy to an aggrieved
taxpayer where a munic fails to act.
Powers of Entry:
Munic can grant power to entry to land for inspection to determine
compliance with bylaws at any reasonable time. They dont explain
what a reasonable time is, and it doesnt apply to dwellings.
Orders and Remedial Actions:
If you ignore whatever the city tells you, the city can enter the
property, and they have a direct remedial right, and do whatever it is
they asked you to do. Then they charge you for it. If you dont pay
them, they can sell your land for tax arrears.
Site plan agreement:
Under s.446 you have to get a land use planning approval thing or
whatever and if you dont build whatever it is, the city will enter the
property, build whatever you didnt that you said you would, and then
charge you for it.
S.446 is a great big hammer the municipality has.
41(11), 41(12), or 41(13) is where you get this? I think. Missed that.
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Under ss.447 and s.447.1 the city can get a court order to close the
premises.
S.447.2 the munic can inspect buildings they think are grow-ops.
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Fees
Fees have always been for regulation and revenue generation. The
fees have not always (or ever) been homogenously prescribed.
Licensing of business by municipalities has long been recognized as a
basic form of consumer protection s.92(9) of Constitution Act, 1867:
Shop, Saloon, Tavern, Auctioneer, and other Licences in order to
raising of a Revenue for Provincial, Local or Municipal
Purposes.
Licensing had historically been addressed in a largely ad hoc fashion
in the former Municipal Acts
Separate and disparate licensing authorities were scattered
throughout the statute
Licensing fees were treated in a similar fashion
Municipal discretion granted but provisions were still largely
restrictive
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What is a business?
any business carried on within a municipality
even if the business is being carried on from a location outside the
municipality
includes, inter alia:
a)trades and occupations
b)exhibitions, concerts, festivals and organized public
amusements
c)the sale or hire of goods or services and the activities of a
transient trader
d)the display of samples, patterns or specimens of goods for sale
or hire
Municipal powers are broad, with regards to business licensing:
the power to license, regulate or govern places or things
includes a power to license, regulate or govern the trades,
occupations or business for which such places or things are
used and the persons carrying on or engaged in them
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Licence Fees
power to impose licence fees is implicit through the authority to
impose conditions upon issuance of a licence
Part XII Fees and Charges
s. 391: affirms that ss. 9, 10, and 11 authorize municipality to
impose fees or charges for services or activities provided or done by
or on behalf of the municipality
these fees may include costs incurred in relation to the
administration and enforcement of the licensing regime
fee cannot be so high as to amount to a tax;
test: there must be a nexus between the fee charged & licensing
service provided; absolute precision is not required to uphold
licensing fee. Has to be reasonable.
Still no revenue generation.
Enforcement
Administrative Penalties
municipalities may charge these if any person fails to comply with
any part of a licensing system - s. 151(1)(g)
Licence Suspensions
suspension without hearing for up to 14 days if immediate danger to
health or safety of person or property - s. 151(2)
municipality must give licensee reasons for suspension
licensee must be given opportunity to respond
Compliance Inspections
power of entry under s. 436
inspections allowed in order to ensure compliance with conditions of
licence
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History:
1860s and 1870s: Munics were empowered to pass by-laws intended
to attract certain businesses. They would give tax-breaks and build
roads or whatever to get jobs. They liked railways and manufacturing
especially.
In the 1900s, they got rid of that and banned the bonuses thing. Put a
cap on it.
1914: Municipal institutions Act permitted some bonuses for some
businesses.
1961: Bonuses prohibited again.
1989: Stat examples of prohibition modified slightly, similar to
current.
Present: No definition of bonuses.
Moder Framerwork: Broad stat powers, number of exceptions. Some
prohibitions that override S.1.7 which seems to override s.6.
Friends of Lansdowne Inc v Ottawa
Court gave additional sanction to common law exception. City was
going to go sole-sourcing for some park.
Looks like bonusing to me! Bad news! Free rent, free land, bullshit
bullshit bullshit!
Nowak v Fort Erie (Town)
City would allow certain redevelopment projects on the waterfront in
exchange for improvements to the area. Judge said thats not it, you
have to see if there is a granting of a clear monetary benefit to one
person to the exclusion of all other people.
