Vital Services in Rental Residential Properties

in the City of Toronto.

The Urban Environment and Development Committee recommends that Council:

(A)establish a working group comprised of representatives of Municipal Standards, Public Health, other staff members as necessary, and relevant utility/fuel suppliers, to establish policies with respect to discontinuing service/supply;

(B)request the Commissioner of Urban Planning and Development Services to:

(1)monitor these policies in action, and report back to the Urban Environment and Development Committee on the success of the working group at the end of the current heating season (September 1998 to June 1999);

(2)report to the Urban Environment and Development Committee incidents where the working group was unable to resolve an issue and, as a result, a vital service was discontinued; and

(3)prepare an information sheet with respect to the new vital services process which will provide pertinent information, staff contacts, and emergency telephone numbers for distribution to staff and Members of Council;

(C)request the Energy Efficiency Office of the City of Toronto to assist staff and provide input with regard to vital services issues; and

(D)request Toronto Hydro to consider adoption of a program of debt recovery such that tenants are not put at risk.

The Urban Environment and Development Committee reports, for the information of Council, having:

(1)requested the City Solicitor, in consultation with the Commissioner of Urban Planning and Development Services, to draft a Vital Services By-law which:

(a)references the mechanisms to ensure continuing vital services, and full cost recovery of municipal expenses incurred in so doing; and

(b)includes a requirement that utility service providers give 30 days' notice to the City prior to service discontinuation for non-payment of account;

(2)requested the City Solicitor to submit such draft Vital Services By-law, together with a report thereon, to Council for consideration at its meeting scheduled to be held on October 28, 1998;

(3)requested the Chief Financial Officer and Treasurer to submit a report directly to Council for consideration with this matter on October 28, 1998, on whether the provision of vital services by the City would be fully cost-recoverable;

(4)requested the Commissioner of Urban Planning and Development Services and the City Solicitor to discuss this matter with representatives of the Metropolitan Federation of Tenants, and to submit a report thereon, if necessary, directly to Council for consideration with this matter on October 28, 1998.

The Urban Environment and Development Committee submits the following report (August24, 1998) from Dr. Sheela V. Basrur, Medical Officer of Health:

Purpose:

To address the possible health impacts to Toronto's residents should vital services be discontinued.

Recommendations:

(1)That this report be received for information; and

(2)that the City Solicitor be requested to review the feasibility and conditions under which the Health Protection and Promotion Act, c.H.7, R.S.O. 1990 could be applied in situations involving the discontinuation of vital services.

Background:

At the July 13, 1998 meeting of the Urban Environment and Development Committee, the Medical Officer of Health was requested to consult with agencies that serve tenants and persons living in poverty and to submit a report on the potential health impacts of refusing to intervene in the cut-off of vital services to the September 8, 1998 meeting of the committee.

Discussion:

Public Health staff invited representatives from agencies and organizations that serve tenants and persons living in poverty to a meeting on August 13, 1998 to discuss possible health impacts to residents should the city not intervene to restore cut-off vital services. Representatives from eight of the twelve agencies invited attended the meeting (see Appendix A for list of agencies).

The representatives expressed grave concerns for the health of tenants should the city not intervene when vital services are turned off. They identified health impacts to tenants, particularly "at risk" groups of individuals such as the immune compromised, newborn and the elderly. They discussed not only physical health impacts but also threats to the emotional and psychological health of the tenants that could put severe pressure on their ability to cope with daily demands and stresses. The group had further concerns that the loss of some vital services could impact on the ability of individuals to arrive at work on time or in an unacceptable hygienic state, which has lead in some cases to dismissal. This loss of work can have far reaching impacts on the individual or family setting.

The representatives felt the process as described through the Tenant Protection Act was insufficient to protect tenants during an emergency. It was their understanding the Provincial Tribunal that was being set up to respond to tenants complaints was not going to respond to emergency situations and issue immediate orders. Instead they are going to set up a hearing to hear both sides of a complaint and this process could take up to seven days before decision was reached. It was their position this was far too long for tenants to be without vital services. It was their opinion that the money necessary for the City to set up a process similar to the former City of Toronto's Urgent Hazard By-law was minimal compared to the taxes received from these same tenants. These representatives were advised to direct their concerns to this committee through letters and deputations.

When electricity is discontinued, lack of refrigeration can lead to food spoilage and food contamination with an increase in food poisonings. It could impact on the safety of baby foods and medicines also requiring refrigeration. Concerns were raised by the group that the poor would loose food due to spoilage in freezers and refrigerators and their all ready low nutritional status would be further compromised. Many individuals live week to week and the loss of all their food could be devastating. Loss of electric air-conditioning during extreme heat waves can lead to dehydration, heat stroke or death especially for the elderly, the young, those with pre-existing chronic illness, and those on certain medications, e.g. for mental illness. Concerns were also raised for the elderly and physically disabled should elevator services be unavailable.

With the loss of water and sewage disposal, there is an increased risk for person-to-person transmission of gastro-enteritis. Lack of drinking water can also lead to dehydration, a condition that can have serious negative impacts to the elderly, the young and those with chronic illnesses. Many would not have the funds to purchase bottled water.

When gas or oil is turned off the loss of heat, in extreme conditions, can lead to hypothermia, which places infants, seniors and those who are ill or on certain medications at the greatest health risk. Concern was raised also to the threat of carbon monoxide poisoning and fires as individuals attempt to heat their rooms through any means available. Deaths have occurred when propane barbecues and other outdoor heating appliances have been used indoors without proper ventilation or fires have been set in unsafe and improper locations.

It should be added that opinions vary as to the feasibility of using the Health Protection and Promotion Act, c.H.7, R.S.O. 1990 to reduce the potential health hazards associated with loss of vital services. The feasibility of using the Act in these circumstances, the conditions under which it would be applied and the actions that could be taken under the Act to reduce the potential health hazards described above, should be reviewed by the City Solicitor before a decision is made to proceed in this direction.

Conclusion:

The health of the residents of Toronto could be compromised if vital services are turned off. I have reviewed the August 24, 1998 report of the Commissioner, Urban Planning and Development Services to this Committee and support the idea of a working group to review anticipated service cut-offs before they occur. I also have concerns about the feasibility of using the Health Protection and Promotion Act as a remedy in these circumstances and recommend that its applicability be reviewed by the City Solicitor.

