Save The Date: Cunningham Swan Annual Municipal Seminar
Plan to join us on October 28 in Eganville, October 29 in Long Sault, and October 30 in Kingston for our annual municipal seminar. Please send topic suggestions or questions to [email protected]
Strong Mayor Powers Extended to Additional Ontario Municipalities
As of May 1, 2025, “strong mayor” powers have been extended to the heads of council in 169 municipalities through an amendment to Ontario Regulation 530/22. Previously, only 47 municipalities were afforded strong mayor powers.
The list of municipalities that have received strong mayor powers through the recent amendment can be found here.
Strong Mayor Powers Overview
Some of these new powers apply only where the mayor or council are considering prescribed “provincial priorities”, which are currently limited to the construction of new housing and related infrastructure.
The special powers and duties extended to mayors in the Act include the following:
Organizational Powers & Duties
- The power to appoint and dismiss the chief administrative officer
- The power to determine the organizational structure of the municipality, including the power to hire or dismiss the head of any division or other part of the organizational structure. Note that this power specifically this does not include the power to hire or dismiss certain roles, including the clerk, deputy clerk, treasurer, fire chief.
- With respect to committees consisting solely of members of council, the power to:
- Establish or dissolve the committee
- Appoint chairs and vice chairs of the committee
- Assign functions to the committee
Legislative Powers and Duties
- The power to require council to consider a matter that could potentially advance a prescribed provincial priority at a meeting.
- The power to veto a by-law if the head of council is of the opinion that all or part of the by-law could potentially interfere with a prescribed provincial priority.
- The power to require council to consider and vote on a proposed by-law if the head of council is of the opinion that the by-law could potentially advance a prescribed provincial priority.
- The powers and duties of a municipality with respect to proposing and adopting a budget, including the power to prepare a proposed budget and provide same to council for consideration (s. 284.16). Per the regulation, the head of council must propose the budget by February 1st of each year.
- The power to veto a resolution passed by council making an amendment to a budget proposed by the mayor pursuant to the strong mayor powers, but council can over-ride the veto with a two-third vote.
The head of council may delegate chief administrative officer powers, organizational structure powers, and powers concerning local boards and committees, but may not delegate any of the other strong mayor powers.
Implications
It is important to note that some of these duties are mandatory: for example, a strong mayor cannot opt-out of the duties to prepare an annual budget.
Municipalities who are now subject to the Strong Mayors regime should consider what if any amendments to their procedural by-laws, policies and processes may be necessary ensure they are consistent with this new framework.
City of Sudbury’s Due Diligence is Confirmed
In April, the Ontario Court of Appeal denied the Crown’s motion to appeal the decision of the Superior Court of Justice in a workplace fatality case that has worked its way through multiple courts, including before the Supreme Court of Canada. The case arose after a tragic 2015 accident, when a pedestrian was fatally struck by a road grader in downtown Sudbury. The road grader was employed by a general contractor that the City had hired to perform road repairs.
The key issue that was appealed all the way up to the Supreme Court of Canada was whether the City could be charged for breaches of the Occupational Health and Safety Act (“OHSA”) as an “employer” despite not employing any workers at the construction site. The Supreme Court of Canada ultimately determined that the City could be charged as an employer. The case, however, did not end with this decision. Rather, the case was remitted back to trial level to determine whether the City had a valid due diligence defence, despite being liable as an employer. The trial judge determined that the City had exercised due diligence by delegating control of the construction project to a contractor that it had adequately assessed as having the capacity and expertise to perform the work safely. The Court noted that the City paid a premium for this general contractor’s expertise and had taken reasonable steps to monitor the work of its contractor, including by requiring specialized training for their workers. The trial judge’s decision was upheld by the Ontario Superior Court of Justice.
With the Court of Appeal’s decision to deny the Crown’s motion to appeal, this case has now reached its conclusion. While the City of Greater Sudbury was ultimately found not guilty because of its due diligence, this case serves as an important warning for all municipalities and other owners of construction projects – that hiring a general contractor is not enough to protect an owner from liability under OHSA. Owners of projects must exercise due diligence in their selection of that contractor and must continue to exercise due diligence in monitoring the work of the contractor.
