The Importance of Having Legal Counsel for your Aggregate Extraction Licence Aggregate (sand, gravel, stone) extraction is one of the most controversial and heavily regulated industries in Ontario. Necessary to build infrastructure in the province, it is often misunderstood and underappreciated. The industry is governed by a complicated web of legislation and policies: the Aggregate Resources Act (the “ARA”), the Ontario Water Resources Act, the Environmental Protection Act, the Endangered Species Act, the Federal Fisheries Act, the Planning Act, the Provincial Policy Statement and, in some cases, the Growth Plan. It is further subject to a complex set of rules and procedures. Licensing Approval Process An operator cannot operate a pit or quarry without first securing a licence from the Minister of Natural Resources and Forestry (the “Ministry”). The terms and conditions of the licence will depend on a number of factors, including whether the extraction is above or below the water table, whether the extraction is on private or public land and how much aggregate is proposed to be extracted. There are 15 categories of licences. The process of obtaining a licence can take years and involves a process of comprehensive consultation with the local community and, where applicable, First Nations. It generally requires the production, and peer review, of environmental, noise, traffic, dust and water reports. Applications for local planning permissions (official plan and zoning by-law amendments) are often required. It engages a number of agencies, including municipalities, the Ministry and Conservation Authorities. A crucial part of the process is the negotiation of the terms of the site plan which sets out the requirements under which the pit or quarry will operate, outline what must be done to mitigate potential adverse impacts and what must be done to rehabilitate the site once the extraction process has finished. It may also be necessary to enter into agreements with the local municipality are often required as a condition of achieving a licence or planning permission. Often an application will need to be considered by the Local Planning Appeal Tribunal, a court-like body that will hear evidence, consider objections to a licence and decide whether it should be issued. Factors which determine if a licence will be issued The general factors to be considered in issuing a licence are listed under s. 12 of the ARA. These factors, designed to protect the public interest, are broad and subject to considerable interpretation. As a result, it is important to engage a lawyer early on to help guide the application successfully through the process. As an example of a successful intervention, DSF lawyers were at the forefront of seeking amendments to the ARA to prohibit municipalities from demanding fees from aggregate operators to pay for road maintenance and repairs. This has resulted in significant cost savings for existing and future clients. The Importance of Experience DSF Lawyers in Aggregate Approvals A successful licence application requires a keen understanding of the applicable law, sound planning and solid execution. Our experienced lawyers at DSF are ready to help you. David White is a leading lawyer in the area, having had notable success in securing licences and planning approvals for a wide variety of extraction proposals, including those which faced strong municipal and local opposition. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Planning and Development LawSeptember 29, 2020April 3, 2024
Indigenous Consultation and the Aggregate Licensing Process The duty to consult and to accommodate indigenous peoples can arise at any time in the aggregate licensing process. The failure to properly address the duty will not only cost time and money, but it will also damage relationships with indigenous communities, lead to a rejected licence application or the loss of an already-issued licence in circumstances in which the court finds that the duty has not been fulfilled (Saugeen First Nation v Ontario (MNRF), 2017 ONSC 3456). Its Source and Scope The duty to consult and to accommodate is part of the fundamental law of Canada, imposed by s.35 (l) the Constitution. It overrides federal as well as provincial law and affects private rights in the property, including land on which pits and quarries operate or on which they are intended to be operated. The duty arises “when the Crown has the knowledge, real or constructive, of the potential existence of the aboriginal right or title and contemplates conduct that might adversely affect it.”[1] The threshold is relatively low; a credible claim suffices. Once triggered, the scope of the duty is on a spectrum and depends on the nature and strength of the rights in question and the seriousness of the potential impact on them. On the low end, the duty may include notice to the affected communities and information about the pit or quarry in question. At the higher end, the communities could be part of the decision-making process. What It Means There is no duty to come to an agreement nor do indigenous communities have a veto. That said, the Crown must act honourably and consultation must be meaningful, not simply perfunctory. Technically, the duty is not imposed on aggregate operators although, practically speaking, the Crown can delegate “procedural” aspects of it to others. In this respect, an operator may be required to deal directly with the relevant communities to notify them of the proposed project, provide them with information, fund some aspect of their participation in consultation, and modify the project to accommodate any concerns. It is, however, the Crown, not the operator, which has the duty and must assess whether it has been fulfilled, subject, of course, to a constitutional review by a court, if challenged. What happens if the consultation is insufficient? Everything can go wrong: a proposed project can be derailed, delayed, and, in some cases, effectively be stopped in its tracks. Dealing with it properly is, effectively, not only the right thing to do, but it is the cost of doing business. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Planning and Development LawSeptember 10, 2020April 15, 2024
