BUILDING DURHAM

The City of Pickering is undergoing their budget process to plan for the service, program an infrastructure needs of the community.

Pickering is currently in its first phase of this process, and has provided their Draft 2023 User Fees for review.  Building & Planning fees can be found on pages 5 - 11, Development - 30 - 32, and Engineering on page 33.  Feedback can be provided to Stacey or directly to the City of Pickering through their survey.

The OHBA Job Ready program matches job seekers with construction industry employers offering six-month job placements and on-the-job training, in addition to wrap-around support services for success.   

In the program’s first two years, over 300 job seekers have been trained and matched with 100+ employers across the province with 96% retention rate for employees placed on site. 

The program would like to get to the root of how to bring more workers from diverse backgrounds into the industry and are examining barriers or challenges to entry. 

Please share your input and opinions on hiring challenges and solutions via this four-minute survey to help improve the Job Ready program.

Thanks in advance for your participation!

Please click here to enter the survey.

OHBA Members should be aware of the result of legal proceedings before the Ontario Court of Appeal concerning the use of Interim Control By-Laws (ICBLs) by municipal governments. We are pleased to report that the appellant was successful in appealing the municipality’s use of an ICBL in an inappropriate way and obtained a decision that builders and developers can rely on in any future disputes with municipalities regarding ICBLs. A brief summary of this decision and its potential implications for Ontario builders is set out below.

By way of brief background regarding ICBLs: 

• ICBLs are harsh planning tools that allow a municipality to effectively freeze development for up to 1 year, while they undertake a land use review or study;
• An ICBL can be extended only once and for no more than one year;
• An ICBL can only be appealed by a landowner after the first year; and
• Once an ICBL expires, a second ICBL cannot be passed for a further 3-years (the “3-year cooling off period”).

In the case of Hummel Properties Inc., the municipality enacted a second ICBL on the subject lands in contravention of the 3-year cooling off period. The lower court found that the municipality was acting within its powers, concluding that two ICBLs could apply to the same property if the ICBLs targeted different purposes. The Association intervened to argue that this was an improper expansion of the ICBL power. External legal counsel at Lenczner Slaght successfully argued that the lower court’s decision was wrong. A more detailed summary of the decision is available on their website here.

The decision has some very positive takeaways for our members: 

1. This decision should discourage municipalities from abusing the ICBL power to delay development. The Court of Appeal confirmed that there must be strict compliance with the 3-year cooling off period. There were conflicting cases about whether a second ICBL could apply to the same lands within the 3-year cooling off period if it was enacted for a different purpose. The Court of Appeal’s decision puts that debate to bed – conclusively determining that a second ICBL cannot be enacted during the 3-year cooling off period even if it is for different purposes. If an ICBL is applied to your lands, take note of when the 3-year cooling off period expires and be sure to challenge any subsequent use of ICBLs if it falls within that time period.
2. ICBLs enacted pursuant to S. 38 of the Planning Act must relate to “land use”. If an ICBL is applied to your land, be sure to carefully review the contents to ensure compliance with the legislative provisions. In the Hummel case, the ICBL prohibited subdivision, which the Court of Appeal concluded was not a “land use” under the Planning Act so the ICBL was illegal.
3. There must be strict compliance with the process for passing the ICBL. The Hummel decision also confirms that municipalities must be transparent when passing ICBLs. If an ICBL is applied to your lands and there is insufficient notice or transparency regarding meetings, the ICBL may be illegal.
4. Limitations on Municipal Powers. The Court of Appeal’s decision confirms that Courts must hold municipalities to strict compliance with statutory requirements when it comes to the exercise of powers that affect property rights. If an ICBL is applied to your land, review it with your lawyers to confirm that it is in strict compliance with all applicable legislation.

For more details or information please contact Andrew Parley and Amy Sherrard at Lenczner Slaght.

As per Town of Whitby Bylaw #7748-21, development charge rates will be indexed on February 1, 2023.  Based on the 2022 (third quarter) Statistics Canada Non-Residential Construction Price Index for Toronto, development charge rates are set to increase by 15.6% on February 1, 2023.  

