Section
National Municipal Law Section
Date
April 8-9, 2016
Location
Sheraton Ottawa
Submitted by
BC Branch Representative: Philip Huynh
Report
Friday, April 8, 2016 – the CBA National Municipal Law Section held a Section Dinner at Mamma Teresa Restaurant in Ottawa. Saturday,
April 9, 2016 – The Section Executive Meeting was held at the Sheraton Ottawa, from 8:30 a.m. to 4:30 pm.
The Agenda included the following:
- Introductions and Approval of Agenda. In attendance:
- National Officers/Executive Members
• Andre Daigle (Current Chair National Municipal Law Section, New Brunswick)
• Lindsay Parcells (Vice-Chair)
• Robert Peterson (Secretary-Treasurer)
• Leo Longo (Past Chair)
• David Potts (Ontario)
- Branch Chairs/Representatives
• Louis Beauregard (Quebec)
• Krista Boryskavich (Manitoba)
• Steven Dribnenki (Saskatchewan)
• Churyl Elgart (Alberta)
• Philip Huynh (BC)
• Raj Kehar (Ontario)
• Heidi Walsh-Sampson (Nova Scotia)
- CBA Staff
• Astrid Hoffman (Staff Liaison)
• Gillian Carter (Lawyer, Legislation and Law Reform)
- Guest
• Daniel Rubinstein (Federation of Canadian Municipalities)
- Report from the Chair: Andre Daigle provided both a written summary and oral report on the following:
- Federation of Canadian Municipalities: Leo Longo initiated discussions with FCM to find issues of national interest that the CBA and FCM could collaborate on. Potential issues included PILTS, prayer at council meetings, and Canada Post mailboxes (the Hamilton case), and others.
- Board Members Gone Bad: a NB regional service commission Board has decided enough is enough and formally requested that the Minister dismiss 2 board members for conduct unbecoming a director, including undermining the conduct of orderly meetings. The Board has taken the extraordinary measure of expelling 2 members of the Board so that it could hold orderly meetings.
- Heritage appeal: The Irvings want to build a new HQ in Saint John. The Heritage Board Approved and a former heritage planner appealed. The New Appeal Board has agreed to hear the appeal ASAP.
- Other issues: Andre will be attending the CBA National Legal Conference to bring up other potential issues of national importance for municipalities, such as:
i. Uber;
ii. Commission Charbonneu; and
iii. Statutes that regulate procurement – is there a uniform approach?
- Federation of Canadian Municipalities – Overview and Q&A
- Daniel Rubenstein provided an overview of FCM;
- FCM takes an active role in legal issues at the national level;
- FCM as a rule does not provide financial support to municipalities, but may intervene at the Supreme Court of Canada or a regulatory body like the CRTC if there is a case of national importance;
- Example is the City of Windsor case over the Ambassador Bridge before the SCC. The issue is whether the Federal Court of Canada can rule on the validity of a municipal bylaw.
- Sometimes FCM will be involved at Court of Appeal level if there is precedential potential – i.e. The Canada Post/City of Hamilton case;
- FCM is also involved in issues regarding cost recovery for municipalities from telecoms operating in municipal rights-of-way
i. FCM has handbook for municipal staff on ROWs, and how to apply CRTC precedence in negotiating access agreements;
- FCM also participated in the Chateaugay/Rogers case regarding the siting of radio antennas;
- Other projects that FCM is working on:
i. City of Halifax PILT case.
ii. FCM is also involved in providing guidance to municipalities on trade issues, such as compliance with CIDA. FCM is working on guidance for municipalities on their procurement obligations under international trade agreements.
iii. RCMP labour relations – Bill C7 – allows RCMP to unionize. Possibility of compensation costs going up through arbitration. Costs may go up for local governments.
- Rubenstein discussed how the CBA and FCM can work together:
i. Provincial sections are plugged in with local cases which might rise to national level, can provide input on these cases to FCM for its consideration.
ii. Issues re: aboriginal land rights, working with city solicitors on what are best practices.
iii. Marijuana legalization – how should we engage with this?
iv. Sharing economy – UBER/Air BNB – FMC is just monitoring the issues at the moment.
v. Climate change and potential liability implications for municipalities arising from having a private market for residential flooding insurance.
- Legislation and Law Reform: Gillian Carter discussed the following issues:
- Municipal lobbying registries
i. There is a vacuum in some jurisdictions regarding regulating lobbying of municipalities.
ii. There are regulations in place in Toronto, Hamilton, Ottawa, and Brampton.
iii. Several jurisdictions require lobbyists to register.
iv. The municipalities have different approaches. City of Toronto has an independent office which requires lobbyists to provide advance notice of lobbying plans. Other municipalities have an integrity registrar and/or require lobbyists to provide summaries of activity after the fact.
v. The CBA resolved to form a working group to conduct a survey of different approaches and to create an article to be posted on the CBA website regarding this issue.
