Wednesday 27 March 1991

City of London Act, 1990, Bill Pr29

City of York Act, 1990, Bill Pr52

Town of Markham Act, 1990, Bill Pr38

Wolfe Consortium for Advanced Studies Inc Act, 1990, Bill Pr46




Chair: Sutherland, Kimble (Oxford NDP)

Vice-Chair: O'Connor, Larry (Durham-York NDP)

Abel, Donald (Wentworth North NDP)

Ferguson, Will (Kitchener NDP)

Fletcher, Derek (Guelph NDP)

Johnson, Paul R. (Prince Edward-Lennox-South Hastings NDP)

Jordan, Leo (Lanark-Renfrew PC)

MacKinnon, Ellen (Lambton NDP)

Miclash, Frank (Kenora L)

Ruprecht, Tony (Parkdale L)

Sola, John (Mississauga East L)

Wilson, Jim (Simcoe West PC)


Arnott, Ted (Wellington PC) for Mr Jordan

Chiarelli, Robert (Ottawa West L) for Mr Miclash

Clerk: Decker, Todd


Fenson, Avrum, Research Officer, Legislative Research Service

Mifsud, Lucinda, Legislative Counsel

The committee met at 1006 in committee room 1.


Consideration of Bill Pr29, An Act respecting the City of London.

The Chair: Seeing a quorum, I will call this meeting to order. My apologies for being late. I had to partially attend another committee meeting. Welcome back. This is the standing committee on regulations and private bills, and our first order of business is Bill Pr29. I would like to call forward Mrs Cunningham, and I believe it is, Mr Blackwell, the city solicitor for the city of London. If you would care to come forward. Mrs Cunningham, would you like to make a short statement?

Mrs Cunningham: Mr Chairman, we have a vested interest, do we not, you and I?

Mr Ferguson: All in favour?

Mrs Cunningham: Great. Who called the vote? This Bill Pr29, An Act respecting the City of London, is basically explained, I think, just on the second page of the act itself The purpose of the bill is to alter the composition of the London Transit Commission, which is the first part, and the second part of the bill would authorize the city of London to enter into agreements with the Western Fair Association. Mr Blackwell is very well versed on this legislation, and I think he should be making the formal presentation to the committee. I will just be here to answer questions if available; so we thank you for the opportunity.

Mr Blackwell: I do not know whether you want me to address both sections at once or whether you want me just to proceed with one and then have you deal with it and proceed with the other.

The Chair: Whatever you are most comfortable with.

Mr Blackwell: As Mrs Cunningham has said, actually this bill, I think, is very straightforward. Section 1, although it is rather extensive in its printing, is rather simple in its substance in that we are seeking merely to change the composition of the London Transit Commission. The number of members of the commission now stands at five and would remain at five, but the object of the change is to allow some flexibility in the numbers of elected people who might compose the commission from time to time. At present, there are two elected people, and it is proposed to give the council the flexibility of either remaining with those two or increasing the number to three. So the result would be that there would either be two elected people and three non-elected people or three elected people and two non-elected people. It is also proposed to continue with the present staggered term as far as non-elected people are concerned. Basically, that is the thrust. I understand that there may be a motion to make an amendment to the bill, and I have no instructions with respect to that.

On the other matter, section 2 really is a technical matter. For several years the city of London and the Western Fair Association have had agreements relating to the operation and use of land which is owned by the corporation and used by the association. We have just recently entered into another long-term agreement. In the past, our agreements have been enshrined in our private legislation. The present agreement contemplates some confirmation by private legislation. It is not proposed that the agreement be reproduced in total in private legislation but merely that there be some recognition through this act that both the city and the association have the authority to enter into the present agreement that they have. We would also propose to clean up some of the past legislation by repealing the old agreements and the old enabling legislation.

The Chair: Can I ask for some comment from the parliamentary assistant to the Minister of Municipal Affairs.

Mr Ferguson: The Ministry of Transportation supports the application, as it feels it would bring some political and fiscal accountability by giving council the ability, number one, to control the composition. The Minister of Municipal Affairs wrote Mayor Gosnell on 22 January to say that the ministry does not support the term of board members which extends beyond the term of the appointing council. I think members of the committee can appreciate that the policy is aimed at giving the newly elected council the opportunity to make appointments it considers appropriate and to ensure accountability to that council as well as to the electorate.

I understand an amendment will be proposed at that time. From the solicitor's comments, I understand that London city council just tabled the letter and has not taken a position on that. We feel it is important that the council of the day appoint the people it deems fit to any local boards or commissions.

The alternative to that, of course, is that the previous council can appoint to a term extending beyond the term of its present mandate. However, in order for the incoming council to overturn that decision, it must revoke the appointments, and I think most members of the committee can appreciate that that puts city council in a very precarious position in order to have to revoke membership of a standing committee, board or a commission rather than appoint.

Mr Chiarelli: I am curious as to why you want the option. Obviously, the question is a question of control on the commission. If council appoints three, then council will have control of decision-making in the particular body. If it appoints two, then control would be off council. If it is for fiscal responsibility, why not simply accept the fact that you want control and appoint three? What would be the factors in any given council, at the start of any council term, that would be discussed to decide whether there would be two or three appointed from council?

Mr Blackwell: First of all, the decision to seek this change is one which was initiated at the elected level and not the administrative level within the city of London, so I should explain that. To that extent, therefore, I am somewhat limited in being able to rationalize totally the reasons why this is coming forward. However, having said that, I think there are some points that I can make.

First of all, the function that the London Transit Commission is carrying on is indeed one which could be carried on by the municipality itself simply operating the transit function as a civic department. To that extent, therefore, the desire to have a majority of council members on the commission is sort of consistent with that concept.

I think, second, part of it may be workload so far as each individual council is concerned and the priority which it may or may not give to transit matters. A particular council may feel in a particular situation that it is content to have the commission operate with a majority of citizens who are well attuned. Their attitude may be greater public participation. Another council coming in may feel that the policies which the commission should be following should be more closely tied with policies that the council is pursuing on transportation matters at that particular time.

So I think that really, as I see in it, what the council is attempting to do is give each individual council the flexibility of saying, "Well, we'll have a greater degree of public participation at one point," or, "We feel that we want to emphasize or give greater direction to transit at another stage," then we've got the capability of doing that.

If I might just speak very briefly to the proposed motion, I should point out that under subsection 1(3) there is of course the right of each individual council, when it comes into office, to decide before 15 February how the commission is to be composed for the duration of its term. Therefore, each incoming council is not necessarily fettered or obliged to accept the composition of the commission that existed under the previous council.

Now, I have digressed and I do not know whether I fully answered the question that you asked.

Mr Chiarelli: I just find section 1 a very curious provision and I was curious to find the rationale behind it I certainly will vote in favour of it, because I support the local option as much as possible in this type of administration, but it is obvious that there is a lot of leeway for playing politics with the particular commission with this type of provision.

Mr O'Connor: You have the motion before you, as amended. I would just like to touch on a few different points. As far as the fiscal responsibility, that lies within the council that would see the members appointed, and if that council then had the option of ensuring that the members were not there for any longer than the term appointed, as the council is, then I think that would be a friendly amendment. As far as the public view, I think it would then give the chance for public participation to take greater effect through municipal elections. I think that it could be used as a well-positioned point for the electorate of that municipality to see their rights not ignored, and the council that is elected.