Contact Name:

Mr. Dave Harrison, Manager , Environmental Health Services, 392-7685, Fax: 392-1482.

_______

Appendix A

Agencies Notified of Focus Group Meeting

East Toronto Community Legal Services *

Shout Clinic *

Toronto Shelter, Housing and Support *

FMTA *

Kensington Bellwoods Community Legal Services *

West Scarborough Community Legal Services *

Parkdale Activity and Recreation Centre *

SA Max Meighen Centre *

Woodgreen

Dixon Hall

Federation of Metro Tenants

Fred Victor Mission

Centre for Equality

COTA

Alternative Housing Subcommittee

Coalition of Metro Housing Centres

* Agencies that attended the group meeting

The Urban Environment and Development Committee also submits the following report (September 3, 1998) from the City Solicitor:

Purpose:

To provide assistance to the Committee with respect to the feasibility of relying on the Health Protection and Promotion Act to regulate vital services.

Funding Sources, Financial Implications and Impact Statement:

None.

Recommendation:

That this report be received for information.

Council Reference/Background/History:

At its meeting held on September 8, 1998, the Urban Environment and Development Committee requested the City Solicitor, in consultation with the Commissioner of Urban Planning and Development Services, to submit a report on Recommendation (2) embodied in the report dated August 24, 1998, from the Medical Officer of Health which recommended that the City Solicitor review the feasibility and conditions under which the Health Protection and Promotion Act, (theAct) could be applied in situations involving the discontinuation of vital services. The Committee also requested the City Solicitor to submit a report on the timing implications for tenants who use the provincial Tribunal process for prosecution/enforcement of vital services issues.

Comments and/or Discussion and/or Justification:

The purpose of the Health Protection and Promotion Act is to "provide for the organization and delivery of public health programs and services, the prevention of the spread of disease and the promotion and protection of the health of the people of Ontario". Mandatory Guidelines published by the Ministry of Health pursuant to the Act establish standards and set out the minimum requirements for fundamental public health programs and services targeted at the prevention of disease, health promotion and health protection. Like the Act, the Guidelines have a community focus. For instance, one of the stated goals of the Health Hazard Investigation standard is "to ensure community health protection and continued public health services delivery in the event of a health hazard".

In her report the Medical Officer of Health stated that "opinions vary as to the feasibility of using the Act to reduce the potential health hazards associated with loss of vital services". The term "health hazard" is defined in the Act as follows:

"health hazard" means,

(a)a condition of a premises,

(b)a substance, thing, plant or animal other than man, or

(c)a solid, liquid, gas or combination of any of them,

that has or that is likely to have an adverse effect on the health of any person".

The Medical Officer of Health has a duty, prescribed by the Act, to inspect or cause the inspection of a health unit under his or her jurisdiction for the purpose of preventing, eliminating and decreasing the effects of health hazards in the health unit. The City of Toronto is designated as a health unit in the regulations made under the Act and is comprised of the geographic area of the former Borough of East York and the Cities of Etobicoke, North York, Scarborough, Toronto and York. If the Medical Officer of Health is of the opinion that a health hazard exists, he or she may issue an Order to decrease the effect of or to eliminate the health hazard. An Order issued under the Act may include such actions as:

(a)requiring the vacating of premises;

(b)requiring the removal of the health hazard;

(c)requiring the doing of work specified in the Order in, on or about the premises specified in the Order; or

(d)requiring the destruction of the matter or thing specified in the Order.

The expenses incurred by a board of health in respect of a health hazard may be recovered by the board by way of court action. Alternatively, the amount owing to the board may be entered in the collector's roll and collected in the same manner as municipal real property taxes. The amount collected shall then be paid over to the board of health.

In 1994 an application was made to the Ontario Divisional Court seeking judicial review of the term "health hazard". In that case the Court dismissed the application and held that "... the purpose and intent of the Act is to ensure community health protection of the people of Ontario".

As previously advised by the Commissioner, Urban Planning and Development Services, specific provincial legislation has been enacted which clearly enables municipalities to regulate matters relating to municipal maintenance standards and vital services. In the face of express provincial legislation delegating authority to municipalities to regulate these two areas, and looking at the general tendency of the courts, it is unlikely that the City could rely on the health hazard provisions of the Health Protection and Promotion Act as a mechanism to regulate the discontinuation of vital services.

I was also asked to report on the "timing implications for tenants who use the Provincial Tribunal process for prosecution/enforcement of vital services issues". The Ontario Rental Housing Tribunal (the "Tribunal") has provided me with its Scheduling Hearing Standards from its policy manual. This document indicates that there is no fee for a hearing regarding the landlord's having withheld or interfered with the supply of vital services, and that the tribunal hearing should take place approximately 11 days from the date the tenant applies to the tribunal for relief.

Conclusions:

The Province has delegated extensive authority to municipalities to regulate municipal maintenance standards and vital services; however this authority does not exist in the Health Protection and Promotion Act. Therefore it is unlikely that the Act can be used to regulate municipal maintenance standards or vital services. The Health Protection and Promotion Act has, as its focus, community health protection and promotion. Any attempt to rely on the "health hazard" provisions of that Act should be made on a case by case basis after consideration has been given to both the context of the situation and the scope and intent of the Act.

Contact Name:

Ms. Jane Speakman, Legal Services, 392-1563.

The Urban Environment and Development Committee also submits the following report (August 24, 1998) from the Commissioner of Urban Planning and Development Services:

Purpose:

Report submitted in response to a request from Council for information on the anticipated actual financial loss from the provision of vital services when necessary under the current legislation; and the ability of Toronto Hydro and other essential services to provide the continuation of services under the same conditions as were previously applied to the "Urgent Hazard Program" by the former City of Toronto (under the former City of Toronto Act).

Funding Sources, Financial Implications and Impact Statement:

Enacting a Vital Service By-law would require reinstating funding of $120,000.00 per year. An amount of $60,000.00 was cut from the 1998 budget to reflect mid-year cancellation of the program as approved in the budget process. In addition, funds up to $900,000.00 per year in the peak years could be required for payment of utility bills, with no assurance that these funds would be recovered by the City.