So: cant give or lend money, cant least land for less than market
value, cant give a total or partial exemption from any levy, charge, or
fee.
Direct interest
Indirect interest
Deemed interest
Sets out an ethical framework for when participation in local
government decision-making is appropriate.
MCIA in a lot of ways is about OPTICS. The appearance of bias. You
need to maintain the public faith.
Lorello v. Meffe (2010), 99 M.P.L.R. (4th) 107 (S.C.J.):
The MCIA governs the conduct of local government members
regarding conflicts of interest. It reflects the need for integrity and
accountability as the cornerstones of a strong local government
system.
Halton Hills (Town) v. Equity Waste Management of Canada
(1995), 30 M.P.L.R. (2d) 232 (Ont. Gen. Div.):
The [MCIA] is crystal-clear. It is harsh. It must be. It controls the
actions of council members. They are positories of the citizens
highest trustThey must not only be unshirkingly honest they must
be seen to be so by those who voted for them and those who voted
against them.
Moll v Fisher (1979)
Based on the moral principle that no man can serve two masters. All
judgment may be affected. Officials are there for public purpose.
Intent to prohibit an member of municipal council or a local board
who has a pecuniary interest from involvement in anything the council
is considering.
Enactment of the MCIA was a fundamental change in the approach of
the Prov Leg to handling conflicts of interest in the municipal setting.
Its not a big deal to have a conflict of interest, its almost expected.
The conflict is not a problem, but you have to adhere to the rules.
19th century principle of disqualification was bullshit. Unrealistic.
New one has two concepts: disclosure and abstention.
MCIA is about OPTICS, not just outcomes:
It is of no consequence, in my opinion, what the nature of the
effect might be for his betterment or otherwise as long as it may
be seen by the public to affect that pecuniary interest.
....
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Indirect interest
Is where a member OR THEIR NOMINEE is a direcotor or a senior
officer of a public or private company, is a shareholder of a private
company, has a controlling interesting in a puvlic company (>10%), is
a member of a body [body is not a defined term], is a partner, or is
an employee of an entity with something coming up in front of council
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Duty of Disclosure:
Arises AT THE MEETING at which the pecuniary interest is to be
discussed. Member must disclose the interest and the general nature
of the conflict. Absence from the meeting does not constitute a
declaration, you have to declare at the next meeting.
Disclosure must be precise
Kazowski v. Rexe, (1987) 38 M.P.L.R. 59
A councillor member disclosed that his uncle was the president of a
firm that was seeking a rezoning.
Member failed to mention that he would personally benefit from a
rezoning by receiving a finders fee if the property was sold, which
was in turn based upon the success of the rezoning application.
Member was found to have contravened the MCIA.
You must disclose even if you intend to vote against your own interest.
Re Jackson v Wall (1978)
A council member voted against a resolution approving a new arterial
road to relieve traffic on a street upon which he resided
Despite the fact that he voted against the motion (and seemingly on
its face, contrary to his own personal interest), the member had
breached the MCIA because he failed to declare an interest and voted
in the matter.
4 Obligations of Disclosure
1) Disclosure
2) Non-participation: YOU CANT EVEN TALK ABOUT IT. SILENCE,
BITCHEZ!
3) No Influence: member cannot in any way.
4) Must EXIT a closed meeting.: GTFO muthafucka
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Quorum
If a member is disqualified as a result of the Act, quorum is deemed to
be whoever is left. If its less than two, the council or local board may
apply to a judge for an order that they may consider the matter.
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Saving Provisions
OMG I didnt even realize! Sorry! Or, I made an error in judgement.
Right.
These provisions apply so that the members seat will not be vacated,
or they will not be disqualified. Restitution may be ordered if gain
resulted to the member or the former member from the contravention.
Appeals
S.11 of MCIA contains a very narrow right to appeal to the Ontario
Divisional Court from an ORDER under S.10. Very limited.
S.11(2) looks like only the respondent would be able to appeal
The Divisional Court may give any judgment that ought to have
been pronounced, in which case its decision is final, or the Divisional
Court may grant a new trial for the purpose of taking evidence or
additional evidence and may remit the case to the trial judge or
another judge and, subject to any directions of the Divisional Court,
the case shall be proceeded with as if there had been no appeal.
