News and Events

Don’t Be A Victim of Phishing

There have been a number of phishing schemes active recently that you should be aware of.

Phishing is a cybercrime in which a target or targets are contacted by email, telephone or text message by someone posing as a legitimate institution to lure individuals into providing sensitive data such as personally identifiable information, banking and credit card details, and passwords.

How to Spot a Phishing Scam

The Organization

Someone who is phishing will try to present themselves as an agent for a bank, Revenue Canada, Service Canada or some other governmental institution. Most often they will contact you by phone, but you may receive communication by text message or email.

The Bait

The message you will receive will be a pretext for something that is important to you and that you would normally act. upon. Your bank account is overdrawn, your credit card has suspicious charges, you have outstanding income taxes or Service Canada is after you for overpayment of employment insurance. There is a good chance you have received phone calls based on one of these.

Sometimes, the scammer will have your full name, mailing address and phone in addition to your phone number and may try to confirm one of more of these to make them sound legitimate.

The Hook

Let’s say you pick up the phone and receive a call suggesting your bank is contacting you because there are suspicious charges on your credit card.

Most likely the call will be a robo-call: i.e., the calls are placed by a computer that leaves a prerecorded message. A phishing call will give you a callback number and/or ask you to press “1” (or some other number) to be connected to a live agent.

If you actually end up speaking with a person, the clue that it is a phishing scam is that they will ask you to verify something to “prove you are who you say you are”. That information could be a social insurance number, a credit card number with expiry date and CSC number or a bank account number. This is what they rare really trying to get.

What are the Consequences?

If it’s credit card information they’re seeking, it could trigger a series of purchases made under your name.

If the information the scammer is requesting is a social insurance number, it could result potentially in identity theft. A social insurance number allows someone to get a drivers license, a health card or some other type of document that could allow someone to do illegal things in your name.

Someone could take out a mortgage on your house without your knowledge. You might only become aware of this when you try to sell your home.

How to Not Be a Victim

If you receive a phone call that sounds like a pre-recorded message, simply hang up. If the call really came from Revenue Canada or Service Canada, you would receive a letter from them if they had an issue. This is usually their first way to contact you and you would receive a phone call only if you failed to respond to their letter.

If you listen to a message and it sounds suspicious when the message says something like, “To speak with an agent, please press 1”, do not press the number. Hang Up.

If you get a text message that seems suspicious, do not reply. Delete it. Banks, credit card companies, and government agencies do not generally send text messages to communicate with citizens or customers.

If you get a suspicious email, do not reply. Delete it. And, once you’ve deleted it, empty your trash bin on your computer to ensure it is gone for good. An easy way to determine if an email is legitimate is to check the URL portion (e.g., @XYZcompany.com) of the email address to see if it is the same as the URL of the agency or company the email suggests it is from. If it’s not the same, it’s probably fraudulent.

The hardest tactic to counter is when a person calls you and wants to discuss an issue with you. As we noted above, they can seem very convincing when they have your name, address and phone number. They may event give you an employee ID number to sound legitimate.

When they ask for some kind of personal information from you, ask THEM some questions to confirm they are who they say they are and that they are indeed legitimate employees of an organization you deal with.

For calls about credit card charges, ask what the last balance was on your card and when and how much of the balance you paid. Only someone who works for the organization will know this and they should be able to answer that almost immediately. If they are slow to respond or sound hesitant, just hang up.

If the caller says they’re from a government agency, ask them what the amount was that was payable on your last income tax return and when you paid it. Similarly, with Service Canada, when did you last receive an EI payment and how much was it. If they can’t answer, hang up.

If you feel hanging up is being overly rude, you can simply say you don’t give personal details over the phone. A legitimate representative will understand why you are saying that and not take offence.

How to Not Become a Target

Guard your personal information as much as you possibly can. Never give this out unless you are 100% confident that the person you are giving it to is a legitimate employee or agent.

Phishers get some of their information about you by hacking corporate or government websites where you might be registered as a user. It’s not the easiest way, but develop a habit of changing your passwords regularly – every 6 months or so. You also can make your passwords harder to decipher if they are longer and contain a mix of character types: upper and lower case letters, numbers and special characters.