Mr Blackwell: I appreciate that. I think one of the aspects of what London is seeking is the aspect of continuity. One of the problems I guess in having the term of the transit commission coincide with the term of the council is that there is a prospect that you could have five new members who come on the commission without having had any prior experience or exposure to transit matters. That may be desirable or it may be undesirable, but certainly the motion would preclude the opportunity of having continuity where there might be merit in having that.

One of the core principles, or wishes I guess, in our council wanting to have this legislation is the opportunity of continuity.

Mr Sola: I am interested in the reason for this bill. Has there been any friction between the board and council to date to cause you to come up with this bill?

Mr Blackwell: From my vantage point, there has not. That is not to say that there is not from time to time some comment or some complaint with transit operation. I think that is typical of any transit operation. But certainly from my vantage point, the commission and the council have operated amicably and co-operatively and there is no dissension that I have discerned. `

Mr Sola: Going back to Bob's point, this amendment would not be necessary if subsection 1(3) just said "three members of the commission." If you guaranteed that three members would be elected, then you would have the continuity by having two people who would override the term of the elected officials, and still have control in city council's hands by having three elected members on the board.

Mr Blackwell: Even if the number of elected people was fixed, say, at three, there would still be the aspect of a staggered term probably for non-elected people and you would still get a non-elected person bridging one council into another council. Of course, the motion that is here would prevent that from happening.


Mr Sola: Yes, but I think the motion that is here wants to maintain control in council's hands, whereas if you guaranteed three members of the commission being elected members, the control would be guaranteed and then there would not be this fear of overlapping, of the non-elected members having longer terms than the elected members. You would have the continuity of experience, guaranteed experience, as well as having change on the commission.

Mr Blackwell: Quite frankly, I do not see the relationship between the split between the elected and the non-elected people and the concept of carrying a non-elected person from one council term over to the other, because as I see this motion, the proposal is that everybody's term comes to an end when the council's term comes to an end.

Mr Sola: One other question: Are any local groups opposed to this move?

Mr Blackwell: If they are, we have not heard from them.

Mr J. Wilson: Just to continue to play devil's advocate, you did mention in your remarks, Mr Blackwell, that effectively council will then have control of the commission, but you said that council may very well be able to run this transit service as a department of the city. Then why is not council coming to us and saying, "Let's get rid of the commission and save the taxpayers some money"?

Mr Blackwell: The commission was set up I think around 1951 or 1952 as a separate board and a separate corporate entity from the corporation and it has worked well on that basis. Immediately one of the problems with dissolving the commission is that then the corporation takes on all the assets directly, the collective agreements and all the arrangements. From the status or the nature of the operation so far, there really has not been perceived the need to do that, and I am not sure that necessarily it would be that much more cost-effective to bring it in as a civic department and eliminate the commission. The commissioners are not paid that much anyway, and certainly the backup staff would be the same under either situation.

Mr J. Wilson: Just as a point of clarification for the second part and the Western Fair Association, is this in this act because we have to annul the previous agreements because they were entrenched in provincial legislation?

Mr Blackwell: That is one of the purposes of it, yes.

Mr Ferguson: If I can just further add, the purpose of the proposed amendment is to permit the current council of the day to appoint members of the commission. We think it would be most unfair to saddle London city council with perhaps two or three commissioners of transit that perhaps it does not want to see on the transit commission. If the new council comes in and it likes the work of the previous members of the commission, it has the ability to reappoint them. It can exercise that option, so I really think it is something of a green herring. It used to be red until we got elected.

The Chair: Are there any objectors or interested parties to this bill? Seeing none, any additional statements that anyone would like to make at this time?

Mr O'Connor: Can I move the amendment then?

The Chair: Mr O'Connor moves that subsection 1(4) of the bill be amended by adding at the end, "but no such members shall hold office beyond the term of the council that appointed them."

Mrs MacKinnon: I am having a problem here. There are some people going to be appointed to the commission. Am I correct?

The Chair: Yes.

Mrs MacKinnon: And they could be either two or three. When this council is finished, they are finished also, so therefore that leads me to believe there is not any continuity here whatsoever.

The Chair: No, that is not correct. My understanding of the bill would be that the new council could reappoint some of the same people.

Mrs MacKinnon: Oh, I quite agree. I quite understand that, but there is no guarantee. Am I correct? Having been on a board where out of 18, 17 of us were brand-new, it was really terrible. I just need some explanation, that is all.


Mr Ferguson: No, there is absolutely no guarantee, but we think it is important that the present council appoint the individual members who it sees fit and if there is a wholesale change, much the same as perhaps a wholesale change in the government of Ontario, let me tell you that things will not come to a grinding halt. The buses will still run; passengers will still be picked up. There might be some delay in some of the policy decisions, as we all are very well versed with, but that be as it may, that is the price of democracy.

Mrs MacKinnon: Oh, well, thanks for the explanation. I understand that better now. I had visions of those buses being stopped and people being stranded.

Mrs Cunningham: The concern that Mrs MacKinnon raises, of course, is the concern that goes with this resolution, there is no doubt. But you are right, Mr Chairman, the council can reappoint. But right now there is a built-in plan, and I think that if Mr Ferguson would just reiterate that it is not the intent of this motion that the council not be able to have some continuity, it makes it easier for both of us when we go back to let them know what your intent is.

Mr Ferguson: Absolutely. It would certainly be up to council. If they have a desire to reappoint, that would be their prerogative.

Mr Chiarelli: I think local administration should have the right to make its own mistakes and get involved in its own politics. I think this is a bad law. I said I am going to vote in favour of it because obviously the council has endorsed this particular legislation, but I would like to ask Mrs Cunningham if she can indicate in her opinion whether or not the people of London, if they were fully informed, would support this act.

Mrs Cunningham: I have the same responsibility as you do, Mr Chiarelli. The council has made this decision. I think Mr Blackwell stated it very well and that is that there is a difference of opinion as to how many elected people should be on the commission. My view is that there will probably be three. That is my guess and that is what I think the council was looking for, because it put the numbers in "two or three" to give it some flexibility. I think that elected council represents the public and represents it well in London and this is what it has chosen to do. In my job I am here to support them and I do not see any problem with this. It gives them more flexibility and as a local council I think that that is what they need and want.

Motion agreed to.

Section 1, as amended, agreed to. Sections 2 to 6, inclusive, agreed to. Title agreed to. Bill, as amended, ordered to be reported.


Consideration of Bill Pr52, An Act respecting the City of York.

The Chair: We will now move on to the next bill, which is Bill Pr52, An Act respecting the City of York. The sponsor of the bill is Mr Rizzo.

Mr Rizzo: Mr Chairman, I am here to support the bill on the city of York and I want to explain first what the situation was prior to the new legislation passed in 1984. Before 1984, the board of health in the city of York was made up of citizens nominated by council. City council was able to appoint a medical officer of health. We were -- council was -- I am sorry, I say "we" because I was a member of council then -- able to hire almost all employees. All the nurses were employed, though, by the board of health and council was able to appoint an auditor.