Standard of Review
Tuchenhagen v. Mondoux
Majority determined that broad language of s. 11(2) permitted
Divisional Court to hear appeal as hearing de novo given the
important and distinct role the MCIA plays in the accountability
framework for local government in Ontario
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Amaral v. Kennedy
Unanimously preferred the dissenting opinion in Tuchenhagen:
Notwithstanding what might be regarded as invitational language
appeal courts refrain from hearing cases de novo
s. 11(2) of the MCIA does not justify a non-deferential approach to
the original decision
Mississauga Judicial Inquiry
Judicial inquiry requested by Mississauga City Council pursuant to s.
274 of Municipal Act, 2001
two broad areas to be investigated:
Enersource Hydro Mississauga shareholder agreement
conflict of interest involving Mayors son and failed attempt of his
company to acquire 8.5 acres of land in Mississauga city centre in
order to develop a hotel, convention centre and condominium
development
Updating the Ethical Infrastructure was released on October 4, 2011
Justice Cunninghams report:
the Municipal Conflict of interest Act (MCIA) does not constitute
a complete codification of the law governing conflicts of interest for
members of municipal council. The common law also applies. The
MCIA is restricted to pecuniary interests of members of council in the
deliberative and legislative contexts but the common law is much
broader and recognizes conflicts of interest involving non-pecuniary
interests.
Mayor McCallion did not breach her statutory duties under MCIA but
she did have a real personal conflict of interest and breached her
common law obligations
Hazineh v McCallion
Application brought by resident seeking to have Mayor removed for
violating the MCIA by voting on a matter that involved lower levels of
fees for her sons company.
Judge said she did it for the public interest. He said the history of the
matter shows that she was not trying to personally benefit her son,
she was trying to benefit Peel Region. Also the applicant did not file
within 6 weeks.
Magder v Ford
Intergrity Commissioner made a recommendation but not a ruling or
anything. Council then made a ruling to impose a penalty. Hackland
found there was a conflict of interest, especially because Ford
wouldnt pay back the money despite 6 letters from the integrity
commissioner.
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Ontario Divisional Court said the council didnt have the authority to
impose repayment obligation on Ford, so overturned.
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2. The Municipality
Prepares policy documents known as Official Plans which guide future
growth. Also Implements Official Plans through zoning by-laws and
other by-laws.
3. The Province
EXCLUSIVE CONSTITUTIONAL JURISDICTION. If they want, they
can enact a Ministerial Zoning Order to do whatever they want, with
little or no warning.
4. The General Public
Land development is a public process. Public can influence political
decisions and appear at the OMB. Also, the public votes for council,
so if a councillor does too much shit that the public doesnt like they
dont get reelected.
5. The Ontario Municipal Board
Independent, quasi-judicial, administrative. The Municipal Act does
not allow for stalling. If someone wants to do something and the
municipality doesnt want them too, they can appeal immediately to
the OMB.
DOES NOT HAVE TO FOLLOW PRECEDENT. Like thats a good
thing?
Cloverdale Shopping Centre v Etobicoke (1966)
Concern was: Yorkdale didnt want them to build the mall.
Appeal: Sets out what the powers of the OMB are, and how they have
to sometimes make decisions that neither party really wants all that
much.
Simplified Development Approvals Process.
The simplified private land development application process under the
Planning Act for Official Plan Amendments and Zoning By-Law
Amendments generally involves:
1. Complete Application: you have to describe completely how and
what your development is going to be. Shade, parking, trees, blah
blah blah.
2. Review, Discussion, Public Notice and Public Meeting
3. Municipal decision or lack of decision
4. Opportunity to appeal
5. Public notice of an OMB hearing
6. OMB Hearing
7. New decision
You can non-conform as long as you were grandfathered in.
Doesnt have to be the same use. Country bar, strip club, same diff.
You can expand the use.
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HUGE. Might have been helpful for that church down the road,
amiright?