The projected funding of $120,000.00 per year for administration of a Vital Services By-law for the entire city is the same amount as expended for the former City of Toronto. It is anticipated that should a Vital Services By-law be deemed necessary, it could be written with associated operational processes and policies that would reduce administrative costs, by having some of the administration carried out by the utility companies, or having them cover a portion of the costs.

It should be noted that the new legislation would continue to allow a municipality to have rents directed to the City until the debt is repaid. This rent collection process would likely be costly to administer.

Recommendation:

That this report be received as information.

Council Reference/Background/History:

The former City of Toronto had an "Urgent Hazards Program" (established under the authority of the City of Toronto Act, 1936) , under which Utility bills which were in arrears to the point where the Utility company planned to cut supply would be paid by the City, and a lien registered against the property. This lien allowed for recovery of the funds as municipal taxes. In the 1998 budget process, funds for administration of this program were not provided. None of the other former municipalities had such programs. While the intent of the program was to protect persons at risk, there is a belief that it had evolved towards acting as a tool of the utility providers for bill collection, or a lever in landlord tenant disputes, rather than its specific intended function.

Following submission of a report to the Urban Environment and Development Committee and considered by Council at its meeting of July 29, 30 and 31, 1998, I was asked to provide information as to the financial impact on the City if a Vital Services By-law were enacted City wide, as a replacement for the Urgent Hazards Program, and on the ability of Toronto Hydro and other essential services to provide continuation of services.

Comments and/or Discussion and/or Justification:

As a Public Utility, Toronto Hydro has by way of Section 31 of the Public Utilities Act the power to establish a lien on a property with outstanding bills. Recovery of the funds by Toronto Hydro under that legislation has the same priority as municipal taxes. Consequently, Toronto Hydro has in that regard for the entire present City of Toronto, power equivalent to that available to the former City of Toronto. Toronto Hydro could establish a bill collection process for themselves which would virtually guarantee recovery of funds, and would not require outlay of funds by the City. This would, of course, require that Toronto Hydro establish a policy that they would use this process as an alternative to cutting of power in those cases where cutting the power would put vulnerable persons at risk.

Only the former City of Toronto had an urgent hazards program. While circumstance may have arisen regarding cutting of utilities in other former municipalities, appropriate mechanisms to deal with these circumstances were generally applied. As previously reported, measures exist in the current (and draft harmonized) Property Standards By-laws to deal with emergency situations. Public Health has, through the Health Protection and Promotion Act, power to require or cause work to be done to alleviate situations where there is a health hazard.

Under current legislation, while it is feasible to pass a Vital Services By-law with similar provisions, the priority for recovery of the outlay would not be with the same priority as municipal taxes. Consequently, there could be no guarantee that the funds would be recovered. In extreme circumstances, this could amount to over $500,000.00 per year. For 1995, 1996 and 1997 the funds expended within the former City of Toronto were $891,481.08, $246,761.07 and $323,823.38. The City Solicitor has reported earlier on what would be required to establish a priority equivalent to taxes.

A review of the peak year of 1995 indicates that funds were expended relating to 376 situations. A number of these were multiple situations at the same property; i.e., in some cases, utility bills were paid several times. About 70 percent. of the situations related to Hydro, 22 percent. to Consumers Gas, and the balance to non-utility items. One payment related to a specific problem property, and was $191,000.00. In subsequent years, one factor in the reduction of funds expended related to agreements regarding administration of the program in that claims from Utilities would not be made in relation to relatively small amounts.

In addition to these amounts, there are administrative costs to the City. These were estimated at $120,000.00 per year. In the 1998 budget process, there was a budget reduction of $60,000.00 (half-year impact) to reflect the approved cancellation of the Urgent Hazards Program.

By provision of early notice of potential problem situations, and through administrative changes by Consumers Gas and Toronto Hydro, the number of urgent, or hazardous situations could be minimized. While discussions with Consumers Gas indicate that they would have some concerns about administrative changes which would provide somewhat earlier notice of problem situations to the City, this could be required under a Vital Services By-law. Consumers Gas has indicated some willingness to take over a portion of any administrative process carried out by the City.

This principal concern in this matter is provision of heat in the winter. In that regard, the Director of Municipal Standards has reviewed the policies of Consumers Gas. That company advises that they do visit each problem property to determine if cutting of the gas supply would put any vulnerable persons at risk.

Initial discussions have also taken place with Toronto Hydro and they did indicate willingness to work together to develop processes to ensure protection of vulnerable persons. They have also advised that processes have been developed in the balance of former municipalities which have worked effectively.

Conclusions:

Staff are of the opinion that a Vital Services By-law should not be enacted. Other mechanisms are available to address the risk to vulnerable persons without incurring the administrative costs and uncertainty of recovery of funds advanced. With respect to Toronto Hydro, legislation exists to allow them essentially the same power of recovery of outstanding bills as under the Urgent Hazards Program. It would be appropriate if they were requested to adopt a program to recover debts in a manner which does not either put vulnerable persons at risk, or require the City to act as guarantor/ bill collector.

The policy of Consumers Gas referenced above does note that "gas service may be discontinued only as a last resort", and the company advises that they would generally not cut service in the winter where vulnerable persons would be at risk.

Prior to considering enacting a Vital Services By-law, should such be deemed necessary, it would be appropriate for a working group comprised of representatives from Municipal Standards, Public Health, and the relevant Utilities or fuel providers to establish policies in respect to discontinuing service/supply, and to monitor these policies in action for at least one year. It is possible to minimize the number of situations under which Emergency Orders either under a Property Standards By-law, or the Health Protection and Promotion Act, would have to be used by ensuring that the Utility companies provide sufficient notice of planned cutoff to allow for proper evaluation of specific situations and provide the opportunity to apply alternative solutions.

Establishing a Vital Services By-law under current legislation could put the City in the position of having significant and potentially non-recoverable funds owing. The former City of Toronto had between 1995 and 1997 paid between $300,000.00 and $900,000.00 per year to cover utility bills. Should the program be extended to cover the new city, this amount would increase. These funds were not included in departmental budgets, but were requested from general revenue to cover emergency situations. In addition, funds of up to $120,000.00 would have to be reinstated in an annual budget to cover administrative costs for the program.

Contact Name:

Mr. Harold Bratten, Director, Municipal Standards, Metro Hall, 22nd Floor, 392-8768.

