On August 27th, 2010, the City of Toronto enacted Zoning By‐law 1156‐2010, more commonly known as the new City of Toronto Harmonized Zoning By‐law (the “New By‐law”). The New By‐law was supposed to harmonize the various zoning regulations contained in the 43 bylaws which governed the 6 former area municipalities now comprising the City of Toronto. Unfortunately, this harmonization process took away many landowners’ existing zoning rights and became a significant barrier for the redevelopment of many properties in the City of Toronto. As a result, there were 694 appeals filed against the New By‐law to the Ontario Municipal Board (“OMB”).

In light of the fact that there were a significant number of appeals, the City’s Building Division had to apply the provisions of both the old bylaws and the New By‐law in determining whether a building permit should be issued for a particular development. This is because, under the Planning Act, once the appeals are resolved, the New Bylaw would be deemed to have been in force as of the day it was passed [i.e., August 27th, 2010], even though it could take years to resolve all of the outstanding appeals. This meant property owners needed to comply with both the old provisions and the provisions set out in the New By‐law, thereby creating a huge headache for many landowners. In many cases, landowners were required to make applications to the Committee of Adjustment for minor variances to the New By‐law even though they completely complied with the zoning provisions in place prior to the adoption of the New By‐law. Other landowners seeking to redevelop their properties had to seek variances from both the old by‐laws and the New By‐law. In many of these cases, the number of variances required from the New Bylaw greatly exceeded those required from the old by‐law provisions.

The City’s Planning Division attempted to address some of the issues raised in the appeals by adopting various amendments to the New By‐law. This was unusual since the New By‐law was not in force and effect. In fact, the OMB has not even scheduled a first prehearing with respect to these 694 appeals.

Prior to adopting amendments to the New Bylaw, the City was required, under the Planning Act, to hold a public meeting. At that public meeting, held on March 24th, 2011 before the City’s Planning & Growth Management Committee, a number of appellants and other interested parties came out in full force, requesting that City Council repeal the New Bylaw. City Council, at its meeting on April 12th and 13th, 2011, directed that notice be given of a special public meeting of the Planning & Growth Management Committee to hear representations concerning the repeal of the New By‐law. At that May 10th, 2011 special public meeting, the Committee resoundly recommended that City Council repeal the New By‐law and all subsequent amendments to the New By‐law.

The Committee also recommended that City Council direct the Chief Planner and Executive Director, City Planning, to conduct consultations with appellants to the New By‐law and report back to the Planning & Growth Management Committee at its meeting of October 6th, 2011. They further recommended that City Council request the Committee to schedule a public meeting at its November 8th, 2011 meeting, for the purpose of considering whether to adopt the New By‐law with any proposed revisions resulting from the consultations with appellants and City Councillors (the “Revised New By‐law”), so that the Revised New By‐law could then be considered for adoption by City Council on February 6th, 2012.

At the meeting held on May 17th, 18th and 19th, 2011, City Council ultimately agreed to repeal the New By‐law.

What does this mean?  

Unfortunately, property owners may not be totally free of the grasp of the New By‐law yet. The City has provided notice with respect to the repeal of the New By‐law. There are some lawyers, including some City of Toronto lawyers, who think that the repeal of the New By‐law is also appealable to the OMB. Many lawyers are of the opinion that this position is erroneous since a repealing by‐law is not considered a zoning bylaw, passed under Section 34 of the Planning Act, based on previous court decisions, including Re Cadillac Development Corp. Ltd. and City of Toronto, [1973] 1 O.R. (2d) 20 and the OMB decision in Re Hamilton (City) Official Plan Amendment 12 and Zoning By‐laws 84‐46 and 88‐ 86 (1989), 23 O.M.B.R. 476. If an appeal is filed with respect to the repealing by‐law, this matter will have to be addressed, either at the OMB or in the courts, before property owners will no longer be subject to the New By‐law.

Even once the issue of whether or not the repealing by‐law can be appealed to the OMB has been resolved, we strongly recommend all clients continue to monitor this matter as City Council has requested a very tight timeframe for the Revised New By‐law to be developed and adopted by City Council. Any future appeal rights can only be preserved if the necessary submissions have been made by property owners or their counsel, such as FMC has done in the past. In the end, many of the offending provisions contained in the New By‐law may remain in the Revised New Bylaw, currently scheduled to be adopted by City Council in February 2012, and action will likely need to be taken.