Ontario Stone, Sand & Gravel Association Expresses Support For Aggregate Approval Process The Ontario Stone, Sand & Gravel Association (“OSSGA”) has recently written to the Honourable Doug Ford, premier of Ontario, to state that the Premier should not interfere in the licensing and approval process for pits and quarries in the Province [1]. OSSGA did so in response to alarming comments made by the premier about preventing, at any cost, the licensing of a quarry in the Milton area. Comments here. The aggregate industry is vital to Ontario. The stone, sand and gravel which it supplies are used to build homes, schools, libraries, colleges, universities, hospitals, fire and police stations, as well as to construct roads, highways, water and sewer infrastructure, public transportation systems, workplaces, recreational and social centres, arenas and stadiums. We all contribute to the need for aggregates and we all benefit from the activities of the industry which extracts them. Aggregates are to be extracted as close to market as possible to ensure an economical supply of material with shorter truck trips. This also significantly lowers overall emissions. The industry creates jobs, generates vital revenue for local governments and operates under strict regulations. To balance the interests of all stakeholders and to protect the public, the licensing and operation of pits and quarries are subject to the requirements of the Aggregate Resources Act, the Planning Act and 23 other pieces of legislation and hundreds of regulations. The process also involves consultation with First Nations, the scrutiny of provincial government ministries, the review of local planning authorities and governments, the examination of the community, and, often, a hearing in front of the Local Planning Appeal Tribunal. The process is a careful, deliberative, and rigorous one. It takes years and a wide array of technical and expert reports, including environmental studies, to complete. At the end of the life of a pit or quarry, the land must be rehabilitated, which adds green space to the Province. The aggregate licensing system in Ontario represents a solid, safe and sustainable approach to bringing vital material to the market. It should not be undermined by political considerations. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Construction Law, Planning and Development LawAugust 10, 2020July 5, 2023
An Increase In Lots May Lead To An Increase In Opposition In the City of Toronto, consent applications are required for a variety of reasons, however, one of the most common ones is to divide the land into multiple lots. Depending on the municipality, consents are often dealt with by the Committee of Adjustment, however, that is not always the case. In the City of Toronto, for example, the Committee of Adjustment can make decisions regarding the creation of new lots, whereas decisions regarding other consent applications such as establishing easements or adding land to an abutting lot are directed to the Deputy-Secretary Treasurers of the Committee. In the residential context, severing lots often results in the opportunity to build multiple dwellings where previously there was only an opportunity to build one. In other words, severing land is often a precursor to intensification and additional development. Perhaps unsurprisingly, this has led to opposition to consent applications. Take for instance a recent application in Weston where a resident has applied to sever his lot which is 53 feet wide and is currently facing opposition from the Weston Historical Society & Conservation District. The Historical Society’s main concern appears to be ensuring that development is consistent with the character of the area. This may just be one of many reasons why a neighbour may take issue with your severance application. The resident’s application has not yet been heard by the Committee of Adjustment. Consent applications can be time-consuming and costly especially when faced with opposition and a potential appeal thereafter. If you are considering making a consent application or a minor variance application, Devry Smith Frank LLP’s Planning and Development Group will be happy to provide you with the guidance and support that you require throughout the process. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Planning and Development LawNovember 28, 2017June 17, 2020
Oakville Rejects Proposal to Demolish Glen Abbey Golf Course One of Ontario’s finest golf courses that has hosted 28 Canadian Opens, was on the docket at Oakville Town council on Wednesday, as ClubLink applied to have the historic golf course demolished. Oakville town council voted unanimously to reject the plan proposed by ClubLink, which was filed on Monday to make way for homes, offices and stores. ClubLink filed the application under section 34 of the Ontario Heritage Act, leaving the RayDor Estate House, Canadian Golf Hall of Fame and Museum, and the Stables untouched, the rest, demolished. The proposed plan for the development of the land involved: 141 detached homes 299 townhomes 2,782 apartments Retail space Office space Parks Open space Heritage areas Prior to the proposal going to town council, local residents expressed their concerns with what the proposed development of the golf course might do to the local area. They were concerned with the traffic levels, loss of green space, density levels, and losing a world class golf course. The application was submitted in response to the decision by the Oakville Planning and Development Council to pass a notice of intention to designate the entire property under the Ontario Heritage Act. If you need assistance navigating Ontario’s provincial policies regarding development and growth, are considering developing a piece of land, or have concerns about a development near you, Devry Smith Frank LLP’s Planning and Development Group can provide you with the guidance and support that you require. By: Nicolas Di Nardo “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Planning and Development LawSeptember 28, 2017June 18, 2020