There was a change in the bill in 1984. At that time there was an application by four of the municipalities of Metropolitan Toronto; namely, Toronto, Scarborough, North York and Etobicoke. They applied to retain certain authority. Because of lack of communication between the medical officer of health and city council, the city of York council was not able to apply for the same right and therefore the bill was changed as presented without any input from city council.

After that, when the council was made aware of the situation, council decided to appeal to the government of Ontario to change the bill to reflect a situation that, according to it, was more affecting the needs of the people in the city of York. As a consequence to that, the city of York council appointed itself as board of health, I think after the election in 1988. What they want to do now is go back to appoint citizens as members of the board of health, rather than do it themselves, and I am here to support that principle.

George Bartlett, the city solicitor, is here also to give more explanations about the application, about any other questions that may arise from this committee.

Mr Bartlett: The situation, as the member has indicated, is that historically there was a situation existing in York where the municipality appointed the MOH and appointed a significant number of the staff that performed health functions for the board of health and also appointed the auditor. When the Health Protection and Promotion Act was being proposed and presented the ministry did carry on consultation with -- my understanding is the MOHs of the various regions of the province and various health boards, various municipalities, and with staff of the boards. At that time it was pointed out to the ministry that a number of the Metro area municipalities were in a unique situation in terms of the staffing arrangements that had developed in the Metro area. Four of the municipalities' staff received instructions from their council to request a change to the Health Protection and Promotion Act to reflect the then existing arrangements. That was included in the act when it was passed, in section 59.

As the member has indicated, through a lack of consultation at the local level in the city of York, the interest of the city council in having a similar arrangement was not communicated at that time and the city of York was not put in the same situation as those other four Metro area municipalities. The purpose of this bill that is before this committee today is to restore that equity with the other Metro area municipalities and to put the city of York in the exact same position.

York and the Metro area municipalities do differ from the other health units across the province in a number of significant respects. I guess the two most significant are, first, that the health unit boundaries coincide with the municipal boundaries, so they are coterminous. Second, the cost-sharing arrangements that the province has with the municipalities are different. There are certain services in which the province picks up a larger share, in many cases 100% of the cost, for all municipalities, but in the basic services, essential services, mandatory services, in most of the province the province picks up 75% of the cost of those programs. In the city of York and the other area municipalities within Metropolitan Toronto the province only picks up 40%. So in that sense, a larger proportion of the cost is borne directly by the local taxpayers of the municipality and in that respect council is responsible for that act. Under the terms of the act, the board of health sets the budget. The amendment that is proposed here is partially to redress that situation and to give council, through the staffing decisions, an element of greater control.

I would flag that under the act, as I indicated, the levels of certain services, the mandatory programs, are set by the province. Those will have to, by law, continue to be provided, but the intent of the legislation is to provide more flexibility, more local council control of how those services are provided and more direct control of the cost of providing those health services at the local level. That, I would submit, is consistent with policy and the approach to a greater local control and a greater say directly by the representatives of the taxpayers, who are paying the greater share of the cost of those programs.

Mr Ferguson: The Ministry of Municipal Affairs has no objection to what is being proposed. I just want to point out for the committee members' information that generally across the province of Ontario, health care programs are cost-shared 75% by the province and 25% by the local municipality. In some instances, of course, the province pays 100% of the cost. In this particular situation, as well as other municipalities across Metro, the general rule of thumb is that the municipality is paying 60% of the cost and the province is paying 40% of the cost. That, of course, led to previous requests by some of the other area municipalities in Metro Toronto.

While Municipal Affairs has no concerns, we do have some people here this morning from the Ministry of Health. I would like them to introduce themselves and perhaps they would like to comment on the bill.

Dr Schabas: My name is Richard Schabas. I am the chief medical officer of health with the Ministry of Health.

Miss Wysocki: I am Cezarina Wysocki, counsel in the Ministry of Health.

Dr Schabas: The Ministry of Health is opposed to this bill, and that opposition is supported by the Minister of Health. The ministry has opposed similar pieces of legislation in the past few years on policy grounds. In fact, I met with the council of the city of York a little over a year ago to discuss this proposal and indicated to them at that time that we did have policy objections to this kind of initiative.

The real issue from our standpoint is the autonomy of the board of health. Our legislation is crafted in such a way as to create autonomous boards of health that do in fact have representation from the various important interests, including the municipal interest, community interest and provincial interest, but the board of health should in fact be able to exercise some real autonomy, particularly from the municipal influence.

The current situation in the city of York is that the city of York has the authority to appoint nine municipal appointees to the board of health. While in theory the Minister of Health could appoint up to eight additional members -- in other words, the city would still appoint the majority of the membership -- in practice, historically, the minister has only appointed one or two provincial appointees, which means that the city has in fact appointed in excess of 80% of the members of the board.

The staff are currently employees of the board of health, a staffing arrangement that is similar -- identical, in fact -- to 29 other boards of health in the province, and it is the board of health that establishes what the necessary levels of staffing are, what the resources are that must be allocated for adequate program delivery.

The cost-sharing in Metro Toronto is in fact different from the rest of the province for the general programs, but it should be pointed out that even within Metropolitan Toronto the funding is essentially split approximately 50-50 between the municipality and the province.

The history of section 59, which is the current section that gives a special status to four of the municipalities in Metropolitan Toronto, as I understand, it was really a kind of grandfather clause that was put in place at the time of the new Health Protection and Promotion Act as a recognition of the unique employee status of people in those municipalities. It was not put in place as a desirable policy end, because in fact it sticks out as being quite different from the staffing arrangements elsewhere in the province. It was merely put in place as an expedient of what was considered to be a difficult staffing situation.


I think the real issue here is one of control, in particular control of the budget and of staffing levels for public health programs. The section very clearly says that the municipality not only hires the staff but also gets to set the level of staffing. It is certainly the position of the Ministry of Health, recognizing that staffing represents about 90% of the costs of a board of health and so control over staffing effectively represents control over the budget and the resources of the board of health, that we support some level of autonomy for boards of health in that area of establishing their budgets, and feel that the municipal interest is more than adequately represented in the current level of appointees to the board.

Mr J. Wilson: I am trying to get a feel for how medical officers are appointed now exactly.

Mr Bartlett: By the board of health.

Mr J. Wilson: What is the makeup of the board of health?

Mr Rizzo: One council now plus two provincial appointees.

Mr J. Wilson: As far as I can gather from your comments, your impetus for doing this is to bring you to parity with the other municipalities in the area.

Mr Rizzo: In Toronto.

Mr J. Wilson: Do you think that is a good, sufficient reason?

Mr Rizzo: I do not see any reason why the city of York should be treated differently from the other municipalities in Toronto.

Mr J. Wilson: If council was given the authority to make these appointments, have you got a selection process in mind?

Mr Rizzo: We had a selection process applied for many years prior to the change in the legislation, so we want to go back to the situation that the city of York was in prior to 1984.

Mr J. Wilson: What was that?

Mr Rizzo: Where the city council was able to appoint its own MOH, its own auditor, and the city was responsible for the hiring and firing of the larger part of employees of the board of health.

Mr J. Wilson: If this bill went through, council would effectively have control over the board of health and I think the Ministry of Health has made the point that that would certainly mean budgetary control. Do you have any comments in response to the chief medical officer of health's comments?

