The “Clergy” Principle – What Happens When Planning Policy Changes

The Divisional Court recently considered the longstanding “Clergy” principle on an appeal from a decision of the LPAT.

The principle addresses the situation where an official plan or other municipal planning policy changes during the time between an application’s submission and its appeal before the LPAT (now the Ontario Land Tribunal “OLT”). For example, a developer may submit a zoning by-law amendment application but, by the time the application is subject to an appeal, the relevant official plan policy has been amended. The question then becomes, what policy will be applied by the OLT to evaluate the application at the appeal?

The “Clergy” principle states that the policy in place at the time the application was deemed complete governs. There are limited circumstances in which the OLT may decide to expand the principle, but it is the guiding principle in most circumstances. It should be noted that it only applies to municipal planning policy (i.e. an Official Plan) – the Provincial Policy Statement, for example, states clearly that any decision must be consistent with the PPS at the time the decision is made.

The recent Divisional Court ruling provided an additional development regarding the Clergy principle. Its consideration and application was held not to be a “question of law”. What this means is that the OLT’s choice to apply or not apply the principle, as well as how it applies the principle, is not something that can be subject to an appeal to the Divisional Court. The Clergy principle is therefore within the discretion of the OLT and may not be reviewed by the courts.

This principle is important in considering development applications during times of changing planning policy – while there are some limited exceptions, the guiding principle in such circumstances is to apply the policy in place at the time the application was deemed complete.

Virtual Council Meetings Must be Livestreamed at all Times

Section 239(1) of the Municipal Act requires that all meetings of council be open to the public, with limited exceptions. In two recent reports, the Ontario Ombudsman found that this requires that virtual meetings be continuously livestreamed to the public. 

The Town of Westport’s CAO tried to livestream a virtual Council meeting on YouTube but encountered technical difficulties. Council decided to proceed with the meeting without the livestream. The CAO later uploaded a recording of the meeting to YouTube. The Ombudsman found that because the public was not able to virtually attend the meeting, it was improperly closed to the public.

Staff in Hamilton streaming a virtual committee meeting lost her internet connection. After noticing the staff liaison had disconnected from the meeting, the Chair of the Committee decided to continue in her absence. The staff liaison reconnected 23 minutes later and resumed the livestream.  The Ombudsman concluded that the meeting was improperly closed during the 23 minutes that the livestream was down.

Although the Ombudsman’s decisions are not statements of law and may not be followed by courts, municipalities must be conscious that decisions made during illegal closed meetings are void.  If a court finds that failing to livestream constitutes an illegal closed meeting, any decision is subject to challenge. Councils and committees should ensure their virtual meetings are capable of being reliably streamed to the public. If the livestream is interrupted, or other technical issues prevent the public from meaningful listening or participating as required by law, councils should pause all business immediately until the issue is fixed.

 Recordings of Closed Sessions Can be Used in Court

The Municipal Act permits Council to discuss certain sensitive matters in closed session. It is common practice in many municipalities to record these closed session discussions. However, council and staff should be aware that the court can order the disclosure of closed session recordings in certain circumstances.

In Southgate Township, the CAO provided a report to Council in closed session about the reason for terminating an employee’s position. The employee sued the Township for wrongful dismissal, alleging she was terminated for discriminatory reasons. During the litigation, she argued the Township must disclose the closed session recording to her.

The Court ordered that the Township must disclose the portion of the recording discussing the reason for her termination, but not subsequent discussion of litigation and negotiation strategy. The court reasoned that although closed session discussions are generally protected by “confidential communications privilege”, it was appropriate to pierce the privilege because the CAO’s justification for the termination was highly relevant to the key issue on trial – whether or not the termination was motivated by discrimination. In addition, the prejudice to the municipality was limited.    

Impost Fee By-laws are Legal

We recently defended a challenge to the City of Kingston’s Impost By-law passed under Section 391 of the Municipal Act, 2001 (the “Act”). Two local developers brought an application seeking an order strike down or “quash” the by-law.

The City’s by-law imposed fees to fund capital costs associated with the installation of growth-related water and sewer infrastructure. The developers raised several grounds to allege that the City did not have the authority to pass the by-law. 

• Does the Development Charges Act (“DCA”) prohibit using s. 391 of the Act to impose fees for the installation of water and wastewater infrastructure?

No. The Court found that the mere fact that the DCA also allows a municipality to collect fees for capital water and sewer projects does not prohibit a municipality from imposing the fees under the Act. The Court found that “double-dipping” and imposing the fees under both pieces of legislation was prohibited, but that this was not occurring.

• Is the Impost By-law of no effect because it conflicts with the DCA?

No. The Applicants argued that under Section 14 of the Municipal Act the Impost By-law was of no force and effect because it conflicted with the DCA. The Court found that there was no conflict between the by-law and the DCA and that the two could co-exist.

• Is the Impost By-law in contravention of Section 394(1)(e) of the Act because it imposes a fee or charge related to a natural resource?

No. The Court rejected the Applicant’s argument that the impost fees charged were related to a natural resource. The Court accepted the municipality’s position that the impost fees were based on the infrastructure through which water and wastewater flows, and not on the natural resource itself.

• Does the Impost By-law contravene Section 394(1)(b) of the Act because it deals with the use, purchase or consumption by a person of property other than the property of the City?

No. First, the Court found that the impost fees were related to the infrastructure, which is property owned by the municipality. Second, the Court found that the charges were based on increased demand on the infrastructure as opposed to the use, purchase or consumption of the land owned by developers.

• Is the Impost By-law discriminatory in its treatment of developers?

No. The Court found the by-law was not discriminatory against developers. The Court noted that, in any event, it was satisfied that the municipality exercised its broad authority to pass by-laws under Section 10 of the Act and its power to differentiate between any person under Section 8(4).

The decision is important to both municipalities and developers with respect to the validity of impost by-laws and the fees charged under these by-laws, as well as other fees and charges which rely on the same authority. We note that the decision was appealed to the Court of Appeal and so the final chapter will be determined sometime in 2022.  We will update this article once a decision is rendered.

The link to the full text of the Court’s decision can be found here.

If you have any questions about the above information, our team would be pleased to assist you.