- Interventions update
i. Fairmont Hotels: CBA declined to intervene in this case regarding a tax rectification issue – the case does not fit into CBA policies regarding access to justice, national importance, etc.
ii. Lizotte v. Aviva: CBA intervened in case regarding litigation privilege.
iii. Alberta Privacy Commissioner: CBA intervened in a case involving solicitor-client privilege
- Considerations for appropriate cases for intervention:
i. Significant contribution to issues considered by court;
ii. Consistent with CBA policy in the past;
iii. Addresses core issues of legal profession generally;
iv. Only in exceptional cases will the CBA intervene in cases regarding the development in a substantive area of law.
- Joint Policy Statement on Audit Inquires (“JPS”)
i. The new JPS will be effective December 1 of this year;
ii. Express inclusion of in-house counsel;
iii. Gillian Carter provided a JPS FAQ and flow chart.
- Branch Reports
- BC - Philip Huynh:
i. Philip Huynh updated the group on recent developments in the law relating to regulation of marijuana grow-operations, including Allard v. The Queen (where the Federal Court of Canada held unconstitutional the federal Marihuana for Medical Purposes Regulations ("MMPR")); Abbotsford (City) v. Weeds Glass & Gifts Ltd. (where the BC Supreme Court ordered an injunction against the operation of a marijuana dispensary without a business license); and an overview of the City of Vancouver's new regulations for marijuana dispensaries.
ii. Philip Huynh also provided an update on recent BC Branch section activities, including an upcoming meeting on recent cases involving homeless shelters in municipal parks.
iii. Lindsay Parcells recommended that a CBA working group be created to examine the legal issues surrounding homelessness. A resolution creating the working group passed.
- Alberta - Churyl Elgart: Churyl Elgart provided summaries of the following cases of interest:
i. Thomas v. Edmonton: issue was whether the availability of an appeal process from a Board decision could cure a failure to provide adequate consultation. The Court of Appeal held that the availability of appeal did not cure the lack of consultation.
ii. Rao: Issue regarding jurisdiction of appeal board regarding appeal from development authority on interpretation on height.
iii. Gravel extraction: a case regarding three potential routes for gravel extraction. The Board did not provide reasons for its consideration of one of the routes. Held that adequate reasons were not provided.
iv. World Health: a development permit dealt with 4 out of 5 pieces of land. The newspaper notice mentioned only one piece of land. The Court held that the notice was insufficient, even though people were aware of the land in question.
- Saskatchewan - Steven Dribnenki:
i. Steven Dribnenki discussed the amendments to municipal conflicts of interest legislation:
• These amendments arose out of the Sherwood inquiry in which a Reeve had a pecuniary interest in the land that was subject to a proposed development.
• Three acts that were amended.
• There is no standalone conflicts of interest act.
• The common law requirements were cleared up by the amendments.
ii. Mr. Dribnenki also discussed the following cases and developments:
• Baker v. Sherwood (ability of councillors to be reimbursed for legal expenses)
• Kruse v. Santer (councillor's financial interest was deemed too insignificant to be a conflict of interest)
• Shellbrook v. Muller (Judge can exercise discretion granted by statute to decide not to remove member for a pecuniary interest)
• Multi-material recycling program: implemented by Saskatchewan to help fund municipal recycling costs.
iii. Mr. Dribnenki also provided an update on recent Section activity.
- Manitoba - Krista Boryskavich:
i. Section activities: Krista Boryskavich explained that because Manitoba consists of one major city, the municipal bar consists of the City of Winnipeg's in-house lawyers and a small private bar. The section had one session this year - City of Winnipeg 101 to advise those who deal with City on its processes.
ii. Special planning district: A special planning district was created in one area of the province. Planning authority was taken away from the RM and placed with a committee, appointed by the province. This is the first special planning area.
iii. Municipal Bylaw Enforcement Act: The provincial election is approaching. All municipalities are preparing for the proclamation of the Municipal Bylaw Enforcement Act, which will change how bylaws are prosecuted. The Act takes enforcement out of the court system and is dealt with by the municipalities through screening officers and adjudication panels. Mandatory for parking, optional for other bylaw practices.
iv. Urban Reserves: there are large tracts of lands to be designated as Urban Reserves within the City of Winnipeg. There are issues regarding whether municipal bylaws apply to these reserves, and related issues regarding the provision of municipal services and development agreements with First Nations on these reserve lands. One reserve has agreed to have Winnipeg bylaws apply, with the City enforcing the bylaws. At least one other reserve has not agreed.
- Ontario - Raj Kehar spoke of legislative and policy developments regarding the Ministry of Municipal Affairs. Key highlights include:
i. Bill 73 - Smart Growth for our Communities Act
• Amends the Planning Act and Development Charges Act
• Has received Royal Assent and some sections are already in force.