The Urban Environment and Development Committee also submits the following communication (August 10, 1998) from the City Clerk:

I am enclosing for your information and any attention deemed necessary, Clause No. 3 contained in Report No. 9 of The Urban Environment and Development Committee, headed "Vital Services in Rental Residential Properties in the City of Toronto", which was adopted, without amendment, by the Council of the City of Toronto at its meeting held on July 29, 30 and 31, 1998.

(Clause No. 3 of Report No. 9 of

The Urban Environment and Development Committee, headed

"Vital Services in Rental Residential Properties in the City of Toronto.")

(City Council on July 29, 30and 31, 1998, adopted this Clause, without amendment.)

The Urban Environment and Development Committee reports having requested the CitySolicitor to submit a report directly to Council for its meeting scheduled to be held on July 29, 1998, on the legislative amendments that would be required should Council decide to request the Province of Ontario to enact legislation which would permit the new City of Toronto to adopt a Vital Services Program similar to that conducted by the former City of Toronto under its special legislation.

The Urban Environment and Development Committee reports, for the information of Council, having:

(1)deferred consideration of the following reports and communication to its next meeting, scheduled to be held on September8, 1998, for the hearing of deputations;

(2)requested the Commissioner of Urban Planning and Development Services, in consultation with the Executive Director and Chief Building Official, to submit a report to the September8, 1998 meeting of the Urban Environment and Development Committee regarding:

(a)the anticipated actual financial loss resulting from the provision of vital services when necessary under the current legislation; and

(b)the ability of Toronto Hydro and other essential services to provide the continuation of services under the same conditions as were previously applied to the "UrgentHazard Program" by the former City of Toronto (under the former City of Toronto Act);

(3)requested the Medical Officer of Health to consult with agencies which serve tenants and persons living in poverty, and submit a report to the September 8, 1998 meeting of the Urban Environment and Development Committee on the probable health impacts of refusing to intervene in the cut-off of vital services;

(4)directed that a copy of the following reports and communication be referred to the CouncilStrategy Committee for People Without Homes, with a request that the Committee submit its comments thereon to the September 8, 1998 meeting of the Urban Environment and Development Committee.

The Urban Environment and Development Committee submits the following report (June10, 1998) from the Commissioner of Urban Planning and Development Services:

Purpose:

Report submitted for information, to address issues of enforcement regarding vital services where a landlord who is responsible for the payment of utility bills in a rental residential property defaults on that obligation.

Funding Sources, Financial Implications and Impact Statement:

In the event that Council chooses not to adopt the recommendation below, and instead chooses to enact a vital services by-law, then that action would require the reversal of Council's previous budgetary decision in order now to commit funds to the staffing and administration of a vital services program in the amount of $60,000.00 for 1998 and $120,000.00 annualized thereafter.

In addition, historically the former City of Toronto has committed funds ranging from $500,000.00 to $1,000,000.00 annualized to the restoration of utilities in rental residential properties. These funds were recoverable as being collectible through the municipal realty tax process, as provided for by the City of Toronto Act. Any future funds to be expended by the City to restore such utilities under a Vital Services By-law would be at great risk of being unrecoverable, given that the enabling legislation does not provide for such funds to be placed on the tax rolls. The current legislation provides for a lien to be placed against the property and/or the City to have tenants pay rents directly to the City.

Recommendation:

It is recommended that the City of Toronto not enact a vital services by-law under authority of the Tenant Protection Act, given the expected high cost of its administration and the potential for financial risk to the City.

Background/History:

Existing municipal standards regulations throughout the new City provide for a range of options in addressing the issue of a landlord's obligation to maintain vital services in rental residential properties.

Current regulations which exist under authority of the Planning Act set out an owner's responsibility to ensure that vital services such as utilities are maintained for residential tenants. A breach of that obligation is an enforceable offence. All City of Toronto districts, with the exception of the former City of Toronto, have municipal standards regulations enforced under the authority of the PlanningAct.

Current regulations within the former City of Toronto, under authority of the City of Toronto Act, set out owner obligations similar to the above but also provide authority for the City to restore utility services where an "urgent hazard" is considered to exist and to re-coup such monies by placing expended amounts directly on the tax roll to be collected in a like manner as municipal taxes. This program has been administratively costly to run and has been targeted to be discontinued as part of the budget process.

At the present time a staff group is working toward drafting harmonized municipal maintenance standards that will be applicable to the entire new City. The enabling legislation for such new regulations will come under the authority of the Building Code Act. On November 28, 1997, Royal Assent was given to the Tenant Protection Act which serves to consolidate, replace and supersede numerous existing acts which deal with tenant issues, including the enactment of municipal maintenance standards and by-laws regarding vital services. The Tenant Protection Act is proclaimed as effective and in force June 17, 1998.

Comments:

The Tenant Protection Act amends the Building Code Act which becomes the new enabling legislation for municipal maintenance standards. The Tenant Protection Act also incorporates the former provisions of the Municipal Amendment Act (Vital Services) that allows a municipality to choose to enact a by-law to authorize the restoration of utilities where a landlord defaults on payment of utility bills to rental residential properties. This authority requires that a lien be placed on the title of the property, and allows the municipality to have tenants direct rents to the City until the debt is repaid. This process effectively would appear to make the municipality a quasi-landlord in ensuring that outstanding rents are paid. In addition, there is no reasonable guarantee that monies expended by the municipality to restore utilities would, in fact, ever be recouped. This process would likely serve to be very labour intensive and costly to run, which may be the reason that to date only three Ontario municipalities have previously chosen to enact a municipal vital services by-law.

Information obtained from the City of Ottawa, which currently administers a vital services by-law, indicates that such a program is very time-consuming, administrative and costly in terms of staff time and resources. It is uncertain whether, once the amalgamation of Ottawa-area municipalities occurs, a vital services program will be maintained given that the municipalities around the existing City of Ottawa do not administer such a program. As is the case in most Ontario cities, the municipalities surrounding Ottawa have not chosen to pursue a local vital services by-law.