Mr Rizzo: What the city of York wants to do is give back control to a board of health composed of people who are in the community rather than politicians. That is exactly what they want to do. The only control the city council would have is control on the budget. But in relation to the programs, there is no control because there are so many programs that are mandated by the province.

Mr J. Wilson: If you control the budget, do you not control the programs? I think that is a point.

Mr Rizzo: No, because there are some mandated programs that had to be implemented. It makes no difference if the board of health is made up of members of council or members of the community.

Mr J. Wilson: Mr Bartlett, it looks like you want to say something.

Mr Bartlett: Just to clarify that, under the regulations that are in place now prescribing the number of municipal members on the board of health, the regulations prescribe that the board of health will consist of nine municipal members, who are in effect nine municipally appointed members. What council members have done in the current situation is appoint themselves to get that level of control since they are the parties responsible to the public for the amount of money that is being spent in that area. There are, as indicated, two provincial appointees as well.

The council, as I understand it, is desirous to allow greater public involvement by having citizen appointees to that board. But they are not happy to do that when that board can then take full control of the budget situation and take it totally out of the hands of the council -- the council that is responsible to the public taxpayers for the amount of money spent. As indicated, under the act and regulations there are mandatory programs every health unit has to provide. Those are mandated by the province. If the bill was passed council could not back away from providing those services. Council would still have to provide those services. There is a provincial interest in this and they are mandated and mandatory through the act and regulations.

What council is concerned about are matters beyond that, that an autonomous board would have the right to bring in programs and pass the cost on to the taxpayers, or the municipality largely, without being accountable directly to the taxpayers. It is the council that is accountable. The intent of the legislation is to give that element of control to the body that is accountable to the public for it and to allow council to take the logical step and the next step, which is, as I understand it, consistent with the provincial policy to appoint a citizen, non-elected board of health made up of members who are not members of council. That is what council would like to see, and this legislation would enable it to do that, while at the same time retaining the element of financial control that it feels it has to retain to be responsible to the ratepayers and taxpayers.

Mr J. Wilson: Without commenting on the fairness of the recent press coverage of this particular council, I am personally leery of giving this council any more authority to appoint anyone anywhere. I would like to know what type of safeguards are in place or what the system would be in appointing these citizens to the board of health if this bill were to pass.

Mr Bartlett: The legislation dealing with the boards of health, the Health Protection and Promotion Act, deals with the appointment of the board and it governs how it is appointed and its term. They serve at the pleasure, basically, of council.

Mr J. Wilson: So it would be in accordance with that act.

Mr Bartlett: Yes, it would be in accordance with that act, but as I say, right now council meets basically as the board of health, with two representatives appointed by the province. The intent of council is to back away from that because it finds that it cannot give the attention that it should to that and it would rather have citizen appointees. But they are not prepared to do that as long as the board has full control of its own budget and without being responsible directly to the taxpayers who have to pick it up.

Mr Chiarelli: So what you are saying then is that if this bill were to be passed, notwithstanding this bill, the health board would be required to do everything that the province requires of it. That will not change in any way.

Mr Bartlett: That is what I understand. There are mandatory services prescribed under the act and regulations and every health unit in the province has to provide those.

Mr Chiarelli: The additional flexibility that you are asking for presumably would give you the opportunity to use municipal funds to advance more health services to the community. Is that correct?

Mr Bartlett: It would give council more flexibility to decide how to meet those services, what staffing we should provide to do it, what type of staffing and maybe provide -- I have not thought it through totally, nor has council perhaps -- more flexibility, maybe shared staffing so that as time arises and something more is required of the public health field, staff could be shuffled to that without having to go out, as a separate body, hiring more staff.

Mr Chiarelli: From a practical point of view, if you cause more services, more staff to be created, are you going to be knocking on the ministry's door to have that funded?

Mr Bartlett: No. As I understand it, the funding arrangements are prescribed by the regulation. There are certain types of services, the child guidance clinic I think is one example, where the province does pick up 100% of the cost. There are other services, I think in the AIDS field for instance, where the federal level of government picks up a large share, if not 100% of it. In other areas, as I understand it, it is 75-25.

Mr Chiarelli: Is that what is happening in the other municipalities, North York, Scarborough, etc, the four municipalities that have been grandfathered? Is that what is happening in those places?

Mr Bartlett: My understanding is, yes, that those municipalities provide the staff to do the functions required of the board of health. That is what this would establish in the city of York.

Mr Chiarelli: I would like to ask a question of the ministry representative. First of all, is the ministry intending to leave this grandfathering in place for these four municipalities, or is there any action imminent to change that at the present time?

Dr Schabas: We are reviewing on a policy level the governance of boards of health, but there is no immediate intention of bringing forth any changes in the legislation. There is no agenda for doing that at the moment.


Mr Chiarelli: Could you repeat again why you would not want to give this municipality the same benefits, the same flexibility to provide additional services, maybe more direct services to the community, as the four that have been grandfathered? I accept the fact that a grandfathering decision was made, but that does not necessarily have to be carved in stone. That is why we have provision to amend legislation in this manner: to accommodate changing requirements, needs or requests.

Dr Schabas: I must say I am a little puzzled by the notion that this amendment would in any way give the council greater flexibility to provide health services, since the public health services are provided through the board of health and all the flexibility to do that, in fact the ability of the council to strongly influence what happens at the board of health, is already in place. Again, it is my understanding that the section was put in place as a matter of convenience, not as a matter of policy, to prevent disruption in those four municipalities that would have entailed having them fall in line with the other boards of health in the province.

I am somewhat puzzled by the argument that seems to be being put forward that this is being done in the interests of promoting the autonomy of the board, because the net result is perhaps a more autonomous board but a board that has a great deal of its authority removed from it.

Mr Chiarelli: Okay, maybe you could describe for the committee what the difference is now, the practical difference in terms of budget and delivery of service to the community between the four communities that have been grandfathered and the community that is making this request.

Dr Schabas: The practical differences are that the boards of health in those two municipalities in Metro Toronto that do not fall under section 59 and the 27 other boards of health across the province, by and large -- and again, it is hard to generalize because you are dealing with a number of individual situations -- have been more successful at promoting the delivery of public health services. They have been more able to obtain the approval and, in some cases, the funding that is necessary to enrich the services. There has been in fact considerable mention made of the mandatory programs. The minister has the authority to set mandatory programs.

Mr Chiarelli: You are saying that this is a backward step, then.

Dr Schabas: Yes. My concern is not so much with the mandatory programs, but I think you should understand that for any board of health in the province there are two kinds of programs provided. There are those that are provincial in nature, that are provided by every board of health across the province, and that is what is set down in the mandatory health programs and services guidelines by the minister, and there are also what we call optional local programs, which are meant to deal specifically with local needs. Most boards of health provide a balance of those two kinds of things.

So the notion that council is committed to providing the mandatory programs -- but I am not sure I am hearing the same commitment, and in fact my concern would be that there would not be the same commitment to some of the very excellent and fine local programs that the city of York has provided in the past. That would seem to me to be at least part of the agenda here.

Mr Chiarelli: I would like to ask counsel to respond to the points that you have just made.