Once the notice is issued any permits previously issued are void
(including a building permit) - it is as though the designation process
were complete and the property had been designated
Notice Requirements
(a) an adequate description of the property so that it may be
readily ascertained;
(b) a statement explaining the cultural heritage value or interest
of the property;
(c) a statement that further information respecting the proposed
designation is available from the municipality; and
(d) a statement that notice of objection to the designation may
be served on the clerk within 30 days after the date of publication in
the municipality under clause 29(3)(b)
Off-notice search? You have to have a look to see if theyre going to
heritage your property.
Designation of Individual Properties
Objections are heard by Conservation Review Board (CRB) CRB is
very biased in favour of heritaging properties. Dont say something
like I dont want to pay for the upkeep, or this is too much trouble.
That probably isnt going to fly.
CRB is only an advisory tribunal it can only make recommendations
to a municipal council
CRB must report to council within 30 days of hearing
After considering CRB report, council must pass by-law to designate
property OR withdraw the notice of intention to designate
Council decision is final - no appeal to OMB
Restricted Appeal Rights
You can challenge if you think the municipality has done something
out of spite or to punish you as a property owner.
OHA also contains limited appeal rights where the municipality seeks
to repeal or amend the reasons for designation or where an
application to alter a designated property is made:
Referral to the CRB for a hearing
CRB reports to council within 30 days
After considering CRB report, council makes final decision
No requirement of subsequent public hearing prior to making
decision
No appeal to OMB
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Planning Act
Application
Delegated Authority
Financial Administration
Municipal Act 2001 and Financial Admin
Section 2:
2. Municipalities are created by the Province of Ontario to be
responsible and accountable governments with respect to matters
within their jurisdiction and each municipality is given powers and
duties under this Act and many other Acts for the purpose of
providing good government with respect to those matters.
Sections 8 through 11 cover broad powers and spheres of
jurisdiction
Section 17 provides exceptions to broad powers regarding certain
financial matters
Section 17 provides the restrictions:
17. (1) Sections 9, 10 and 11 do not authorize a municipality to,
(a) impose taxes;
(b) borrow or invest money or sell debt;
(c) incur debt without borrowing money for the purpose of obtaining
long-term financing of any capital undertaking;
(d) enter into agreements for the purpose of minimizing costs or
financial risk associated with the incurring of debt;
(e) make a grant or a loan;
(f) take any other prescribed financial action;
(g) become a bankrupt under the Bankruptcy and Insolvency Act
(Canada); or
(h) as an insolvent person, make an assignment for the general
benefit of creditors under section 49 of the Bankruptcy and
Insolvency Act (Canada) or make a proposal under section 50 of that
Act.
Parts regarding finances:
General
Financial Administration Part VII
Municipal taxation Part VIII
Limitation on Taxes for Certain Property Classes Part IX
Tax collection - Part X
Sale of Land for Tax Arrears Part XI
Fees and charges Part XII
Debt and Investment Part XIII
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Financial Reporting
Audit conducted annually by auditor
294.1 every year, audited financial statements are to be
prepared in accordance with generally accepted accounting
principles for local governments as recommended, from time to
time, by the Public Sector Accounting Board of the Canadian
Institute of Chartered Accountants
Public reporting requirements section 295
Publish notice that statements are available
Make them available to any taxpayer at no cost
Subsection 294(1) requires the annual preparation of
a financial information return (FIR) in the form
required by MMAH and submit it to the ministry
What does MMAH do with the FIR? Goes on the website. You can
get all the municipal finance stuff from forever on the website. Pretty
cool.
Municipal Performance Measurement Program
(MPMP) financial and operating performance
(benchmarking)
There is also mandatory reporting on certain
reserves, like development charge reserves
Policy Framework
Municipalities are generally autonomous to make own
decisions, within legislative and policy framework
There are some restrictions
Section 106 no bonusing
Section 107 power to make grants
Section 270 requirement for procurement policies
Sections regarding investment policies Part XII
Requirements to establish budget, set tax rates, levy
taxes
Some provincial oversight
Financial reporting
Municipal Affairs Act
Provincial-Municipal Audit
Oversight
RARE
Ontario Municipal Board regarding debt level issues
This doesnt happen very often. If you get too close to your debt
ceiling, someone will call you up and shout at you.