The new Town of Whitby development charge rates effective February 1, 2023 to January 31, 2024 are:

Residential Development Type (per unit)	Whitby Posted DC Rate - February 1, 2023 - January 31, 2024
Category A - Single/Semi	$46,204.79
Category B - Large Townhome	$35,214.47
Category C - Small Townhome/Large Apartment	$19,397.89
Category D - Small Apartment	$14,823.20
Category E - Special Care/Special Needs	$13,177.04

The full notice from the Town of Whitby can be found here.

Oshawa's Development Services Department will provide a report to the City's Development Services Committee on November 28, 2022 regarding several matters related to planning application processes in Oshawa.  One element of this report will be about changes to planning application fees.   

A draft amendment to Schedule "D" (Planning Application Fees) of the City's General Fees and Charges Bylaw as amended has been sent out ahead of the report.

Typically on January 1 of every year, planning application fees increase by 3% automatically.  The report will consider fee increases greater than 3% for certain application types effective January 1, 2023.  Staff have said that planning applications have grown in complexity and many of the City's planning fees are well below other lakeshore municipalities in Durham.

According to City staff, further explanation regarding the fee changes will be contained in the report.  The report also addresses certain changes to planning application processes in Oshawa as a result of Bill 109.  Access to the report will be available starting Thursday, November 24, 2022 here.

The report and recommendations are anticipated to be considered by council on December 12, 2022.

If you have any comments or concerns, please contact Stacey.

CLOCA is proposing an update to their fee schedule.  The new fee structure can be found here.  

The 2023 fee schedules provide for a 7% inflationary increase, and are also intended to support and build their staff capacity to maintain or reduce review time.  In 2022, they made internal reassignments to dedicate a second staff member to natural heritage-related reviews and to add planning support for files in Clarington to respond to the increase in work there.  In 2023, they intend to increase their staff capacity for Whitby and area with a new Development Planner position.

Staff are proposing that the schedules be approved at the November CLOCA Board of Director's meeting scheduled for Tuesday, November 22nd.  Initially, the new fees were to take effect on January 1, 2023, however DRHBA has received notice from CLOCA that staff are now proposing that the new fees take effect on November 23, 2022 in order to provide more fiscal certainty and to support and build their staff capacity to maintain or reduce review times.

The City of Oshawa has released report CNCL-22-78: City Comments on Bill 23, "More Homes Built Faster Act, 2022", which will be brought to council on November 21, 2022 for approval.  

The Durham Region Home Builders' Association is reviewing the report and will provide comment if deemed necessary.  If you have any comments or concerns you would like addressed in our correspondence, please reach out to Stacey.

At the November 15, 2022 Oshawa special council meeting, nominations were heard and voted on, and the 2022-2026 standing committees were formed.

The new committee makeups are as follows:

Community & Operations Committee

• Chair: John Gray
• Vice Chair: Jim Lee
• John Neal
• Bob Chapman
• Brian Nicholson

Safety & Facilities Committee

• Chair: Brian Nicholson
• Vice Chair: Rick Kerr
• Jim Lee
• Brad Marks
• Rosemary McConkey

Economic & Development Committee

• Chair: Tito-Dante Marimpietri
• Vice Chair: Bob Chapman
• Rick Kerr
• Derek Giberson
• John Gray

Corporate & Finance

• Chair: Derek Giberson
• Vice Chair: Brad Marks
• John Neal
• Tito-Dante Marimpietri
• Rosemary McConkey

On October 24, 2022, Oshawa City Ward 1 incumbent Councillor Rosemary McConkey won the election by 8 votes over challenger Theresa Corless.  According to the City of Oshawa's procedures, an automatic recount would occur if the difference was 6 votes or less.

At the November 15, 2022 special meeting of council, John Mascarin of Aird & Berlis LLP provided a delegation on behalf of Theresa Corless requesting a recount pursuant to s. 57 of the Municipal Elections Act, 1996.