Mr Bartlett: The suggestion there is that there is a hidden agenda here to cut back on the discretionary programs. As I indicated, the current situation is that the council has effective control of the board of health by appointing itself to it. It does not need this to do that, if that was its hidden agenda. I have no reason to suspect that that is part of a hidden agenda. What council wants to do is permit and provide flexibility where it can comfortably provide for a citizen-appointed board but at the same time exercise its responsibility to the taxpayers of the city of York and to have that balance, in effect.

As things stand now, they have appointed themselves to the board as a means of doing what they feel is their duty to their ratepayers in York and they would prefer to back away from that and to appoint a citizen board. To say that the intent is to cut back on discretionary programs, I have no indication that that is the effect. But it is I think consistent, as I indicated, that if they are picking up the large share of the cost of these programs -- and in terms of these programs they pick up 60% -- they are responsible to the taxpayers of the city of York to ensure that they are appropriate programs and that the cost is weighed against the benefits of those programs.

They can do that, correct, through the staffing situation or they can do it by being members of the board of health, and they would like to do it and have this say, if necessary, through the staffing, but at the same time appoint citizen members to the board and meet that policy objective.

So I see it as the best of both worlds, in effect, to do what the city of York council wants. It provides the necessary level of control by the party that is paying the bills but at the same time encourages citizen involvement, encourages the exploration of possible new programs. But it has that second check that, with all due respect to Dr Schabas, in my mind is very appropriate and to our council is very appropriate.

Mr O'Connor: Thank you for coming here today. Just a couple of different things. There were no precedents for this bill to be drafted, yet there has been some way that the other four were grandfathered into it. Could you explain a little bit of that to me -- I am just a little bit lost there -- someone from the ministry?

Miss Wysocki: If I may, sir, I was the counsel when the Health Protection and Promotion Act was drafted, and quite frankly the government's intention at that point in time was to regularize the whole situation with boards of health in the province. The original bill provided for a board of health with the ability of that board of health to engage a medical officer of health and all employees that were necessary for the provision of standard programs. The main feature of that bill was to provide within the province a standard public health service. Up to that point in time the service was really fragmented. Boards of health had the option of providing whatever type of programs they wanted, and the province did not have any ability at that point in time to require a standard service of public health. My recollection is that the city of Toronto had provided the board of health with civic employees. These employees were part of a city of Toronto department. It was called a municipal department of health.

The board of health really functioned as a policy body. When the ministry said that it was time to regularize and confer on boards of health similar authority, the city officials said that they were quite opposed to it on a matter of principle. There were such things as vested pension rights, the whole thing. They felt that it was very difficult to change the status quo of the civic employees. They were part of the Ontario municipal employees retirement system, OMERS as I recall, and they asked if the province would regularize that situation and confer on the council of the city the authority to engage the services of the employees, provide them to the board of health. The legislation is quite clear that it is the city council that determines the numbers needed for the provision of the services.

Just as counsel for the city of York has indicated, there was a grandfathering provision. But this was not to be the principle that prevailed with respect to boards of health. I must point out that the composition of the board of health is provided for in the regulations under the Health Protection and Promotion Act. Indeed, the qualifications of the members to the board are prescribed also in regulation. So at any given point in time, say in the situation that we are addressing today, the nine municipal members appointed by the council to the board can be varied.

The regulation can be amended to provide for citizen participation. There is no problem whatsoever. The fact of the matter is that the government, over a period of time, has been concerned with the provincial representation. The intent prior to this new government was to hopefully enlarge provincial representation so that you would have more representation from the government, which pays 75% of the core programs, the mandatory programs. I see no difficulty in amending the current regulations to accomplish what the city of York would like to accomplish.


Mr O'Connor: So perhaps maybe what we need to be doing is looking at some provincial legislation instead of this private bill.

Is there any different treatment to this council than to the other four that were grandfathered in? Could you just explain some of the difference there for me?

Miss Wysocki: As I understand it, the current board of health is an employer of the employees. It hires and fires. What would happen would be that you would have a board of health that would be divested of that authority. It would not be an employer. The council becomes the employer. The council also then appoints the medical officer of health, subject to the approval of the minister. So what you have is largely a policymaking body without any really legal powers. That is the difference: You have a fully operational board of health. Here in this proposed bill, what you do is you confer that authority on to the city council.

Mr O'Connor: So the regulation then has actually improved the delivery of service through section 59, or through the whole bill, I guess, itself, the Health Protection and Promotion Act, it has actually improved the delivery of service so that this board of health should actually be gaining out of this in the delivery of its service to its citizens.

Miss Wysocki: Yes.

Mr O'Connor: And there is room for citizen representation as it stands now.

Miss Wysocki: Exactly, and I might say that the city of Toronto board of health has resident ratepayers on the board of health, so there is no disability currently to provide citizen representation on the board of health as the city solicitor is suggesting.

Mr O'Connor: Just one more to further that: We have citizens represented. We have --

Miss Wysocki: Provincial representation.

Mr O'Connor: -- provincial representation. We have the elected municipal representation. Is there any provision there that we have people who actually deliver the service be represented, or people who would be consumers of that service?

Dr Schabas: Not unless either the municipality or the minister chooses to appoint any such people.

Mr O'Connor: So there is no requirement.

Dr Schabas: There is no requirement, no, but it is the practice, particularly in the Metro Toronto boards of health, that both the province and the municipality appoint community people to their boards, and that, until a couple of years ago, was the practice in the city of York.

The Chair: I have Mr Ferguson, Mr Wilson and Mr Chiarelli. I would just remind members of the committee that it is now past 11, we have another bill we have to do, another one we need to have some discussion on, plus some organization, so I would ask you to keep your question as brief and to the point as possible.

Mr Ferguson: Mr Chair, I would like to move that we take no action at this time with respect to Bill Pr52. If I could speak to it for a moment, I think the reality of the situation here is not whether or not the municipality is going to carry out the mandatory health programs. In fact, they have to; they do not have any option. That is the basic level of service that is afforded to everybody across the province of Ontario. I think the real issue here is whether or not you are going to trust the city council to appoint its own medical officer of health as well as the associate medical officer of health. I really question whether or not we ought to be doing that at this time, and I think for some obvious reasons.

The other reality of the situation is that having been through the process of trying to attract a medical officer of health for a rather large municipality, I want to tell you, with all due respect to my friend here, that they are not lining up at the door. The regional municipality had to advertise not only nationally but then internationally exactly one year ago, and out of the amount of advertising, they secured two prospective medical officers of health. Two individuals applied for the position. Let me tell you, that is no reflection on the amount of pay, working conditions and/or the region of Waterloo. It is just that the medical profession, by and large, can make a lot more money practising with a private practice rather than with the public service. Those are just the bare facts of life.

In any event, I really question whether or not we want to charge the city of York with this responsibility at this point in time. So I do not think we ought to be saying no flat out. I think we can look at it at a future date.

The Chair: So you are moving deferral then.

Mr Ferguson: Take no action at this time.

Mr J. Wilson: How long a deferral are you contemplating?

Mr Ferguson: I think it is open-ended.

Mr J. Wilson: Are we going to see it at the next meeting or the one after that?

Mr Ferguson: No, no.

Mr J. Wilson: We deferred a matter at the last meeting and it is back at this one, so deferrals are not necessarily that long. My option would have been to flatly vote no, but we will support you.