The Tenant Protection Act sets up a Provincial Tribunal process to address tenant concerns where a municipality has no maintenance standards by-law, and also to enforce vital services provisions that are directly contained in the Act requiring a landlord to ensure that vital services such as utilities are provided. Ministry staff have confirmed that, while a fee is chargeable under the Tenant Protection Act to municipalities where the Provincial Tribunal enforces maintenance standards, no fee is chargeable to a municipality where the Provincial Tribunal enforces vital services. The Act includes Provincial responsibility to directly receive tenant complaints regarding vital services matters and enforce resulting Provincial orders through the courts. This new Act places the onus of evidence collection and complaint reporting directly into the hands of affected tenants, who would then bring their vital services issues forward to the Provincial Tribunal for prosecution/enforcement.

Conclusions:

Given that the current City of Toronto budget process is seeking to discontinue the former City of Toronto's "urgent hazard" program due to the cost of administering it, City Council may similarly want to consider not undertaking an even more bureaucratic and financially risky process in the restoration of utility services under a vital services by-law. It is suggested that City Council seek to rely instead on general enforcement of municipal standards regulations through prosecution by the City as necessary, as well as procedures which are currently being put into place under the TenantProtection Act for tenants to seek prosecution activity through the Provincial Tribunal specifically regarding vital services.

Contact Name:

Ms. Judi McBurney, Technical Advisor, Buildings Division, Toronto City Hall, 392-7963, Fax:392-0677.

The Urban Environment and Development Committee also submits the following report (June9, 1998) from the City Solicitor:

Purpose:

The purpose of this report is to review the potential implications of the motion set out below, to provide information with respect to the authority of City Council to enact a vital services by-law, and to explain the limitations on that authority.

Funding Sources, Financial Implications and Impact Statement:

There will be costs associated with the implementation of programs pursuant to a "vital services by-law", should Council choose to enact such a by-law. In the former City of Toronto, a similar program was in place pursuant to the former City's special legislation. The Budget Committee has recommended discontinuing that program.

Recommendation:

It is recommended that this report be received for information.

Council Reference/Background/History:

At its meeting of May 13 and 14, 1998, City Council referred the following motion to the Urban Environment and Development Committee for its consideration:

WHEREAS the Budget Committee accepted the proposal of the Commissioner of Urban Planning and Development Services to discontinue the program previously delivered only in the former City of Toronto, which paid on behalf of property owners and collected utility payments in like manner as realty property taxes when such utilities had been discontinued to tenanted properties, under the authority of Section6 of the City of Toronto Act, 1936 (which applied only in the former City of Toronto); and

WHEREAS it is anticipated that the legislative authority for this program will be repealed or superseded by the Provincial Government in the spring of 1998; and

WHEREAS it is desirable to ensure regulations are in place that are applicable to the whole of the new City of Toronto; and

WHEREAS Bill 104, The Vital Services Act, authorizes Municipalities to pass By-laws requiring Vital Services Utilities to adopt a similar program;

NOW THEREFORE BE IT RESOLVED THAT the City Solicitor be requested to draft a By-law in accordance with Bill 104 to be presented to the Urban Environment and Development Committee for consideration;

AND BE IT FURTHER RESOLVED THAT City Council communicate with the City's vital services utility providers requesting their co-operation in continuing this service under the authority of and as would be required by the By-law proposed in resolution No.(1);

AND BE IT FURTHER RESOLVED THAT the appropriate staff initiate discussions with the City's vital services utility providers to share information regarding the operational aspects of the former City of Toronto's utility restoration program.

Comments and/or Discussion and/or Justification:

The motion set out above, proposes that the City enact a by-law requiring providers of vital services to adopt a program whereby the service providers would continue to provide services to tenanted properties despite the landlord's failure to make utility payments. City Council, however, lacks the authority to enact such a by-law. Council may require utility companies to give 30 days notice of the intention to discontinue service for non-payment; however, after the 30-day period has elapsed, Council cannot require continuation of the service without payment to the utility company.

The motion refers to "Bill 104, The Vital Services Act", which appears to be a reference to the City's power, under s. 210.2 of the Municipal Act, to enact a vital services by-law. There is not actually a statute entitled "The Vital Services Act". Section 210.2 of the Municipal Act was added to the Municipal Act in 1994 when the Legislature passed the Municipal Amendment Act (Vital Services), 1994, which was Bill 104 when it was introduced. Section 210.2 will be replaced on June 17, 1998, when the Tenant Protection Act (the "TPA"), comes into force. Sections 145 to 153 of the TenantProtection Act provide authority that is essentially the same as that currently provided in s.210.2 of the Municipal Act. City Council's authority to enact a vital services by-law will not be changed by the TPA.

The TPA defines "vital service" as "fuel, hydro, gas or hot or cold water", and provides that a "vital services by-law" is a by-law passed pursuant to s.146 of the TPA. Section 146 of the TPA provides that a vital services by-law may require landlords to provide adequate and suitable vital services to the rental units. A vital services by-law may require the supplier of a vital service to notify the municipality if the vital service is to be discontinued for the reason that the landlord has breached a contract with the supplier (i.e., failure to make utility payments). At least 30 days' notice is required.

The municipality may then arrange for the service to be provided. The municipality would do this by paying for the service and then attempting to recover the amount paid plus administrative costs. Accordingly, the municipality is authorized to register a lien against the property for the amount, and to direct the tenant to pay any or all of the rent for the unit to the municipality. The payment by the tenant is not to be treated as a default of the obligation to pay rent to the landlord. Naturally, such provisions do not apply where the tenant has agreed to maintain the vital services.

There will be administrative costs to the City of administering a program pursuant to a vital services by-law, and there may also be some difficulty in recovering all of the money paid by the City to the utility companies. It is my understanding that funds have not been budgeted for the administration of a vital services program by the City.

Pursuant to special legislation, the former City of Toronto had a program somewhat similar to that which would be permitted pursuant to a vital services by-law. The Budget Committee has recommended discontinuation of the program. The other former municipalities within the urban area that is currently the City of Toronto had the ability to enact such a by-law, but none of them enacted one.

Should Council choose not to enact a vital services by-law, tenants will still have some recourse against landlords who fail to provide an adequate supply of a vital service. The TPA will prohibit landlords from withholding a "reasonable supply of any vital service ... that it is the landlord's obligation to supply under the tenancy agreement". Tenants may apply to the Ontario Rental Housing Tribunal should the landlord breach this provision. The Tribunal can provide a range of relief including an abatement of rent. In addition, I am informed by staff of the Municipal Standards Division that existing municipal standards by-laws address the provision of vital services.