Set up your email system to identify potential spam or phishing emails and separate them from your inbox. You can set up rules for your email service to follow to know what to look for. Sometimes there will be a folder called Spam or Junk and your email system can learn how to differentiate between legitimate email and fraudulent email. You can teach it to do so.

Sometimes email phishing could trigger installing malware on your computer that can send personal information back to the scammer in the background. Run regular scans for viruses or malware. To make it simple, you can set up these systems to perform scans at preset times. Windows 10, for example, has a very powerful anti-virus and anti-malware application called Windows Defender. It’s free.

The Toronto Police Service also has tips and resources to help you prevent fraud. Click here to visit their page on Financial Crimes.

Quiet Streets Poll

Vandalism on the Boulevards of Long Branch

Does the photo above look familiar to you? Have you seen something similar?

We are fortunate in Long Branch that the City provides snow plowing during the winter to help make walking on Long Branch sidewalks safer for everyone.

However, over the past few years, Long Branch residents are seeing damage to the City-owned boulevards, where the sidewalk plows have gouged out swathes of turf from the boulevards. And the same thing is happening on the front yards adjacent to the sidewalks.

The winter of 2022-2023 was probably the most egregious example. The damage seemed more widespread and more severe than ever.

The City claims to have a fleet of 300 sidewalk snow plows, but our understanding is that plowing outside of downtown Toronto is handled by a joint-venture contractor as part of a $1 Billion contract.

Technically, homeowners aren’t on the hook to repair damage caused to yards and boulevards by sidewalk plows because these areas are owned by the City. However, most homeowners look after these areas as if they were their own property and take great pride in doing so. After all, a well-maintained yard is pleasing to the eye.

The cause of the damage is related to the equipment selected to do the plowing. In most of Long Branch, sidewalks are 48 inches wide. The apparent width of the plows is 60 inches wide. This means the plows will gouge out a 12-inch wide swathe on one side of the sidewalk or the other.

Photos of damage to boulevard and retaining walls

In the left hand photo above, you can see the fibre optic cable exposed and cut. (Rogers was too cheap to install cable with a protective conduit and buried the cable only an inch or so below ground level). The right had photo shows a retaining wall that was pushed about 2 feet by the sidewalk plow.

The City’s “solution” to this problem is to scatter grass seed over damaged areas of boulevards to re-grow the turf there. Then, when winter comes, those same areas get gouged again and, in spring, the City sows grass seed again. There’s an excellent article in the January18th edition of The Toronto Star that discussed this issue and why the damage seems worse than in previous years.

I submitted a complaint to 311 for the damage in front of our house. I received only an acknowledgement that I’d submitted a complaint. No other response.

I wrote to our City Councillor, Amber Morley, with the above photos and more. I received no acknowledgement or response. No phone call from one of her staff. And no visit from a staff member, even though I extended an invitation to see the damage first hand. Not impressed!!!

All that happened was – you guessed it – a crew eventually came around to spread a meagre amount of topsoil over the damage and throw some grass seed onto this. Despite all the rain we received recently, there are no signs the grass seed is germinating.

We get that maybe the selection of plow widths is limited (though we seriously doubt that’s the case). So, if the only equipment available is 60″ wide, it would make sense to update the sidewalks to be 60″ wide. That would mean taking up some of the boulevard, the adjacent front yards or both. But we don’t think residents would really complain about new sidewalks that we even and easier to walk on. Some of the sidewalks in Long Branch had cracked and heaving paving slabs that created tripping hazards.

A few years ago – pre-COVID – the City undertook a major project to replace curbs, sidewalks and re-pave streets in the western section of Long Branch where I live. This covered the north-south streets from Fortieth to Thirty Fifth as well as the cross streets. The curbs were removed and replaced. The streets were stripped and re-paved. However, the City only replaced damaged sidewalk slabs, meaing they kept the width of the sidewalk at its original 48″. On three streets, Fortieth, Thirty Ninth and Thirty Fifth, they replaced the entire sidewalks and replaced them with 60″ wide sidewalks. Why not standardize on all streets?

Why can’t this city get its act together?