Mr Ferguson: I can live with that as well. They can always reapply. If they reapply and reapply, we cannot stop them. That is a friendly amendment to the motion, sure.

Mr J. Wilson: I would say you have given them an awfully big hint.

The Chair: Okay. I am not too sure if that constitutes a friendly amendment. I believe it constitutes a major change to the motion. Mr Ferguson, are you withdrawing your motion then?

Mr Ferguson: I will withdraw mine.

Mr J. Wilson: Let's go to a vote, Mr Chairman.

The Chair: Mr Wilson was next on the list and his motion is a motion to defeat Bill Pr52. Any further discussion on that? Mr Chiarelli.

Mr Chiarelli: I think the issue of defeat has relevance to the rationale why this particular bill is being brought forward at the present time. Perhaps you can give some of the background. Were there any compelling problems in the relationship between council and the board at the present time? Is there an unhealthy tension between the medical officer of health or deputy medical officers of health at the present time that would be compelling the community to want to do something that is in the public interest? Or is this strictly a sterile administrative reform that you are trying to bring forward at this point? Perhaps you can give some of the background on that, very briefly.

Mr Bartlett: Very briefly, there is no immediate situation of the tenor you are asking about as the reason it is brought forward at this time. At this time, as I indicated, council basically is the board of health with two other provincial appointees, so there cannot be much of a conflict between the board of health and council. They are largely one and the same at this point in time.

The purpose of the bill -- and it has been a request basically that the city has been making since the discrepancy was discovered in 1981 is to put the city of York in the exact same position so that we can operate in the exact same way that the city of Toronto, the city of Scarborough, the city of Etobicoke and the city of North York operate. We just want to re-establish that parity between the city of York and those four municipalities. That is the intent and, as I indicated, to allow council, with the competence that it needs as to the programs and the cost of those programs, to back away and have the competence to re-establish a citizen board.

Mr J. Wilson: On a point of order, Mr Chairman: I think the way you left it was that Mr Ferguson would withdraw his motion and I would have a motion on the table to defeat the bill. I do not want a motion on the table saying that. I would prefer we just go to the bill itself and have a free vote on the bill.

The Chair: Okay. You want to move towards a vote then.

Mr J. Wilson: Yes.

The Chair: Okay. Sorry, that was my mistake. If that is the case, that puts us into a voting procedure. We will have to end the discussion at that point and put it to a vote.

All those in favour of Bill Pr52? All those opposed to Bill Pr52?

The bill is defeated.



Consideration of Bill Pr38, An Act respecting the Town of Markham.

The Chair: We will now move on to the next bill, Bill Pr38, An Act respecting the town of Markham. The sponsor is Mr Cousens, if he would care to come forward with the applicants.

Mr Cousens: With me, representing the town of Markham, is Robert Robinson, director of legal services; Susan Casella, the heritage chairman for the town of Markham, and Brendan O'Callaghan.

We are pleased to bring forward Bill Pr38, which has a precedent in the city of London, very similar to a bill that went through just before Christmas, and it is also something that exists in the city of Toronto. What it really will do is give the town of Markham some control over the demolition of very valuable old homes. In fact, I have with me two tapes that are going to be shown on the Queen's Park system and have been put together by our own historical society in Thornhill showing some of the heritage homes. So I will make sure that all members of the Legislature have a chance to know it is on. Whether we have time to watch it is another thing.

Mr Ferguson: Are you in it, Don?

Mr Cousens: I am not in it. I checked it through last night.

I have been in a lot of the homes that are shown here and it really makes those who are not from Markham jealous of what we have.

Mr O'Connor: Did you help build some of those homes?

Mr Cousens: No, no. It is beautiful territory, I tell you, and the fact that it has such a loyal good member.

I would also like to point out that this bill will give the town some control over demolition permits. All applications for demolition permits will go before town council for approval. Council may refuse any application for demolition and prohibit any work from being done to demolish or remove the building or structure, and council will also have a chance to have a higher fine for those who go against it.

I am pleased to present this bill. There are a number of demolition permits that are outstanding, so the fact that we have this before the House now and consideration can be given is very important to the people of our community.

Maybe at this point Rob Robinson could comment.

Mr Robinson: As Mr Cousens did state, this act is based on the same act that was granted to the city of Toronto in 1987 and very recently to the city of London. It makes several changes to the existing Ontario Heritage Act, and one in particular which is of much value to the town of Markham.

Currently under the Ontario Heritage Act, if there is a designated property or a property within a heritage conservation district, which is just a boundary and all the buildings are within that district, a person can apply for a demolition permit and council can refuse that permit for a period of 180 days. In fact, they can stretch it out for another 90 days if they delay their decision a little bit. But after those 270 days have gone by, then the person can demolish the heritage building without any other recourse by the town.

Essentially this act would require anyone wishing to demolish a heritage structure to obtain a building permit for a building to go on that site before he proceeds with demolition. It does not take away someone's rights to have a structure demolished. It just forces them to have a concrete plan in place and a building permit before they can proceed with the demolition. That is the primary section of the act, or the most important section.

The fines for demolishing without a permit, the maximum has been increased to $1 million in the same fashion as the city of Toronto and the city of London. There is one other provision which would require a person, once he has obtained a building permit to replace a heritage structure, to commence construction of that building within two years. That is to prevent someone from going through the entire process, getting his building permit and then just deciding not to build.

Essentially, those are the main features of the legislation and I would be willing to respond to any questions the committee may have.

Mr Ferguson: Municipal Affairs certainly has no objections to what is being proposed. In fact, personally I certainly support the bill. I think it makes good sense. There are two individuals here from the Ministry of Culture and Communications who I understand do not want to speak to the bill but are prepared to answer any questions.

Mr Chiarelli: I have not read all the sections in detail, but the comment was made that there are a number of pending situations in the municipality. Will the passing of this bill have any retroactive effect? In other words, are there citizens or business people out there, individual property owners, who may have entered into the process and are in the process at the present time on the basis of their understanding of existing law and existing municipal regulations who will be adversely affected? I am not talking about new occurrences that would happen after the passing of this bill, but I am anxious for counsel in particular to indicate to what extent this may have a retroactive effect.

Mr Robinson: I would not call it retroactive, but it does have immediate effect. If a person out there has a demolition permit for a heritage structure but does not have a building permit and if this act was in force, say, tomorrow, that person would not be permitted to proceed with the demolition of that building. They would have to then go on and obtain a building permit. I do not call that retroactive, but obviously they would have to rearrange their plans for the demolition, if that is what you are asking.

Mr Chiarelli: Yes. I have a related question. Somewhere in the submissions a statement was made that it could take upwards of two years to obtain a building permit. Why should it not also take that long to get a demolition permit? There was a linkage made in one of the submissions. Are some of the applications for building permits pending for which demolition has already been approved, that would be affected?

Mr Robinson: I am not aware of any. There are a number of applications where the person has simply put in his request for demolition, let the 270 days run, and then he can come back to the council and say, "I want this proposal or I'm going to demolish what I've got there." But I am not aware of any of the first situation you --

Mr Chiarelli: Are the people who might be directly affected in the process at the present time, in your opinion, aware of this legislation and have chosen not to file any objections?

