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March 16, 1998

To:North York Community Council

From:George M. Dixon

City Solicitor, North York

Subject:Requirements of Statutory Powers Procedure Act, Planning Act and Toronto=s Interim Procedural By-Law

Purpose:

As directed, to review the Interim Procedural By-law as it relates to the requirements of the Statutory Powers Procedure Act and the Planning Act.

Funding Sources, Financial Implications and Impact Statement:

N/A

Recommendations:

It is recommended that this report be received for information.

Council Reference / Background / History:

At its first meeting held January 21, 1998, North York Community Council was briefed, among other matters, on the functions assigned to it by the Interim Procedural By-law and on the requirements of that by-law. One of the significant functions assigned to the Community Councils is the holding of public meetings for Toronto City Council on local planning matters. At the conclusion of the briefing session, a motion was moved by Councillor Moscoe and carried that the City Solicitor A review the Procedural By-law as it relates to the requirements of the Statutory Powers Procedure Act and the Planning Act.@

Comments and/or Discussion and/or Justification:

In the many pieces of legislation governing municipalities and their activities, there are a variety of situations where the council or another municipal body is required to hold a public meeting or to conduct a public hearing as part of its decision making process. In general terms the law divides decisions into two broad functional categories, legislative and judicial, based on the nature of the decision the council or other body will make.

For judicial functions, which generally result in decisions which adjudicate upon a person=s legal rights or obligations, there has always been a common-law obligation to Ahear@ any person whose interests will be decided by the decision. The legal standards for conducting judicial Ahearings@ require quite formal, court-like procedures. For example, when the OMB conducts hearings on Official Plan and zoning appeals, it is carrying out a judicial function which frequently results in hearings measured in days or weeks and sometimes even months. Where hearings of this type do not meet the required legal standard, the decision is subject to being attacked in the Courts and set aside.

By contrast, for legislative functions there is no common-law obligation to hear from those who may be interested in the matter under consideration. AMeetings@ or Ahearings@, if there are required at all in connection with a legislative function, are required by statute law. For example, when a municipal council holds a public meeting on a planning proposal, the meeting is part of council=s legislative process. The public meeting is not a formal, court-like proceeding that lasts days or weeks.

This distinction between making laws and applying laws in adjudicating an individual Acase@ is a fundamental part of the context for considering the provisions of the Statutory Powers Procedure Act (the ASPPA@), the Planning Act, and the Interim Procedural By-law.

Under the authority of subsection 105(1) of the Municipal Act, Toronto City Council has assigned to the Community Councils certain responsibilities to hold public meetings required by the Planning Act. Subsection 105(4) of the Municipal Act provides in substance that if the SPPA would apply to City Council if it held a public meeting, then the SPPA applies to any committee to which City Council assigns this function.

The SPPA is essentially a statutory codification of common-law procedural requirements for tribuals, including municipal bodies, conducting judicial functions. These are the requirements which apply to tribunals such as the OMB and the Liquor Licence Board of Ontario.

Clause (h) of subsection 3(2) of the SPPA provides that the SPPA... Adoes not apply to a proceeding... of a tribunal empowered to make regulations, rules or by-laws insofar as its power to make regulations, rules or by-laws is concerned@. Thus, the SPPA does not apply to a municipal council in the course of passing a zoning by-law although it would apply to the same council if conducting a hearing into whether a business license should be revoked under the provisions of a licensing by-law.

Although the SPPA does not apply to by-laws passed under the Planning Act, the Planning Act does require that a municipality A...hold at least one public meeting...@ before doing such acts as passing a zoning by-law or adopting an Official Plan and that A... any person who attends the meeting shall be afforded an opportunity to make representations...@ in respect of the proposal under consideration. The language in the Planning Act has been deliberately chosen to make clear that the public meeting is part of a municipal legislative process and not a court-like proceeding. Section 61 of the Planning Act clearly reinforces this by providing as follows:

AWhere, in passing a by-law under this Act, a council is required by this Act, by the provisions of an official plan or otherwise by law, to afford any person an opportunity to make representation in respect of the subject-matter of the by-law, the council shall afford such person a fair opportunity to make representation but throughout the course of passing the by-law the council shall be deemed to be performing a legislative and not a judicial function@.

While there is not an obligation to conduct a court-like hearing at public meetings on planning items, there is a statutory obligation to afford A... a fair opportunity to make representation...@ For this reason, some provisions of City Council=s Interim Procedure By-law must yield to this obligation when that is necessary for a fair opportunity for making representations. The following provisions of the by-law are ones which may have to yield to the Planning Act requirements for public meetings:

Procedural By-law Section Number	Summary of Section	Planning Act Requirement
S.125	material not provided to Committee members prior to meeting is not to be considered without majority vote to consider it	written representations must be received at public meeting whether or not submitted in advance
S.130(2) 130(3) 130(4)	person wishing to make oral submissions must submit signed outline of submissions in advance of agenda closing unless requirement waived by majority vote	oral representations must be heard at public meeting whether or not outline submitted in advance
S.130(7)	unless otherwise decided submissions on behalf of an organization or group must be made by a single representative only	any person Awho attends the meeting@ must be afforded Aa fair opportunity to make representations@
S.130(7)	unless otherwise decided, five minute limit on any person=s submissions	in most situations, uniform application of the five minute limit will be the appropriate way to afford all interested persons a fair opportunity to make representations; however, if requested council should consider reasonable time extensions in unusual situations such as an unusually complex proposal

In addition to public meetings under the Planning Act, there are other similar situations which decided cases have held to involve legislative functions and not judicial ones, among these the obligation to hear representations on proposed road closings and sign by-laws. There are clearly also functions where the decision being made is a judicial one to which the SPPA does apply. Licensing hearings are one municipal example.

Conclusions:

As discussed, the Statutory Powers Procedure Act governs proceedings where a municipality is obliged to provide a court-like hearing in carrying out a judicial or adjudicative function. The Statutory Powers Procedure Act does not govern the public meetings which municipal councils must hold under the Planning Act. Nevertheless, for public meetings under the Planning Act, the council is obliged to provide a fair opportunity to interested persons to make representations. The obligation to do so will require that certain provisions of the Interim Procedure Bylaw which might otherwise apply must yield to that statutory obligation.

Contact Name:

George M. Dixon

City Solicitor, North York

395-7055

George@city.noth-york.on.ca

George M. Dixon

City Solicitor, North York

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