Amendments to the Residential Tenancies Act On Friday, September 1, 2017, changes to the Residential Tenancies Act, 2006 (“RTA”) affected how landlords can terminate a tenancy. Bill 124, Rental Fairness Act, 2017 amended some of the RTA provisions on terminating a tenancy. The amendments provide renters with more protections. Background Under the RTA, s. 48(1), a landlord is able to terminate a tenancy for the landlord’s personal use. This means that a landlord can terminate a tenancy in good faith for personal uses such as: possession for a family member, for his or her spouse, for his or her children, for his or her parents or for his or her spouse’s children or parents or a caretaker of any listed family members. The family member has to live in the unit for at least a year. Here’s an example of how this rule plays out: David owns a rental unit in Yorkville and his oldest daughter, Carly, just got accepted to the University of Toronto. David wants Carly to move into the rental unit so that she can be close to school. Under the RTA, David would be able to have the tenant vacate the unit and have his daughter move in. There are specific timelines for how much notice he would be required to give under the RTA. David can legally remove the tenant as long as this is done in good faith and Carly lives in the unit for at least a year. The Changes When a tenant is evicted under this section of the RTA, the landlord will not get off scot free. Under the new section 48.1 of the RTA, landlords will now have to pay the tenant one month’s rent as compensation or offer the tenant a comparable rental unit. This means that when David is evicting his tenant, he either has to pay the tenant one month’s rent or offer the tenant another unit. The Effects Tenants now have more protections against eviction. Landlords will have to be careful to comply with the new eviction rules. If a landlord wants to move a relative into a rental unit, landlords will have to compensate the current tenant or offer another acceptable rental unit. The relative has to actually live in the unit for at least a year. If the landlord bends this rule in order to re-rent at a higher rate or convert the unit, there will be repercussions. This can be in the form of a fine up to $25,000. So if our friend, David, re-rents the unit to a new tenant at a higher rate, there could be monetary penalties. The Landlord and Tenant Board may award a large fine against a landlord if he or she tries to circumvent the rules. This new rule is a way to deter landlords from re-renting a unit at a higher rate or converting a unit. This comes as part of the government’s housing plan, which was announced this spring. This included a cap on rental increases in 2018 at 1.8 percent. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Planning and Development Law, Real EstateSeptember 19, 2017June 18, 2020
Midrise Condo Battle may go to Mediation with OMB High-profile residents of the Annex have brought their fight against a proposed midrise condo development to the Toronto & East York community council, which agreed Wednesday to have the city’s lawyer ask for mediation at the Ontario Municipal Board – a move they will consider next month – which is most likely to go forward. In our previous article, we mention the outrage residents had against the proposed development at 321 Davenport, with complaints from residents such as Margaret Atwood and Galen Weston Jr., both calling the development a “brutal and arrogant assault on [their] community.” Not to mention, the issues they have with privacy, as balconies may provide potential residents the ability to peer into their backyards at any time. There was little mention of any other issues in the previous post that was published, however, another concern has been made public after many residents of Toronto lashed out on social media, calling the likes of Atwood and Weston Jr. NIMBYs, which they intended to respond to. They have taken a stance, stating that they are not against the development, but that they have concerns surrounding the initial proposal of the development and the impact it will have on the environment, citing a concern such as the preservation of mature trees in the area. The proposal is said to develop “luxury” style homes within a condo building sitting 8-storeys high, with 16 large condos. City staff are in support of this development, as it is going to take the place of a 2-storey commercial building. Through mediation, developer Robert Cooper is hopeful that this will be resolved, as they are “willing to work cooperatively with the neighbours” to achieve a proper final proposal that provides “new midrise housing opportunities and appropriate intensification within an urban neighbourhood.” Atwood’s lawyer, Michael Melling too believes “[the] concerns can be resolved.” If you are in need of a planning and development lawyer or real estate lawyer, please contact our Planning and Development lawyers or Real Estate lawyers today. If you have any other questions, you can contact our office directly at (416) 449-1400. By: Nicolas Di Nardo “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Planning and Development Law, Real EstateSeptember 7, 2017June 18, 2020