The street renewal project described above could best be described as a cosmetic treatment. We’ve had numerous watermain breaks and sinkholes – signs of the aging infrastructure beneath our streets. The City replaced water mains (and sewers as well, I believe) on Thirty Fifth Street but not on other streets in our portion of Long Branch. Less than one year after this project, we had a major watermain break near the Tim Horton’s at Thirty Eighth and Lakeshore – one that literally lifted the roadbed over a foot and that had water spraying out of the asphalt. We had a couple of sinkholes on our street. It took the City nearly a year to repair them. Their idea was to put a traffic cone on the sinkhole.

While it would be an inconvenience to put up with the process of replacing water mains, we believe most residents would recognize it as a long-term investment. Plus, if you’re planning to replace the roadbed, it would be less costly, in the long run, to do the extra work to replace water mains and sewers so the newly paved streets will stay pristine longer.

What You Can Do

Write to our Councillor, Amber Morley, to let her know how you feel about this issue. It doesn’t look like she will take action until she sees how widespread this issue is and how we deel about it.

The COA Process Needs Fixing

With the passage of Bill 23 in December, 2022, Ontario residents no longer have the right to appeal a Committee of Adjustment (COA) decision.

This presupposes that the COAs deliver well-thought-out decisions based on evidence and application of existing regulations.

Applications that go before the COA generally fall into one of two broad categories. Minor variance applications typically are for new housing or renovations to an existing home. These are by far the majority. The other category is Consent applications – severances of a property into 2 or more parcels of land for some form of new construction.

The COA Process

When a minor variance application is to go before the COA, formal notices are sent out to neighbouring properties within a 60 meter radius. Residents are allowed to voice opposition by writing letters of objection or speaking before the COA panel during the formal hearing on an application. Often, residents’ concerns are about shadowing of their properties, lack of privacy and the style and/or scale of the proposed structure. Sometimes, there is only one minor variance being requested, but we have seen examples with as many as 8 minor variances.

The COA allows 5 minutes to each resident to express their opinions and concerns. The applicant likewise has 5 minutes to present his/her case, but also have the right to 5 minutes to offer a rebuttal to residents’ concerns before the committee renders its decision.

It may sound unfair to limit each resident to 5 minutes of speaking, but the COA has a huge volume of applications to process. In 2017, for example, the COA closed out 4,344 applications across the City – a little over 17 applications per working day. In 2017, COA panels across Toronto approved 3,398 of those applications – approximately 78%.

A Consent application usually ends up being at least 3 applications: one to sever the property and the other applications would centre around minor variances on the construction on the resulting parcels of land. At the COA, all of the sub-applications for a Consent application are heard together as one.

As with a minor variance application, residents are notified, they have the right to submit their concerns in writing and/or orally before the COA. Each resident is still only allowed to speak for 5 minutes, and the applicant has 5 minutes to present and another 5 minutes to rebut.

Obviously, Consent applications are more complex than straight minor variance applications. Applicants must show that the severance fits within the character of the neighbourhood and they also have to present their case for why the structures on the resulting parcels of land require minor variances.

We feel the way the COA currently handles Consent applications does a disservice to Toronto residents by inhibiting their ability to present evidence in opposition to the application.

The LBNA has been involved in over 20 appeals at TLAB – the majority of them consent applications. Unlike the 15 to 30 minutes the COA typically allows for hearing a consent application, some of the appeals have taken several days.

In introducing Bill 23, the Ford government sought to remove some of the roadblocks to construction of new homes. It appears they considered that one of those roadblocks was appeals by residents of COA decisions. They could argue that some of the appeals go on for days or months and seemingly point the finger at the residents as the root cause of lengthy appeals.

But let’s take a closer look at the length of these appeals.

The TLAB Process

At TLAB, the Applicant presents their case first, and the first witness is almost always a professional land use planner – an expert witness. In virtually every case we have participated in, the Expert Planner’s testimony takes up a full working day. They present their analysis of the neighbourhood and arguments about why their client’s proposal fits with The Planning Act, The Official Plan and the Bylaws. It can take up to a full day to cross-examine the evidence presented by these Planners, who often rely on their professional status and experience to present opnions about a proposal that are given weight by an adjudicator. Some of these Planners perform analyses that can only be described as superficial, and it takes time to show the holes in their arguments.

It’s not the residents that determine the content or duration of the presentation of evidence on behalf of an Applicant. It’s the lawyer representing the Applicant.