Conclusions:

While City Council can enact a vital services by-law, it cannot require suppliers of a vital service to provide the service beyond the 30-day notice period or to adopt a program similar to that which was in place in the former City of Toronto.

Contact Name:

Ms. Wendy Walberg , 392-8078.

The Urban Environment and Development Committee also submits the following report (July13, 1998) from Councillor Anne Johnston, North Toronto:

Recommendations:

(1)That your Committee defer this item until your September 8, 1998 meeting for deputations. My reading of the reports before you today will leave tenants at great risk should we eliminate the Urgent Hazards Program. It therefore seems only fair to give tenants across the new City of Toronto time to review the Urgent Hazard Program and the replacement proposed by Councillor Jakobek's motion before you today;

(2)that your Committee ask the City Solicitor to report to the next meeting of your Committee on what legislation would be required to reinstate the former City of Toronto's Urgent Hazard Program to serve the new City of Toronto; and

(3)that the relevant officials report on the ability of Toronto Hydro and other essential services to provide the continuation of services under the same conditions as formerly applied to the Urgent Hazard Program by the old City of Toronto (under the former City of Toronto Act).

Background:

On July 2, 1998, I received the attached communication from the Urban Planning and Development Services Department informing me that the Urgent Hazard Program, formerly operating in the old City of Toronto, has been discontinued due to "budgetary changes".

On checking the Urban Planning and Development budget line (attached) applicable to the cancellation of the Urgent Hazard Program, I was surprised to see the notation that the then-proposed "Vital Services Act" would allow the utilities to continue with the former Urgent Hazard Program. This statement was misleading, to say the least, as far as tenants and their essential services are concerned.

(Communication dated June 26, 1998, from the

Urban Planning and Development Services Department,

referred to in the foregoing report.)

Urgent Hazard Program Change - Former City of Toronto:

Attached is a communique being circulated in order to provide advice of an upcoming program change which is effective July 1, 1998, regarding utility service cuts to rental residential properties within the former City of Toronto. Budgetary changes have resulted in the subject program adjustment.

Please review the attachment and advise relevant parties affiliated with your office or organization.

Thank you.

(Communique dated June 26, 1998, from the

Urban Planning and Development Services Department,

referred to in the foregoing communication.)

Changes in the City of Toronto's Urban Planning and Development Services' budget, as approved by City Council, will result in adjustments to certain of the Department's programs, effective July1, 1998.

The Urgent Hazard Program, which provided only for the former City of Toronto to directly authorize payments to utility companies in cases where hydro or gas services were cut to residential rental properties due to a landlord's defaulting on payments, will be discontinued. The City will continue to handle complaints, and any necessary enforcement action will be undertaken.

The Urban Environment and Development Committee also submits the following communication (May 25, 1998) from the City Clerk:

City Council, at its meeting held on May 13 and 14, 1998, referred the following Motion to the Urban Environment and Development Committee for consideration:

Moved by:Councillor Jakobek

Seconded by:Councillor Ootes

"WHEREAS the Budget Committee accepted the proposal of the Commissioner of Urban Planning and Development Services to discontinue the program previously delivered, only in the former City of Toronto, which paid on behalf of property owners and collected utility payments in like manner as realty property taxes when such utilities had been discontinued to tenanted properties, under the authority of Section 6 of the City of Toronto Act, 1936 (which applied only in the former City of Toronto); and

WHEREAS it is anticipated that the legislative authority for this program will be repealed or superseded by the Provincial Government in the spring of 1998; and

WHEREAS it is desirable to ensure regulations are in place that are applicable to the whole of the new City of Toronto; and

WHEREAS Bill 104, The Vital Services Act, authorizes Municipalities to pass By-laws requiring Vital Services Utilities to adopt a similar program;

NOW THEREFORE BE IT RESOLVED THAT the City Solicitor be requested to draft a By-law in accordance with Bill 104 to be presented to the Urban Environment and Development Committee for consideration;

AND BE IT FURTHER RESOLVED THAT City Council communicate with the City's vital services utility providers requesting their co-operation in continuing this service under the authority of and as would be required by the By-law proposed in resolution No. (1);

AND BE IT FURTHER RESOLVED THAT the appropriate staff initiate discussions with the City's vital services utility providers to share information regarding the operational aspects of the former City of Toronto's utility restoration program."

(A copy of the relevant pages of the Urban Planning and Development budget, referred to in the foregoing report dated July 13, 1998, from Councillor Anne Johnston, North Toronto, is on file in the office of the City Clerk.)

(City Council on July 29, 30 and 31, 1998, had before it, during consideration of the foregoing Clause, the following report (July 15, 1998) from the City Solicitor:

Purpose:

The Urban Environment and Development Committee has requested that I report directly to Council on the legislative amendments that would be required to permit the City to adopt a vital services program similar to that conducted in the former City of Toronto under its special legislation.

Funding Sources, Financial Implications and Impact Statement:

Should the City request special legislation, there will likely be a cost of more than $6,000.00 to make the request. Should the City's request be granted, there will be a cost of operating a vital services program. The Committee deferred consideration of the Commissioner of Urban Planning and Development's report of June 10, 1998 which outlined some of those costs. The Commissioner has been requested to prepare an additional report for the Committee's September 8, 1998, meeting.

Recommendation:

It is recommended that this report be received for information.

Council Reference/Background/History:

On July 13, 1998, the Urban Environment and Development Committee considered two reports on the subject of vital services by-laws.

A report from me explained that the City lacked the authority to require providers of vital services to adopt a program whereby the suppliers would continue to provide services to rental properties despite the landlord's failure to make utility payments.

The report also explained that the Tenant Protection Act gives Council the power to enact a vital services by-law. Under a vital services by-law the City can pay the cost of providing a vital service when the landlord has failed to do so and the service provider intends to discontinue the service. The City would have some power to collect the money spent. It could place a lien on the premises and require the tenant to pay any or all rent directly to the City.

The former City of Toronto had a similar program under its special legislation. The special legislation applies only to the urban area that was formerly the City of Toronto. The main difference between the former City's program and one which the new City could adopt is that special legislation permitted the former City to collect the money paid out as realty taxes. Realty taxes have the first priority above all other claims. For this reason, the money was much easier to collect under that program. Even so, the program was considered costly to administer and has been discontinued.