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The province came out and said there was a range of fairness. Its a
balance between the municipalities and how much money they need,
and all the lobbying they receive from big business lobbies.
On-line Property Tax Analysis System tax modelling and tax shift
analysis tool.
A GIFT from the Province! Wow! Such generous! Very internet.
Every class is in OPTAS every year. Its basically a manipulation
matrix to see where the burden is and how much money will be
generated.
Requirements regarding limitations on year over year tax increases.
Take-home rule: if someone asks you about this, ask someone else.
Tax Collection:
OMG PAY YOUR FUCKING TAXES
Part X of the Municipal Act
Letters and phone calls if you dont pay. At 3 years there are things
called Tax Sales.
MA S.2(1), S.2(2), S.3
In addition to taxes, there are certain charges that are owed the city
that can be collected at an eventual time. Priority Lien Status: the
ultimate recovery mechanism that allows the Municipality to get their
money
Property tax bills.
1st by-law of the year permits temp borrowing from the bank. Second
bill is a by-law authorizing the city to charge up to half of what the
year previous was. Just for cash flow.
Content and form of tax bill are legislated under S.343, Minister of
Finance may prescribe form S.344
Regions dont send out tax bills, it the lower tier and single-tier.
Education tax rates are set by the provs and they are collected by the
lower/single tiers as well.
Must have a by-law authorizing instalments.
After 3 years, the process can be started CAN BE STARTED,
sometimes there are good reasons to leave it alone - with the
registration of a tax arrears certificate on the title to the property,
setting out the outstanding amount of taxes owing and the cost to
bring the account up to date.
They figure out how much it would cost to get the money owed, and
thats the Cancellation Price.
Once you have that, you have to give notice within 60 days.
During the one year registration period Council can pass a by-law to
enter into an extension agreement with the owner (or other person
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with interest) to extend the time to pay the cancellation price (S.378)
This is a good idea because some people are temporarily poor.
Cannot reduce the cancellation price, cannot prohibit any person from
paying the cancellation price at any time. Just gives them more time.
If during the one year period the amount is paid, thats it. If not, the
city can carry out a Tax Sale. Auction or tender. Tender is the most
common. This is a public process. Minimum amount is usually the
cancellation price.
Lots of notices and form obligations. If the bid is for more than its
worth, the city gets their money and the rest goes to court. There, a
creditor can apply to get the money. You ask for the rest after a year.
If no bids are received or if no qualified bids are received, the
municipality has one year to decide if it wants the property or not.
This is important because in the old days, if there was no qualified
bid, the property vested in the city automatically.
Very long conversation about the tax sale process. Pretty unfair.
If you want a Request for Reconsideration you HAVE TO APPEAL BY
31 MARCH of the next year.
You can appeal the appeal! 90 days following the RfR decision.
Parties to an appeal:
Property owner/tenant
MPAC
Municipality
Types of disputes:
Assessed value too high
Assessed value is incorrect
Incorrect school support
Incorrect person on roll
Property classification is incorrect
Payment in Lieu of Taxes
What is it? Govt owned properties dont pay taxes, but they do pay
PIL. To represent what tax payments WOULD have been had the
property been fully taxable.
Discretionary they dont have to pay it.
Halifax v Canada
Feds said the Citadel was worthless. Hali took them to court.
Court said the Ministers decision that the Citadel was worth $10 was
unreasonable.
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Mississauga v Canada
Whether the property was federal property or not because it was
leased to the GTAA and then sub-leased to private businesses. Subtenants defaulted. The result???
Municipal Budgets
REQUIRED under S.290 of the Municipal Act.
Most municipalities start partway through the year before. Mostly
done by November. Meetings, policy priorities, etc etc. Lots of work.
MPAC needs to pay for itself, so they charge municipalities whatever
they think their share is.
Operating v. Capital budget.
Fees and Charges
S.391 of the Municipal Act (part 12) permits imposing fees and
charges.
S.391(5) says that if there is a conflict between a fee or charge by-law
and the Municipal Act or any other act or regulation, the fees and
charges by-law prevails.
Enbridge v Toronto
Toronto wanted money for digging up sidewalks. Enbridge said this is
NO FAIR. Court said Enbridge was full of shit. Upheld the by-law.
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