Sometimes, it feels like the applicants’ lawyers try to intimidate residents with the amount of material they present. The document filings and procedures can also be so intimidating, residents seem driven to find a lawyer to represent them. But not many residents can afford the cost of legal counsel, which can amount to between $20 and $50K depending on how long the hearing runs.

Deputation to the Planning and Housing Committee

In 2019, the LBNA presented some proposed amendments to the COA Process to make it more user-friendly. We saw the process as convenient for COA staff and panel members but onerous for residents. Here are some of the recommendations.

Separate Sessions

COA hearings typically are/were held between 10 am and 4 pm. While the COA posts an agenda noting the applications to be heard and the order in which they will be heard, residents have to commit to setting aside at least a 2-hour window. Because hearings on individual applications vary tremendously in duration, it is next to impossible to guarantee exactly at what time any application will be heard. On top of this, residents have to take time off work to attend COA hearings and this may also add commute times from their place of work. For residents who are hourly paid, attendance at a COA hearing could also mean sacrificing income.

The LBNA suggested holding applications for minor variance hearings during normal business hours, since these usually are the most straightforward cases, and represent the bulk of the COA hearings anyway.

Separate Streams

We also proposed severance applications be handled through a separate stream and process vs. minor vairance applications.

We suggested holding severance hearings during the evening to make it easier for residents to fully participate and express their concerns and also because, in any given month, the number of severance applications usually is relatively small compared to minor variance applications.

Perhaps the City should simply allow severance applications to bypass COA and go straight to TLAB. It’s obvious, by the time they take to argue, that severance applications are far more complex than minor vairance applications. And TLAB takes a more thorough, evidence-based approach to adjudication compared to the COA. Plus, in their written decisions, TLAB hearing chairs explain the reasoning behind their decisions, which the COA does not do, so there is more transparency than with the COA.

Perceived Bias

As noted above, the high approval rate for severance applications in Long Branch between 2014 and 2018 gave residents the impression the COA panel held bias in favour of developers. Here are some of the factors that we feel helped form this impression.

The COA panel during this time period seemed to consist of the same members time after time. While a normal COA panel consists of 5 members, often there were only 3, which Planning deems a quorum.

Frequently, during hearings, we would see the COA panel members huddle to confer. While this may be entirely innocent, it gives the impression of collusion.

The COA decisions are written with what is called “boilerplate” text outlining the reasons – that is, the SAME reasons appear on hundreds of decisions. Not only does this lack transparency, but it also is not in keeping with the spirit, let alone the intent of Section 45.8.1 of The Planning Act, which requires COA to not only describe the reasoning behind the decision, but also to describe the impact of oral and written submissions.

There is a legal principle known as “reasonable apprehension of bias”.

In the Canadian judicial system, a judge must not only be unbiased but also appear unbiased.

It is difficult to prove an adjudicator appears to hold a bias, let alone actually have one. The legal test involves proving that “a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the judge’s conduct gives rise to a reasonable apprehension of bias”. And the burden of proof would fall on the shoulders of the residents.

Note that, in the context of Reasonable Apprehension of Bias, the wording focuses on judges and does not appear to apply to other adjudicatory bodies such as the COA. Perhaps it should. And perhaps panel members should be required to formally swear an oath that they will be impartial in their duties.

Training

While the Long Branch Neighbourhood Character Guidelines were formally introduced in January, 2018, we did not have the impression the COA panel members actually understood how they were to be used. They seemed to accept the applicants’ representations that their proposals conformed with the guidelines in the face of more fact-based analysis by residents.

We also had the impression the COA panel members did not understand there are environmental chapters in the Official Plan – notably about protection of the urban forest – that need to be given weight.

Therefore, we proposed the COA panel members be given more thorough training on the Character Guidelines as well as on the environmental policies in the Official Plan.

Action by Planning

As far as we can tell, City Planning might be giving the COA panel members more training as we recommended, though the curriculum is not shared with us.

However, on issues like reasons for decisions, separation of applications into two streams (Minor Variance and Consent), Planning has done nothing.

What You Can Do

If you think the above arguments make sense, then please consider contacting our City Councillor, Amber Morley to let her know you’d like to see changes in the Planning process with respect to the COA.

Thwart Porch Pirates

I have a neighbour on my street who, it seems, has something sitting on his front doorstep every day. Sometimes the stuff is gone the next day. Sometimes it stays there for several days. I see cases of bottled water and packages from Amazon among other things.