During discussion, it was noted that a total of 97 votes across the City were cast but not counted.  Fifty of those ballots were purposely spoiled or left blank and the remaining 47 were rejected by the tabulator.  The City Clerk believed that there were 7 votes in Ward 1 that were not counted because they were rejected by the tabulator.  The City Clerk also confirmed that once rejected by the tabulator, a human does not review the ballot to determine if there was a clear voting intention.

Council voted in favour of a recount for City Ward 1.  No timeline was discussed or determined.  If the challenger is not satisfied with the City's recount, she has the option to apply to the courts for a hand recount.

At Oshawa's November 15, 2022 special meeting of council, Rosemary McConkey brought forward a motion to object the province's proposed amendments to the Greenbelt Area Boundary Regulation.

During discussion, Councillor Nicholson brought forward an amendment to demand that the province extend the commenting period by 90 days to give council enough time to provide fulsome comment.  The amendment passed, and the amended motion was passed unanimously by council.

The original motion reads as follows:

Whereas, on October 25, 2022 the Province of Ontario introduced the More Homes Built Faster plan, to address the housing crisis by setting a goal to build 1.5 million homes in Ontario over the next 10 years; and,

Whereas, on November 4, 2022 the Province of Ontario took further action to accommodate growth and support the building of more homes, in a targeted manner, by launching a consultation on proposed changes to Ontario’s Greenbelt Plan (ERO 019-6216), the Greenbelt Area boundary regulation (O.Reg. 59/05) (ERO 019-6217) and the Oak Ridges Moraine Conservation Plan (O.Reg.140/02) (ERO 019-6218) in order to:

• Remove/redesignate lands from the Greenbelt Area and the Oak Ridges Moraine Conservation Plan Area that could be suitable for residential development; and,

• Add a portion of the Paris Galt Moraine to the Greenbelt Area, designated as Protected Countryside with a Natural Heritage System; and,

Whereas, the proposed changes to the Greenbelt Area boundary regulation, if adopted, will remove or redesignate a total of 15 areas along the edge of the Greenbelt Area throughout the Greater Golden Horseshoe, totaling approximately 7,400 acres, for the purpose of being developed for housing in the near term, in exchange for adding 9,400 acres to the Greenbelt Area comprised of Urban River Valley areas and part of the Paris Galt Moraine; and,

Whereas, none of the 15 areas are located in the City of Oshawa, but do include areas in other Durham lakeshore municipalities including the City of Pickering and the Municipality of Clarington; and,

Whereas, it is the government’s expectation that construction of new homes in these areas would begin no later than 2025 with proponents fully funding any necessary infrastructure upfront, and if adopted, the proposed changes would result in the construction of approximately 50,000 or more new homes in areas once protected by the Greenbelt Plan; and,

Whereas, the above noted proposed changes constitute a reversal on the part of the Province of its earlier promises to not develop any lands within the Greenbelt, which will result in irreparable damage to the environment and contribute to more urban sprawl in communities across the Greater Golden Horseshoe, and could lead to even more Greenbelt lands being opened up for development in the future with pressure from land speculators; and,

Whereas the proposal to augment the Greenbelt Area by adding, together with lands in the Paris Galt Moraine, thirteen (13) Urban River Valleys in exchange for the removal of lands currently in the Greenbelt Area to facilitate residential development is not an equivalent exchange, as urban waterways would not in any case be suitable for development; and,

Whereas, the Ministry of Municipal Affairs and Housing is seeking feedback on the above-mentioned proposed amendments, with comments due no later than December 4, 2022;

Therefore be it resolved that the City of Oshawa does not support the Province of Ontario’s proposed amendments to the Greenbelt Plan, Greenbelt Area boundary regulation and the Oak Ridges Moraine Conservation Plan, and a copy of said motion be sent to the Province of Ontario, the Region of Durham, Durham area municipalities, Durham area M.P.P.’s and the City’s Building Industry Liaison Team, which includes the Durham Chapter of the Building Industry and Land Development Association and the Durham Region Home Builders’ Association.