Mr Robinson: I assume they were. The notice of the public legislation was published in both local newspapers, as required, for four consecutive weeks, so subject to someone in the audience being here to object, I assume that they are aware of it. We did receive some letters.

The Chair: If I just may comment on that, there is one letter of objection from Mr Henderson. He was contacted and unfortunately he was unable to be here today, but he did want to make sure that his letter was brought to the attention of all the committee members.

Mr Cousens: I think the point that is being raised is a very important one and certainly it is an important one to our own local community at this point, because there are a number of permits that are in the process of running through the clock and if those five historic homes are removed, it is going to have a serious impact on just what was and known to be Thornhill. I thought for sure that Doreen Quirk, the councillor for that area, would have been here today. I know she planned to come.

Further to your question, everybody in our community who is close to the history and what the town is all about is aware that this bill is coming before the House now, because when we tabled it on 20 December, in addition to all the advisement that had been given by the town, there was also considerable further press on it.


Mr J. Wilson: I applaud not only your excellent member of provincial Parliament but the bill itself

I very much agree with the intent of the bill and I do not understand totally the objection that has been put to us in letter form by Mr Henderson, but maybe I will ask you to comment on it. It seems his objection boils down, after a few pages, to process and that the effect of this bill may be to take away some of the due process that every property owner should be entitled to, as he makes the point. In your opinion, how would it do that? My understanding is there is a 180-day lapse. There is still quite a lengthy process there for the property owner to be involved. Could you just comment on that?

Mr Robinson: Yes. Right now, the town could delay someone for 270 days following his application for demolition, and then obviously some discussions go on with the people, or negotiations, whatever other type of avenues the town wants to proceed with. What this act really does is, notwithstanding that that period has gone by, the person must have a building permit for a new building in his hands. I think the person who wrote, Mr Henderson, I guess, is correct -- that may take another year to get a building permit. It may take three months, it may take a year. It depends whether they have to go through rezoning or site plan or other processes.

Mr J. Wilson: In other words, council cannot rule on it until it sees the complete package, which is what you intend to do with the property after demolition.

Mr Robinson: That is right. Hopefully, in the meantime, if the person legitimately wants to construct a different building on site and has all the approvals and wants to go ahead with it, his property rights are there. He can do it. But if it is a two-year process for a more complicated building, I guess, and something happens in the interim, and someone would have liked to move that house to another property, purchase it, but the house has already been demolished because the person went out and did it as soon as he could, then that opportunity is lost. It just gives the municipality the extra period to leave the building there until it is a foregone conclusion.

Mr J. Wilson: I was wondering too, the effects of this bill on small property owners. It seems to me that the process gets a little more complicated if this bill is passed. I agree with the intent, as I say, but what about the cost to somebody who owns a house, a heritage property, that may be in need of demolition? He may be able to get permission to do that, but he also has to submit extravagant plans on what is going to happen to the property afterwards.

Mr Robinson: I am just assuming that anyone who is going to demolish a heritage property -- now, this is a property that has been designated or is in a heritage conservation district.

Mr J. Wilson: Yes.

Mr Robinson: I am presuming that they have plans to construct something in its place. Unless they are just going to demolish the house and leave the property vacant in order to sell a vacant lot, you are correct, there would be some extra costs there.

Mr J. Wilson: How detailed a future-use plan of the site do you require?

Mr Robinson: You need a building permit.

Mr J. Wilson: So they go through the entire process.

Mr Robinson: Yes, the building permit drawings.

Mr Chiarelli: That would be a really expensive imposition on a small land owner, to go through the whole process of detailed building plans, getting an architect or a draughtsperson to put it all together, go through the process, carry the property, pay the taxes and then say: "No, you can't demolish. Come back and apply for a new building permit." Certainly, it would be in the interest of these small property owners if there could be some preliminary process for this type of building permit application where it could be approved in principle without causing the detailed plans and specifications to go through the whole process and then say, "Well, I'm sorry, we're not going to give you the right to demolish." In the meantime, this person is out $30,000, $40,000, $50,000 in plans and engineers, architectural, etc. Is there no way that you could build into the process an approval in principle to a building permit without having to put them through that entire cost? I am not talking about developers; I am talking about Mrs X who is a widow who has been living in this house for 40 or 50 years.

Mr Robinson: The cost that I think you are speaking of is only connected with the building permit drawings themselves. To get a building permit that complies with a code and for which the town will issue a building permit --

Mr Chiarelli: Which is a very significant cost.

Mr Robinson: Yes, but to apply for a demolition permit, that costs virtually nothing. The only costly procedure is when you obtain your building permit. Obviously if you intend to build a new building you would apply for your building permit for the new house, a cost you were going to incur in any event, apply for a demolition permit, and in the normal course that may take three or four months.

Mr Chiarelli: But you are applying for two different things.

Mr Robinson: Yes.

Mr Chiarelli: If the demolition is refused based on the plans that you have provided, the cost of those plans is thrown away and you have to go back to the drawing board and start all over again.

Mr Robinson: You see, we cannot deny a building permit if it complies with the zoning and the building code. If you are allowed to construct a house on your property, you get a building permit for that property. We cannot say, "We don't like that building, go build something else." If it complies with the zoning bylaw and the building code, that person has an absolute right to that building permit and the town must issue it.

Mr Chiarelli: I apologize, Mr Chairman. I stole the floor from my colleague.

Mr J. Wilson: Thank you, Mr Chiarelli. Just to follow your point a little further, what about the effect of resale value? I am not quite sure, to be honest, how the Ontario Heritage Act works now. If you owned a house that is designated now and you are selling it, you do not have any plans yourself for the site but you are selling it to someone else who may have plans for the site. That purchaser may say: "Well, now I've got to go through all this extra expense. We're going to knock a few bucks off the selling price." There may be some effect on resale.

Mr Robinson: There may be, but it really comes down to a question of timing, the timing for this to happen. You only develop one set of building permit drawings and you apply for your demolition permit. There is no increased expenditure in redeveloping a property. It may take another six months to do it, you have to plan ahead to apply for your demolition permit, but the town cannot say "These plans are no good, come back with some new plans" if it complies. We always get the objection that even just a designated property that no one has any intentions of demolishing, "That is going to diminish my property value." But I am not aware of any studies or any proof. I have never seen anything to substantiate that. That is a perception out there, but I do not know that it is true.

Mr O'Connor: Just a comment and one question. I commend the council for recognizing the need for this. I think that living in a small rural community that has a significant proportion of historic and heritage buildings, it is important that we try to preserve them. In fact, one of the heritage communities in my riding, Uxbridge, actually has a walking tour of all the heritage buildings. As a young country we really do not have an awful lot of heritage buildings, so we need to start preserving them for the future so that we can have some history to revisit on occasion.

I know that most new owners realize that they are buying or purchasing a building that has been identified in your heritage buildings inventory, but I just wondered if there is any way that people, when buying one of these buildings perhaps on some sort of speculation, realize that they are actually buying something that would fall under this jurisdiction.

Mr Robinson: A property which is designated is registered on title. In Markham we also have some heritage conservation districts. We have four. Thornhill has been for some time and I believe the one on Main Street in Markham is going to the Ontario Municipal Board.


Mr Robinson: Yes, are in the process. If you are located within any heritage conservation district, there are certainly signs up and everything, but that would not show up on a title search.