If ever there was a way to signal to someone there’s no one home, this is how to do it. I’m not certain how many times his house has been broken into, but I do know it was broken into once in broad daylight on a weekend afternoon.

But that’s not the only risk of having stuff delivered and left at your front door. Your stuff can also be stolen by a “Porch Pirate”.

According to finder.com, 1 in 4 Canadians had had a parcel stolen from their home after it had been delivered by an online merchant. For 1 in 10 cases, the loss was over $250.

Want to avoid being a victim? Here’s what you can do.

Basic Procedures

Require a signature for deliveries so packages are not left sitting outside where they’re visible. It may require you to re-schedule a delivery or to go to a pickup location, but that beats having your stuff stolen.

Arrange for online purchases to be picked up – either at a bricks-and-mortar store or a courier depot.

Ask couriers to deliver to a neighbour’s home. Be sure to let your neighbour know so they’ll be there and ready for the delivery.

You can buy secure drop boxes for your front porch that can be accessed only by combination lock. You can direct couriers to place deliveries in the drop box and provide them the instructions on where it is and how to access it. Make certain the box is secured to the house in some way; otherwise, the thieves will just steal the box and all its content.

It’s also possible to buy a porch pirate bag – a reinforced nylon bag that is secured to your front door or gate. These are good for documents and small packages.

Here’s a photo of the original Porch Pirate security bag.

High-Tech

Place motion sensor lights about your entrance. They act as a deterrent – especially for thefts after dark. Most thieves shy away from the spotlight.

Set up security cameras around the exterior of your home. Wireless versions are best, because determined thieves will simply cut any cable from cameras that are wired in. Be sure they cover the front entrance and will capture the face of a person approaching it. Be sure they can capture images in low light, as in at dusk or after dark.

Install a doorbell camera at your front entrance. These usually are very good for picking up images of faces of persons approaching the front of your house and have a wide field of view to be able to capture people approaching from different angles. You’d be surprised at how many porch pirates have been caught by doorbell cameras – even ones installed on nearby properties.

Security measures aren’t perfect. They’re not guaranteed to catch a porch pirate in the act. But having them in place can serve as a deterrent. And isn’t that all you really want?

How to Prevent Frozen Pipes

Over the past month, a partner I work with and one of my nieces had pipes freeze and burst. The partner is based in Atlanta. My niece is in Raleigh, NC. Hardly areas where you’d expect super cold weather.

Here in Canada, frozen pipes are more common than we think and our cold winters are ideal conditions to trigger a frozen pipe. When water freezes, it expands, and this will stress the copper tubing in our plumbing to the point that it will rupture.

Frozen pipes are more than just a nuisance. They can damage possessions and furniture (usually) in your basement. Most homeowner insurance policies will cover at least a portion of the damage but, still, filing a claim just adds to the hassle.

Check out these suggestions:

Locate your main water shut-off valve inside your home and add a tag or label to it, so it is easy to locate and turn off quickly if pipes burst in your home.
Seal air leaks in your home and garage to stop cold air from getting in. Check around windows and doors, electrical wiring, dryer vents and pipes.
Insulate pipes in your home most prone to freezing including near outside walls, in the basement, or in a garage with an outside water supply. Use foam pipe covers available from building supply or home improvement stores.
Keep the house warm even if you’re away to prevent indoor plumbing from freezing, especially in the area near the water meter.
When temperatures are below -15C for a few days, you can choose to keep the water moving in your pipes by running a pencil-thin stream of cold water from a tap in the lowest point of the house e.g. a sink or tub in the basement. Ensure the drain is kept clear of debris to prevent overflowing or flooding. However, if you choose to take this step, you will be charged for the water you use.
One thing we tend to overlook is outside faucets. If the outside faucet is closed, and the water supply valve on the inside is also closed, sub-zero temperatures can cause the water in between the two valves to freeze and expand, which causes the pipe to burst. Best way to prevent this is to close the water supply valve inside and then open the outside faucet to allow any water to drain out, then keep the outside faucet open through the winter.

The City of Toronto has more suggestions on how to prevent pipes from freezing. Just visit toronto.ca/frozenpipes, where you’ll find all the details, plus a video to guide you through some of them.