The Commissioner's report recommends that "the City of Toronto NOT enact a vital services by-law under authority of the Tenant Protection Act, given the expected high cost of its administration and potential for financial risk to the City."

The Urban Environment and Development Committee requested that I report directly to Council on the legislative amendments that would be required to permit the City to adopt a program similar to the one that was in place in the former City.

Comments and/or Discussion and/or Justification:

The program that was in place in the former City of Toronto was authorized by the City of Toronto Act, 1936. That special legislation provides authority for property standards by-laws and enforcement of the by-laws. Under the legislation the former City could enact a by-law like a vital services by-law and adopt a program similar to that which can currently be established by the City under the Tenant Protection Act. Like the Tenant Protection Act, the special legislation provided that the City had a lien for the amount expended; however, the special legislation also provided that the amount was deemed to be municipal real property taxes and could be collected in the same manner as real property taxes.

The Tenant Protection Act does not authorize the municipality to collect the amount owed to it as real property taxes. I have been asked to report on the legislative amendments that would be required to give the City this authority. There are three possible approaches.

First, the City could request that the City of Toronto Act, 1936 be amended to provide that the relevant provisions apply the new City of Toronto. I do not recommend this course of action. Only a small part of a very lengthy section of that legislation is relevant, and there is a standing order that special legislation will not be amended unless the entire section is put forward for amendment.

Second, the City could request new special legislation which would include provisions similar to the relevant portions of the City of Toronto Act, 1936 and any portions of the relevant Tenant Protection Act provisions that might assist.

In order to expedite the processing of an application for special legislation and as encouraged by guidelines of the Standing Committee on Regulations and Private Bills, the usual practice is to consult ahead of time with the Legislative Counsel on the form of the Private Bill and with the Ministry of Municipal Affairs' staff on both the form and content of the Private Bill before giving notice and filing an application for a Private Bill with the Clerk of the House.

Third, the City could request an amendment to the Tenant Protection Act. The amendment could add to the current provision that permits a municipality to put a lien on the property. It could provide that the amount of the lien is deemed to be real property taxes.

I am informed by staff of the Municipal Standards Division that they have met with Consumers Gas and Toronto Hydro about the discontinuation of the vital services program in the former City of Toronto. They have been informed that the utilities will institute their normal collection process which includes a policy of not cutting in winter if vulnerable people are at risk.

Conclusions:

Should City Council wish to request legislation that would enable the City to adopt a program similar to the vital services program that was in place in the former City of Toronto, Council could instruct staff to make that request. Should City Council wish to request private legislation, Council could instruct the City Solicitor to consult with the Legislative Counsel and the Minister of Municipal Affairs and report back to the Urban Environment and Development Committee.

Contact Name:

Ms. Wendy E. Walberg, Solicitor, 392-8078.)

The Urban Environment and Development Committee also submits the following report (October 1, 1998) from Councillor Joe Pantalone, Chair, Urban Environment and Development Committee:

The issue of vital services has been the subject of a number of reports to this Committee as well as to the Council Strategy Committee for People Without Homes.

There now is general agreement among the staff of Urban and Development Services, Health, and Community and Neighbourhood Services, as well as this Committee and the Council Strategy Committee for People Without Homes as to an approach to be taken to address this issue.

The following recommendations reflect that consensus and should be adopted:

(1)that the City of Toronto not enact a Vital Services By-law under the authority of the TenantProtection Act, 1997;

(2)that Council establish a working group comprised of representatives of Municipal Standards, Public Health, other staff members as necessary, and relevant utility/fuel suppliers to establish policies in respect to discontinuing service/supply;

(3)that staff monitor these policies in action, and report back to the Urban Environment and Development Committee on the success of the working group at the end of the current heating season (September 1998 to June 1999);

(4)that staff report to the Urban Environment and Development Committee incidents where the working group was unable to resolve an issue and, as a result, a vital service was discontinued;

(5)that staff prepare an information sheet with respect to the new vital services process which will provide pertinent information, staff contacts, and emergency telephone numbers for distribution to staff and Members of Council; and

(6)that the Energy Efficiency Office of the City of Toronto assist staff and provide input with regard to vital services issues.

The Urban Environment and Development Committee also submits the following Motion from Councillor Pam McConnell, Don River:

WHEREAS the City of Toronto needs a mechanism to ensure that tenants are not unduly affected by the refusal of landlords to pay for vital services;

THEREFORE BE IT RESOLVED THAT the Urban Environment and Development Committee direct

(1) the Commissioner of Urban Planning and Development Services in consultation with the City Solicitor, to draft a Vital Services By-law which:

(a)references the mechanisms to ensure continuing vital services, and full cost recovery of municipal expense incurred in so doing; and

(b)includes a requirement that utility service providers give 30 days' notice to the City prior to service discontinuation for non-payment of account; and

(2)that the City Solicitor submit this By-law to City Council at its October 28, 1998 meeting.

The Urban Environment and Development Committee also submits the following report (October 3, 1998) from Councillor Jack Layton, Don River:

Recommendations:

(1)That the City enact a Vital Services By-law that would include the following provisions:

(a)a requirement that utility service providers give 30 days' notice to the City prior to service discontinuation for non-payment of account; and

(b)mechanisms for municipal payment of delinquent utility accounts for residential landlords and full cost recovery for municipal expenses incurred in the administration of the by-law; and

(2)that the necessary staff, including the City Solicitor, report on this by-law and provide a draft by-law to City Council at its October 28, 1998 meeting.

Background:

At its September 24, 1998 meeting, the Council Strategy Committee for People Without Homes had before it a report from the Commissioner of Community and Neighbourhood Services regarding the City's role in vital services. The report recommended that the City not enact a Vital Services By-law. The Council Strategy Committee affirmed this recommendation, although it made four additional recommendations regarding monitoring, reporting and input from the City's Energy Efficiency Office (see Council Strategy Committee report).

My support for the recommendation was based on the staff proposal that a working group be established comprised of representatives from Municipal Standards, Public Health, and relevant utility/fuel providers. Staff had already met with Hydro and Consumers Gas and indicated that we could reasonably expect that an effective working group could be established and that the following key objectives could be met:

-providing the City reasonable notice (30 days) of impending service discontinuation to facilitate early municipal intervention; and

-helping to develop utility -run programs and policies that would ensure most incidences of service discontinuation be avoided.