Mid-rise Housing, The Next Best Thing for Toronto Real Estate? With detached homes in Toronto reaching unattainable prices and an abundance of high rise condos taking over the city skyline, most of which are either purchased and sitting empty or demanding rent that is extremely high, could midrise development within some of Toronto’s neighbourhoods be the answer to the homeownership struggle many Torontonians are facing? Toronto planners think so, as they claim it would not overwhelm neighbourhoods and at the same time, will provide housing for thousands. Midrise buildings are typically four to eleven storeys, that many NIMBYs are opposed to having populated their neighbourhoods. To find out more on NIMBYs and their influence on Toronto’s real estate, check out two of our previous blogs: Affluent Boomers are Taking Pressure from ‘YIMBY’ Groups in the GTA Reasons Why A Starter Home is No Longer an Option Midrise development is, unfortunately, becoming tougher for developers to propose and carry out, as these so-called NIMBYs, or locals to the neighbourhoods in which the midrise development is being proposed, fight these developers to try to halt their project. In the most recent fight against a midrise development, these angry residents feature some of Toronto’s elite, such as Margaret Atwood, Galen Weston Jr., Scott Mcfarland, and his wife, Cleophee Eaton (yes, the department store). Some of their claims to the government include simply, ruining the Annex and destroying their quality of life. An excerpt from Weston’s email to Toronto city councillor Joe Cressy reads: “The development, designed as is, will change the neighbourhood in such a negative capacity and will devalue all of the assets we currently love about living here; it will no longer be the ideal place for our young family to grow up. This building is an invasion of our privacy, our community, and an environmental assault on our neighbourhood.” Now, they are probably concerned mostly about their privacy. With success comes money, with money comes entitlement (for the most part). As columnist Emma Teitel puts it, “they’ve chosen to make a stink about the possibility that someday down the line, someone standing on a balcony will be able to peer into their yards and see them barbecuing corn.” They are failing to see the benefit of such a development. Their blurred reasoning and understanding of this development proposal, maybe due to the fact that they are very successful and don’t want peering eyes into their backyards as Teitel said, or it could merely be because they don’t know what it is like to not own a home in the fourth-largest city on the continent, thus they cannot fathom what it is like to be an average Torontonian in this day and age, and how much these midrise developments really do benefit not only the city but the area it is situated in as well. As much as people don’t like change (take the recent renaming of the ACC to Scotiabank Arena as a prime example) you are forced to either adopt, adapt, or leave. As many like to put it, you better shape up or ship out. In the past, NIMBYs have fought against an Ossington midrise, that they took all the way to the Ontario Municipal Board (OMB). In 2015, the OMB approved the project but made minor modifications to the plans. It was a six-storey, 85 suite building. Now that it is up, it is clear that it is the best thing to happen to Ossington in the last century, and many of the so-called NIMBYs are starting to realize that. With the outrage for the proposed Davenport midrise, will it surprise anyone if the fight goes all the way to the OMB? Probably not. Based on Galen Weston’s email to Cressy, it sounds like he will take it upon himself to make sure the OMB does review it. Yes, the Annex is home to a number of notable figures, but it is also a central neighbourhood with a subway, shops, and is walking distance to a major university in the city. The fight to limit the accommodation of people who inhabit Toronto, especially a region within Toronto that is already a bustling metropolis, therefore, seems foolish of the elite to be against. You’d think with all of their smarts and success, along with the results of past challenges presented to the OMB, our influential Annexers would think twice and let it be. If you are in need of a planning and development lawyer or real estate lawyer, please contact our Planning and Development lawyers or Real Estate lawyers today. If you have any other questions, you can contact our office directly at (416) 449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Planning and Development Law, Real EstateAugust 31, 2017June 18, 2020
The City of Brampton is Looking To the Future By: Nicolas Di Nardo The city of Brampton has hired a world-renowned urban planner to make the suburb of Toronto future-ready. Larry Beasley, urban planner, has been involved in the development of urban landscapes like Vancouver, Abu Dhabi, Dallas, and Moscow. Brampton is a rapidly growing suburb, and has one of the youngest demographics in the GTA. Currently, Brampton’s population of 600,000 is expected to grow to 1,000,000 in the next 20 – 25 years. This realization has caused the city to seek some direction from Beasley, by hopefully reinventing the city centre, and neighbourhood developments. A tough task for Beasley, considering Brampton has never had a master plan. There are certain things Beasley must put some focus on, as Brampton does lack: Alternative transportation infrastructure Business hubs A university