Towards Faster Decisions

In our last post, we described how one of the provisions in Ontario Bill 23 would deny residents the right to appeal municipal decisions. The government seems to feel residents’ appeals cause unnecessary delays in getting development proposals approved.

If you would like to read the full text of the Bill, click here.

In this post, we’d like to examine some of the potential sources of the delays in that approval process and some ideas on how the approval process can be shortened.

Large Variances

Consider this, we regularly see developers who ask for variances that are so large they go so far beyond what normal people would consider reasonable. And, in the past, we were seeing the Committee of Adjustment approving many of these. In fact, in 2016, the Etobicoke/York COA panel approved EVERY application to sever a property in Long Branch. Some of these were appealed to the OMB by residents. EVERY OMB decision that year was in favour of the severance.

Given this history, it shouldn’t be hard to see why Long Branch residents are so cynical about our Committee of Adjustment.

The City of Toronto approved changes to its Official Plan in 2018 to clarify policies on how development proposals should fit with neighbourhood character. That year, we also saw approval of the Long Branch Neighbourhood Character Guidelines, which provided clarity on the character elements in Long Branch.

However, while these regulatory changes made standards clearer, they did not stop some developers from making unrealistic demands in their applications.

So, part of the blame for the number of appeals has to be placed on developers – at least those who ask for huge variances. More reasonable variance requests would incite less opposition and likely result in fewer appeals.

When is a Minor Variance No Longer Minor?

Probably the term that generates the most debate in development applications and – especially appeals – is the term “minor variance”. The way The Planning Act defines it, ALL variances are minor by definition, regardless of their magnitude. However, The Planning Act also permits municipalities to provide clearer definitions on when a minor variance becomes too large to be considered minor. To date, no municipality in Ontario has adopted clear guidelines on minor variances.

One of the reasons “minor variance” is so contentious is that lawyers argue about the impact of a variance on neighbouring properties or a neighbourhood. Impact is subjective and therefore subject to interpretation and debate. A numeric standard for minor vs. major would be considerably less subject to interpretation because it is objective.

Developers point to restrictive bylaws as a major regulatory hurdle they face. And there is a degree of truth in that in some areas. But the bylaws are created by legislators, not residents. Only legislators have the power to change bylaws.

So, our legislators have contributed to the volume of appeals by allowing vague standards to be used in evaluating development proposals.

The Hearing Process

A typical COA hearing for an application takes about a half hour. The Applicant, or his/her representative has 5 minutes to outline the merits of the proposal. If anyone objects, they are given 5 minutes each to describe their concerns. Similarly, anyone supporting the proposal has 5 minutes to explain why. The hearing wraps up with the Applicant addressing any resident concerns and re-capping the merits of the proposal.

When we look below at the time involved in an appeal, perhaps the Committee of Adjustment is not the process best suited to adjudicating more complex planning applications. Perhaps we need some other form of primary adjudication that allows more time to examine applications in greater detail.

The Appeal Process

Short of a judicial review, the only recourse for participants in the COA process is to appeal to TLAB – the Toronto Local Appeal Body.

By comparison, when a COA decision is appealed to TLAB, there is no typical timeframe. We have seen hearings go as little as two days up to 14 days. So, why are these hearings so long?

The Applicant is first to present their case. Usually the first witness is an Expert Planning Witness who describes how the proposal meets the requirements of the Official Plan and/or the Bylaws, and how the proposal conforms to Provincial policies. It is not uncommon to see a Planning witness require a full day to present his/her testimony. After the Planner has testified, he or she is then cross-examined by the Residents (or representative) and by the City’s Legal Staff, when the City decides to be a Party to the hearing. The Applicant’s lawyer then is allowed to re-direct – to rebut some of the issues that might have come up during cross-examination. Cross-examination and re-direct can easily represent another full day.

The process is similar if an arborist is involved, though usually this will require a day to complete testimony, cross-examination and re-direct.

Depending on whether the City has taken on Party status, the above process repeats with Residents – and the City – presenting their cases. The biggest difference between the City’s case presentation and the Residents’ is that the Residents are not very likely to have an expert witness and more likely to have several neighbours who wish to have their concerns heard.

The longest TLAB case we participated in was 14 days and, in that case, the Applicant introduced a revised plan in mid-hearing, so the whole case was effectively heard twice.