Subsequent to the September 24, 1998 Council Strategy Committee meeting, my office was contacted by a representative of Consumers Gas and was informed that it was unlikely that the objectives of the working committee could be met. Specifically, Consumers indicated that without municipal payment of utility bills, it would be reluctant to provide 30 days' notice of service discontinuation to the City. Further, the representative of Consumers Gas indicated that they could not provide reasonable assurance that service discontinuation in rental buildings could be avoided this winter.

Because of the position outlined by Consumers Gas, I am no longer confident that staff's recommendation for a working group will be an effective strategy for preventing service discontinuations this winter. I now believe that it is necessary to establish a by-law that would include a requirement that utility service providers give 30-days' notice to the City prior to service discontinuation for non-payment of account. Further, that mechanisms be established for municipal payment of delinquent utility accounts by residential landlords and for cost recovery for all municipal expenses incurred in the administration of the by-law.

Thank you for your consideration of this matter.

The Urban Environment and Development Committee also submits the following communication (September 28, 1998) from the City Clerk:

Recommendations:

The Council Strategy Committee for People without Homes recommends to the Urban Environment and Development Committee the adoption of the recommendations, as contained in the report (September 22, 1998) from the Commissioner of Community and Neighbourhood Services, subject to the following additional recommendations:

(2)that staff participating on the proposed Working Group, which will establish and monitor policies prior to considering the enactment of a Vital Services By-law, report to the Council Strategy Committee for People without Homes, after one year;

(3)that staff bring forward any occurrences of an emergency nature, which could not be resolved in discussions between staff, the utilities, landlords and/or tenants, with regard to the lack of provision of vital services, to the Council Strategy Committee for People without Homes;

(4)staff prepare an information sheet for distribution to other staff and all Members of Council, which will provide pertinent information on the City's new process, staff contacts and emergency phone numbers with regard to Vital Services; and

(5)the Energy Efficiency Office of the City of Toronto also assist staff and provide input with regard to the Vital Services issue.

Background:

The Council Strategy Committee for People without Homes had before it a report (September 22, 1998) from the Commissioner of Community and Neighborhood Services, providing an overview of the issues regarding the discontinuation of vital services in rental residential properties where the landlord who is obligated to pay the supplier of vital services fails to do so.

The Council Strategy Committee for People without Homes also had before it, for information purposes, the following noted reports:

(1)Vital Services in Rental Residential Properties in the City of Toronto (report from the Commissioner of Urban Planning and the City Solicitor);

(2)Information Regarding Vital Services in Rental Residential Properties in the City of Toronto (report from the Commissioner, Urban Planning); and

(3)Health Impacts Related to the Cut-off of Vital Services (report from the Medical Officer of Health).

The Urban Environment and Development Committee also submits the following communication (October 5, 1998) from the Rooming House Working Group:

The Rooming House Working Group (RHWG) is a committee of City staff (UrbanDevelopment Services, Community and Neighbourhood Services), service providers, landlords and tenants which meets regularly to discuss issues and propose solutions to particular problems affecting the rooming house sector. The RHWG also reports to Council and Committees of Council on community concerns and emerging issues in the sector.

At a recent meeting of the RHWG, members of the community raised concern over the issue of vital services. It was felt that tenants, particularly vulnerable rooming house tenants, would be at risk without the existence of a Vital Services By-law. Follow-up meetings of community members and staff were scheduled to review this item and propose recommendations to ensure the interests of tenants are protected with respect to the provision of vital services.

Reports from Urban Development Services and Community and Neighbourhood Services recommend that the City not pass a Vital Services By-law but rather establish a working group and monitor the issue for one year. The Council Strategy Committee for People Without Homes supports this recommendation. The community has, however, asked the Rooming House Working Group to bring forward its concerns with this approach. They are: that it appears that a Vital Services By-law could be passed without requiring the City to pay for utility bills where landlords default on payment. Instead, a Vital Services By-law would be beneficial in the following three respects:

(1)it would make it an offence for landlords to discontinue a vital service;

(2)it would give the City the opportunity to enter into a meaningful dialogue with TorontoHydro and Consumers Gas; and

(3)it would ensure that service cut-offs not be permitted without 30 days' advance notice to the City.

The community urges the city to pass a Vital Services By-law and establish a working group which includes tenant or consumer representation to assess its first year in effect and propose any required amendments; and that the working group determine under what circumstances the City needs to step in to reinstate discontinued services. Further, passing a Vital Services By-law does not necessarily require the City to step in and pay utility bills but gives it the authority to do so.

The Rooming House Working Group recommends that the City re-examine the issue of passing a Vital Services By-law in light of community concerns.

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The Urban Environment and Development Committee reports, for the information of Council, also having had before it the following communications:

(i)(October 5, 1998) from Ms. Dianne Urquhart, Community Legal Worker, Scarborough Community Legal Services, in support of the passage of a vital services by-law for the City of Toronto.

(ii)(September 25, 1998) from Dixon Hall Neighbourhood Centre, providing comments with respect to the proposal to replace the "Urgent Hazard Program" with a vital services program and outlining potential impacts such a change would have on the Centre's clients.

The following persons appeared in the Urban Environment and Development Committee in connection with the foregoing matter:

-Mr. Howard Tessler, Executive Director, Federation of Metro Tenants' Associations; and filed a written brief with respect thereto;

-Ms. Elinor Mahoney, Parkdale Community Legal Services; and filed a written brief with respect thereto;

-Mr. Matthew Akman, Manager of Municipal Relations; Mr. Dave Morton, Director of Collections; and Mr. Mark Boyce, Legal Counsel, Consumers Gas;

-Mr. Bryan Tutte, Vice-President, Customer Service Toronto Hydro;

-Ms. Virginia Loescher, on behalf of Ms. Barbara Lidster, Toronto; and filed Ms. Lidster's written brief with respect thereto;

-Mr. Steve Cruickshank, East Toronto Community Legal Services Inc.; and filed a written brief with respect thereto;

-Mr. Timothy Maxwell, Community Development Officer, Kensington-Bellwoods Community Legal Services; and filed a written brief with respect thereto;

-Ms. Lavinia Inbar, HIV and AIDS Legal Clinic; and

-Mr. Jim Neff, South Riverdale Community Health Centre; and filed a written brief with respect thereto.