A white collar market for residents to work in No “downtown” Beasley noticed all of the above, and also found that the city does not know what direction it needs to go, they lack a sense of how it needs to change, and hopefully he can guide them in the direction they want to go. This is evident through the residents’ comments about local councillors, saying “there has been a steady decline in the conduct, passion, and professionalism…people are beginning to lose hope that change is even possible.” By enlisting Beasley, change is possible, but it is up to the city to take his recommendation and vision, and implement it. The public will be heavily involved and informed through the process, with “community-wide conversation” and public outreach campaigns, which Beasley says they will “craft their dream in front of them.” Beasley is hoping to have the vision for Brampton’s future completed by May 2018. Suburbs have been through constant struggles, being in the shadow of big core cities like Toronto in the current landscape doesn’t help much either. A number of factors effect suburbs, such as soaring home prices, employment, and overall lifestyles of city inhabitants, which trends have shown more and more Canadians seeking suburb living over the hustle and bustle of the big city. This prompts a need for improvement to Toronto suburbs, and Brampton is looking to benefit greatly by improving their city for the future, to help it flourish. Being situated between Toronto and Waterloo, within Ontario’s planned innovation corridor, it is surprising that Brampton hasn’t called for improvements earlier. It’s time for Brampton to dream big and prepare themselves for a bigger, better future. If you need assistance navigating Ontario’s provincial policies regarding development and growth, are considering developing a piece of land, or have concerns about a development near you, Devry Smith Frank LLP’s Planning and Development Group can provide you with the guidance and support that you require. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Planning and Development LawJuly 4, 2017June 22, 2020
The Future of Canada Revenue Agency Enforcement Activities As noted in an earlier blog post, we discussed the joint CBC / Toronto Star investigation and subsequent release of the Panama Papers. In a subsequent Toronto Star article, the CRA states its intention to act more aggressively in pursuing those who commit tax fraud and tax evasion. Notable in its new aggressive stance, the CRA states in the Toronto Star article that those suspected of “aggressive tax avoidance or tax evasion” will be subject to more “severe consequences”, including “a lot more criminal investigations” and the fingerprinting of anyone charged with tax evasion. In Budget 2016, the Federal Government announced almost $500 million in additional funds to the CRA to assist it in its enforcement efforts. This money appears to have been immediately put to use by the CRA. The Toronto Star notes that “230 people have been added to the compliance department and lawyers are now being embedded in investigating teams”. The 2017 Federal Budget pledged an additional $1 billion to assist the CRA in its tax compliance efforts. The funds are being earmarked for increased investigative work, particularly in the “underground” economy, including construction and hospitality sectors, as well as to continue to develop computer programs, systems and algorithms to monitor and track high-risk potentially abusive transactions, such as international electronic funds transfers. Future targets include high net worth individuals who may utilize tax loopholes to gain what the CRA perceives as unfair tax advantages. The CRA has updated its website to prominently feature its efforts in cracking down on international tax evasion and tax avoidance. As part of the CRA’s efforts, they note that they have many tools at their disposal to combat tax evasion including: Reviewing Electronic Funds Transfers over $10,000 as they cross borders to and from Canada and studying specific offshore locations and certain financial institutions. Collaborating and sharing information with international partners such as the OECD’s Forum on Tax Administration and the Joint International Taskforce on Shared Intelligence and Collaboration; Identifying promoters of aggressive tax schemes; Identifying international non-compliance and abuses through its treaty networks; Creation of the Offshore Compliance Advisory Committee (OCAC), an independent advisory committee of experts which, on December 5, 2016, presented the CRA with the OCAC’s report on the Voluntary Disclosures Program (VDP), with its recommendations to improve and enhance the VDP program; Combatting aggressive international tax avoidance strategies of multinational companies through the CRA’s participation in the Base Erosion and Profit Shifting (BEPS) Action Plan and the Multilateral Competent Authority Agreement; Encouraging Canadians to report tax avoidance through the Offshore Tax Informant Program; and Encouraging Canadians to use the VDP to voluntarily correct their tax reporting by correcting a previously filed return or reporting otherwise unreported income or property. We can help. Although most Canadian taxpayers are compliant, sometimes errors or omissions occur. It is still possible to take advantage of the CRA’s VDP to voluntarily report omitted or incorrectly reported tax filings while potentially avoiding penalties. Tax planning opportunities are available to assist Canadian taxpayers in optimizing their affairs to obtain a favourable tax outcome. Contact DSF’s Tax Planning Group for advice and assistance. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Planning and Development LawMarch 30, 2017June 19, 2020