When a case reaches TLAB, it becomes very high stakes because appealing a TLAB decision may require going to the courts. So there is a tendency to pull out all the stops on evidence to ensure all possible arguments are incorporated into the case. If the Applicant introduces 10 points about why their proposal should be allowed, then there are 10 points to probe on cross-examination.

So how can appeals be made shorter?

Some TLAB adjudicators tend to be more interested in allowing all Parties to present all their arguments than in limiting debate so they can conduct a hearing which all Parties would consider fair and impartial. Some of the arguments are complex (e.g., what is a minor variance), making it a challenge to limit debate.

One factor in the protracted length of TLAB hearings is that TLAB usually one schedules two or three days for hearings at the outset. By the time the adjudicator realizes this is insufficient, the adjudicator has to scramble to schedule additional hearing days so that he or she can find dates when all the Parties can be in the same room at the same time. This can add weeks, if not months to the hearing process. It’s frustrating for everyone involved: lawyers, TLAB staff, residents, and planners – not to mention the Applicants trying to get their proposal approved.

It might be better if TLAB scheduled 5 hearing days, for example, to book availability for all the lawyers and witnesses. If the hearing can be wrapped up in less than 5 days, it’s more likely everyone will see some of their time freed up and therefore a bonus. (Usually the lawyers don’t have any trouble filling their calendars).

TLAB adjudicators have the power to limit the time available for arguments. This is something judges in the court system also do. In the court system, a judge will ask each party how much time they think they need to present their cases and then negotiate a timeframe that allows for the hearing to be conducted expeditiously. A lawyer might be warned, during the presentation of their case, that they are approaching the agreed-upon time limit.

However, we have seen some lawyers who, despite a TLAB panel member suggesting a time limit, have exceeded their allotted time and then argued for the rest of the of the hearing to be expedited on behalf of their clients.

Perhaps a fixed fee for legal representation should be imposed by TLAB, as opposed to the customary hourly billing system most lawyers use. It could be amazing how much faster cases get presented when there is a cap on how much the lawyers can charge their clients. And a cap on legal fees would result in more predictability on the financial outcome for developers.

Parties to Appeals

Bill 23 appears to be aimed at reducing the number of Parties to appeals at TLAB/LPAT, on the assumption that, with fewer parties involved, appeal hearings will be shorter.

While there is truth in this, it means that not all stakeholders in a development proposal are represented at an appeal. When the City is involved in an appeal as a Party, the City’s legal staff represent the interests of the City – not the residents. We have, in the past, seen cases where the City has cut a deal with a developer that the residents have not agreed with. And the reason for that is that, when residents do not have Party status, they are excluded from any negotiations that might avoid the need for a formal appeal.

In our experience, we estimate the cost of a TLAB appeal for a developer can approach $100,000 in legal fees and expert witness fees. Homeowners are at a disadvantage on two counts: 1.) this is beyond the means of most homeowners in the City and 2.) legal fees are not tax-deductible for residents, as they are for developers (as a cost of doing business). So the net effect is to discourage opposition by imposing high costs on participation.

We would like to see the government allow residents to enjoy the same tax deductibility for legal fees that developers now enjoy. It would at least represent equal treatment for residents and developers.

The LBNA has been able to successfully advocate for Long Branch residents at TLAB without having to resort to hiring lawyers. It has been a team of dedicated volunteers with no formal legal training. For residents, this is a valuable service that a resident’s association can provide its members who lack the knowledge or training to work through the bureaucracy and procedures involved. Residents should not have further barriers to appeal by denying them – or resident’s association advocates – the right to be able to appeal.

And the LBNA’s track record on appeals should stand out as a signal that other things in the development approval process are broken. Without our success, these would not be known.

NIMBYism

We should not overlook NIMBYism. There definitely are people out there for whom any kind of development is bad. However, we believe they are a small minority, and extreme NIMBYism is as bad as aggressive overdevelopment.

The majority of residents are prepared to accept changes in their neighbourhoods. But they want to be treated fairly by the process. They want to have a voice in what is done. And the majority accept that some compromises need to be made to bring improvements to their neighbourhoods.

So perhaps what is needed is, when a COA decision is appealed, the first step should be some form of arbitration or negotiation between ALL parties – not just the Applicant, the Municipality and “specified persons”. Negotiation by litigation is neither simple, effective nor efficient. We think most reputable lawyers would tell you the same thing.