• The government also struck a stakeholder group to look at the criteria for minor variances, something that Bill 73 proposes to modify. The Section participated in the stakeholder advisory committee.
• Another issue for comment from the section are the notice provisions on Planning Act applications.
ii. Review of the Provincial plans
• Provincial plans guide how municipal plans are created.
• Among other things, they identify natural heritage features and designates density for different areas of the province.
• An advisory panel is currently reviewing provincial plans, and amendments to the plans are forthcoming.
iii. The City of Toronto Act and Municipal Act are coming under review.
iv. The OBA is also looking at the Municipal Conflict of Interest Act, and particularly the severe penalty provisions, which may require members to vacate their seat.
v. The Province is reviewing the Municipal Elections Act - ranked ballot system as a means of voting.
vi. The Ontario Municipal Board is coming under review. There is a ten-year cap on tribunal members to sit on the tribunal. This is a concern for the Section because 70% of OMB will be in retirement in the next couple of years. Succession planning is an issue.
• This issue ties in with the Province's review of the scope and effectiveness of the OMB. Some municipalities believe that the jurisdiction of the OMB should be limited to questions of law only.
vi. With section activities, Ontario has 8-9 programs a year, with 100-150 in attendance. The OMB think-tank is coming up, to dialogue on how to improve the Board. Board members will be dialoging with members of the bar.
- Quebec - Louis Beauregard provided the following update
i. Charbonneau Commission: The Commission found that there was no direct link between provincial contributions and contracts. Links were found at the municipal level. The government has picked up a number of recommendations from the report, including the creation of a Public Markets Authority. The Commission wishes for leaders of political parties to be held responsible for their political financing techniques. The Report also recommends the establishment of a stronger regime to protect whistleblowers, in order to promote the denunciation of reprehensible acts and in discouraging them altogether. Measures include:
• UPEC - police job to find corruption
• Procurement of contracts under provincial authority
• Housing Corps will be subjected to same rules as with cities
• More powers to auditor general of Quebec. Bigger cities, Quebec and Montreal, already have auditor general. Smaller municipalities to be audited.
• Voluntary reimbursement program instituted. Many are submitting voluntarily to the program.
ii. Mouvement Iaique Quebecois v. Sauenay (Ville): Case regarding prayer before council meetings. Obligation that the State must be neutral is reconfirmed. Note that John Mascarin has written a very useful article on this topic in the Municipal Law Digests.
iii. Foucher v. Demers: Case regarding eligibility of Councillor who did not live in Laval for 12 continuous months. The Court held that the 12-month residency requirement did not have to be consecutive.
iv. GM Developpement v. Quebec (City): Court found a verbal contract between the City of Quebec and a developer based on an ongoing relationship.
v. Protection of wetlands: A hot issue in Quebec is compensation of wetlands. This is a provincial matter, wherein the Ministry of Environment may allow the filling in of certain wetlands for compensation. There is now a trend for municipalities to institute a parallel regime, although there is no specific statutory power given to municipalities to regulate wetlands.
vi. Regulatory takings: Regional municipalities have designated large tracts of land as forests, freezing development. This is arguably a disguised expropriation that is being challenged by developers.
- Nova Scotia (Heidi Walsh-Sampson)
i. Isenor v. Halifax (Regional Municipality): Heidi Walsh-Sampson provided a summary of this case, which pertained to the boundary between municipal and provincial powers. The Province has the power to issue licenses permitting quarries, however the Regional Municipality of Halifax did not permit the extractive facilities at issue. The Nova Scotia Court of Appeal held that Halifax's bylaw was invalid, as it trespassed provincial jurisdiction. Leave to appeal to the Supreme Court of Canada was denied.
- Communications – Lindsay Parcells
a. Lindsay Parcells provided a summary of developments for the Section's website. He will canvass each provincial section member for articles. Will post top three articles to the website. The plan is to do this monthly.
- Planning and Priorities for 2016-2017
- Leo Longo provided a handout on the new strategic direction for the CBA;
- Group discussion had regarding encouraging participation from new law students:
i. issue raised at the mid-winter report
ii. essay contest was one idea to encourage participation
iii. putting someone with less than 5 years practice on executive is another idea
iv. perhaps have a member of the newly created law students forum join this committee as an ex-officio member
v. provincial branches might do the same thing -- bring it up at the branch level to include student or lawyer under 5 years-experience as ex officio member
vi. Philip Huynh advised about BC section's initiative to pay for law students to attend one of the section meetings
vii. Leo Longo wants to update list of law schools that teach municipal law course as a pool to draw on;
- Gillian Carter spoke about Legal Health Checks and is looking for ideas for municipal topics.