Court Upholds Defence of 15-year Limitation Period to Building Code Negligence
Since the decision in Breen v. Lake of Bays back in 2022, municipalities have been concerned about just how far back their liability for building inspections goes. Are they responsible for permits that were never closed or followed-up on, even if those permits are twenty, thirty, forty years old?
The Ontario Court of Appeal recently weighed into this issue in Huether v. Sharpe. In that case, the plaintiffs had brought a claim for negligent inspection thirty-five years after construction started. The Court found that the municipality had mistakenly treated the permit filed as closed, even when inspections were still outstanding.
In Ontario, there are many limitation periods – that is, time limits for going to Court. Generally, most matters must proceed to Court within two years of a claim being “discovered”. What constitutes being discovered could be its own newsletter article (or PhD thesis), but it is generally the case that many limitation periods do not start until the plaintiff has reason to know they should bring a claim. However, Ontario also has an “ultimate limitation period” of 15 years, which applies whether or not the claim was discovered. This means that claims based on facts which occurred more than fifteen years ago, even if those facts were unknown until now, cannot usually proceed. The exception to this (and many limitation periods) is a “continuous act”. If the defendant’s wrongdoing is something that is ongoing, that fifteen-year period never starts ticking until the wrongdoing stops.
In Heuther the alleged negligence was because the Township incorrectly treated the building permit file as being closed, and ceased any follow up or involvement in the construction. The Court of appeal found that failing to follow up – or, effectively, simply doing nothing at all – is not the kind of continuous act that keeps the limitation period from running out. The result was that the homeowners’ claim against the municipality was dismissed.
As with all Court of Appeal decisions, only time will tell how this will impact litigation against municipalities. It’s important to consider the very specific facts that led to this decision – the municipality’s wrongdoing was in treating the file as closed, and it did nothing afterwards. The outcome might be different where, for example, a municipality has identified that a permit was never closed and listed it for follow-up, or where they actually have followed up. It may well be the case that Heuther only really applies where the municipality has genuinely done nothing at all on a file for more than fifteen years.
One final note: in the original motion decision, the Judge found that municipalities have a duty to “monitor” open permit files. On appeal, the Court found that the motion judge had not followed the proper analysis to arrive at this conclusion. However, the judgement very explicitly leaves open the possibility that a court might, in the future, find that such a duty to monitor exists.
Court of Appeal Upholds Licenses for Landlords
The Ontario Court of Appeal recently upheld the City of Windsor’s Residential Licensing By-law, reaffirming that municipalities are entitled to broad deference in implementing policy decisions.
The By-law implemented a pilot project requiring a license to market or operate a rental property and mandating inspections and criminal record checks. Its stated goal was to protect the health and safety of renters as well as neighbourhood character.
A coalition of landlords challenged the By-law, claiming it unfairly targeted students, was enacted arbitrarily and in bad faith, and violated rights of free expression.
In rejecting these arguments, the Court of Appeal upheld that the By-Law was passed in good faith for its stated goal, which was within the City’s jurisdiction. The decision is a reminder that courts should not interfere with the policy decisions of municipalities about matters within their jurisdiction, absent evidence of bad faith or illegality.
Landowner Ordered to Pay Fines and Municipality’s Legal Costs For Contempt of
Court Order
A recent decision of the Ontario Court of Appeal underscores the potential financial consequences for landowners who ignore by-laws and court orders.
A property owner had constructed a berm on his property that interfered with watercourses, including provincially designated wetlands. The Regional Municipality of York ordered him to remove the berm, and when he did not, successfully obtained an order of the Superior Court of Justice requiring that he do so.
When the owner did not comply with that order, the Municipality brought another proceeding in Superior Court. The court again ordered that the berm be removed at the owner’s expense, and further found the owner to be in contempt of court for failing to comply with the first court order. The Court of Appeal upheld the removal order and rejected the framing of the owner as a “victim of municipal bureaucracy and overreach”. The Court also upheld the $10,000 fine for contempt of court, and imposed a further $25,000 in costs for the appeal, on top of the costs awarded at trial.
This outcome demonstrates that courts take contempt of court orders seriously and have the authority to impose significance fines as a consequence for this behavior.
Please note that Cunningham Swan updates are for educational purposes only, not to provide specific legal advice. Should you have any questions or require legal advice, please do not hesitate to contact us by phone at 613-544-0211 or by email at [email protected].