At the end of the day, one of the reasons residents protest development so arduously is that they are not consulted to be able to have input on something that will impact them. We’ve heard some developers say, “It’s my property. I can do what I want with it.” That is an attitude that invites conflict, and it makes the assumption that residents have nothing to offer in the way of opinions or flexibility without giving the courtesy of asking for their input. We’ve heard many instances in which the first time a resident hears about a development on their street is when they receive the COA Notice of Hearing.

Negotiation requires ALL parties to show flexibility. It will not meet what either party wants at the outset, but it ends up with something all parties can at least live with.

“A Government for the People”

In his Speech from the Throne on July 12, 2018, our current Premier described “A Government for the People”, stating, “… that every seat in this chamber ultimately belongs to the Ontarians who sent you here. The privilege of democracy is to temporarily occupy these seats on the people’s behalf. And in so doing, to always be mindful that the power exercised here must always be — and only be — exercised with the people’s best interest in mind.“

What You Can Do

Taking away a resident’s right to appeal a decision is not a fair way to treat taxpayers and arguably demonstrates that elements of this legislation have been hastily put together without thinking through to what the true systemic issues are in getting more homes built faster.

If you share these concerns about Bill 23, please let our MPP, Christine Hogarth, know not only how you feel, but how strongly you feel about it. The LBNA is circulating a template for a letter to Christine Hogarth, but you are also welcome to put your feelings into your own word.

Bill 23 has gone through 2^nd reading within two weeks and went for public deputations November 16 and 17^th. If you don’t speak up, the Bill will be in place before the end of the year and retroactive to October 2

Beware Bill 23

On October 25, 2022, the government of Ontario introduced Bill 23, the More Homes Built Faster Act, 2022 which proposes sweeping changes to the land use approvals system in the province.

We understand the need to create more housing to accommodate population growth in Ontario, but there are some proposed amendments in Bill 23 that are cause for concern.

You have seen in this blog that the LBNA has managed to win a significant number of TLAB appeals of COA decisions on behalf of Long Branch residents. Well, provisions in Bill 23 would strip away the right to appeal COA decisions.

Currently, Section 44, subsection 12 of The Planning Act governs the appeal process, and it states:

“(12) The applicant, the Minister or any other person or public body who has an interest in the matter may within 20 days of the making of the decision appeal to the Municipal Board against the decision of the committee by filing with the secretary-treasurer of the committee a notice of appeal setting out the objection to the decision and the reasons in support of the objection…”

Previously, the “any other person” meant anyone who had submitted oral and/or written objections to a development proposal to the COA.

Bill 23 proposes to change this clause to “a specified person”, in place of “any other person”.

A casual reader of the proposed Bill 23 might not see the magnitude of what is being proposed here. The government still seems to be allowing persons to be able to appeal.

But take a look at how Bill 23 defines “specified person”

This looks more like organizations, not people.

We understand the need to add to Ontario’s housing stock to accommodate population growth,. And the provincial government argues that Bill 23 removes obstacles to fast-paced construction of new homes, including the approval process for developments.

We agree that eliminating unnecessary red tape is a good way to expedite construction of development projects. But we do NOT agree that taking away residents’ rights to appeal COA decisions is an appropriate way to cut red tape.

If you talk to most residents in Long Branch, you’ll find we’re in favour of seeing improvements to the neighbourhood’s housing stock – some of which dates back to the 1920s to 1940s, when the neighbourhood was more like a cottage community.

I think we all would agree that one of the signs of a fair process is the ability to debate the decision and to appeal it if we disagree.

But the proposed amendments in Bill 23 seem to suggest that the appeal process is the problem. We disagree with this.

What You Can Do

If you share these concerns about Bill 12, please let our MPP, Christine Hogarth, know not only how you feel, but how strongly you feel about it. The LBNA is circulating a template for a letter to Christine Hogarth, but you are also welcome to put your feelings into your own word.

Bill 23 went through 2^nd reading within two weeks and went for public deputations November 16 and 17^th, The Ministry also took written comments up to Nov 17^th. If you don’t speak up, the Bill will be in place before the end of the year and retroactive to October 25^th, 2022.