Ms Casella: The public is involved in the designating process of a district. A study is done and it is a great long process. There is an awful lot of public input and it is certainly something that is very well known. Somebody coming into a district five years after a district was designated would certainly know it was a district.

Mr Cousens: And the street signs have it. For instance, when you see the video, it shows historic areas and so on.


Mr O'Connor: Thank you. I have supported it. I think it is excellent.

Ms Casella: Also, I should just point out at the moment that there is a difference between a listed building and a designated building. In Markham we have approximately 600 listed buildings, but less than 10% of those are designated, so we are not talking about a great, large number of houses. In a district, each and every building is considered protected by the Ontario Heritage Act, but that does not mean, just because it is protected, that a demolition would not be considered. There are many reasons that a demolition would sometimes even be appropriate.

Mr O'Connor: I think probably in a growing community such as Markham, this is very well advised so that you can preserve some of that heritage in light of the remarkable growth that has taken place there in recent history.

Mr Chiarelli: I have to apologize, Mr Chairman. I am taking a bit of time here, but I am in my confused mode right now. I am trying to come to grips with the linkage between the demolition and the building permit.

You had indicated that presumably there is a bylaw with permitted uses, and in the normal course somebody could apply to obtain a building permit, and that is going to continue. On the other hand, you are saying that you cannot demolish until you get the building permit. Could you make the rationale behind that linkage for me? I am missing the point.

Mr Robinson: Okay. In a normal situation where there are no heritage aspects, you know, just a residential building on a lot, you can apply for a demolition permit to the municipality and it will issue it within two or three weeks, four weeks, however long it takes it. Of course, you need a building permit to construct a new one. The building permit stage is when you come in with your detailed drawings -- structural, mechanical, electrical -- all your drawings, and they have to comply with the Ontario Building Code, which is very technical about how the house should be built. If it is a heritage house and you come in and you want to demolish it, you would be advised that the permit would not be granted until you had obtained a building permit for a new building on the same property.

Mr Chiarelli: What are the extraordinary criteria that would be applied to issuing a building permit on the part of the municipality in these circumstances that do not apply in the normal course?

Mr Robinson: There would not be any. We could not force you to build a new heritage home or a replica on the same property. You could build a different type of house on that property. However, I should point out that in the Thornhill conservation district they do have guidelines for the construction of new houses within that district.

Mr Chiarelli: What is the zoning or the uses that apply in the municipality where a property has been designated heritage?

Mr Robinson: Most of them have been around for so long that they are an urban residential zoning, rural or urban. Most of them are residential zoning, so the properties are not zoned a heritage designation, they are zoned single-family residential and you can build any type of two- or three-storey, single-family dwelling on that property.

Mr Chiarelli: Under what circumstances can somebody apply to demolish a building and build a new building on a heritage site, and the municipality will say, "No, you can't do it"? What are the criteria that will be used to deny demolition when somebody applies for a building permit?

Mr Robinson: I am saying we cannot deny it. We can only deny them on the basis that you do not have a building permit in your hand. Once you have had your plans approved --

Mr Chiarelli: But how does that generate the preservation of the heritage property if you cannot deny the demolition?

Mr Robinson: Because it holds up the demolition until such time as the person does have the building permit in his hands. A lot of property owners out there would like to demolish it and have it off their site or use it as a bargaining chip when they come to the municipality.

Mr Chiarelli: So it does not preserve the heritage building, it simply preserves an optional use.

Mr Robinson: No, it can preserve that building for another, say, six months or a year, and in that year something may happen. The owner may decide to sell it to another person who wants to maintain it as a heritage property. There are all kinds of old houses in Markham that you see being moved from one property to another on steel stakes. They are being moved to other properties. The town has sponsored a heritage subdivision which has about 40 lots on it and old houses are being moved to this single subdivision in the town of Markham. So there are a number of ways that they can be preserved. As I am saying, we are not taking people's property rights away.

Mr Chiarelli: So in fact I am right when I assume --

The Chair: Can I just make one suggestion? Just one more question, Mr Chiarelli, because you snuck in a couple there while my attention was turned; just in terms of keeping things moving, okay?

Mr Chiarelli: Okay. I was not sure what the limit of questions or the time was, but thank you, Mr Chairman.

The Chair: We do not normally like to limit, but with time constraints today.

Mr Chiarelli: I appreciate your comments.

I am right in assuming that this new process really does not legally give you the right to preserve the building in any way; it just changes the process.

Mr Robinson: That is right. We may be able to stretch it out a bit longer, but we cannot insist that you keep that building. If they have a building permit, they go ahead.

Mr Chiarelli: Thank you.

The Chair: Are there any objectors or interested parties here? Seeing none, any final statements? I take it members are ready to vote on this bill.

Sections 1 to 10, inclusive, agreed to.

Title agreed to.

Preamble agreed to.

Bill ordered to be reported.


Consideration of Bill Pr46, An Act respecting the Wolfe Consortium for Advanced Studies Inc.

The Chair: Just before you leave, we have two other items on the agenda that we need to deal with. One is Bill Pr46, which is the Wolfe Consortium for Advanced Studies Inc. You will remember that that bill was brought forward. It was to be deferred until the Ministry of Colleges and Universities could get back to us on a statement. The clerk has checked with Mr MacKay, who was before the committee, and I was just wondering if you could comment to the committee on what Mr MacKay said.

Clerk of the Committee: As the Chairman stated, I did speak with Mr MacKay last week to ask what the status of that matter was in the ministry and was informed that the report of the Ontario Council on University Affairs to the minister is still under his consideration and he therefore requests that the deferment continue.

The Chair: Did we get any indication for how long they would like the deferment to continue?

Clerk of the Committee: No, there was no indication of a time frame.

Mr J. Wilson: I believe my comments in agreeing to deferral, though, were that we would report back as quickly as possible. Could we have some further explanation? It is because OAC's report is not in? Is that what I understand?

The Chair: OCUA.

Mr J. Wilson: Yes. I used to sit on the damn thing; I cannot remember what it is.

The Chair: No, the report is in to the minister. The minister is still considering it.

Mr J. Wilson: Any indication perhaps from the government representative here of when the minister might be prepared to comment? I think this group has been waiting a considerable amount of time.

The Chair: You are quite right about that. We could attempt to maybe request a commitment in writing from Mr MacKay for a definite date and hopefully have that for the next meeting here, then we would know when it would be coming forward.

Mr J. Wilson: That is agreeable.



The Chair: The other point of business is organization. As you remember, at our first meeting I introduced Avrum Fenson from the legislative research service. He is the one assigned to this committee. I neglected at that time to give Mr Fenson some time to explain his role and explain some of the committee's mandate and role concerning regulations. So we have Mr Fenson back with us today and we are going to allow him a few minutes now just to discuss those issues.

Mr Fenson: In the 1968-69 session the Regulations Act was amended to provide for a committee of the Legislature to review regulations. Regulations are laws made by an individual, often the minister or a head of an agency or a body, usually cabinet, and made under the authority of a statute which specifies who is to make regulation and precisely under which topics that person or body may make regulations. They are also known as subordinated legislation or delegated legislation or statutory instruments.

They are very important in the administration of a lot of matters in the province. The volume of regulations at any given time is of the same order and magnitude as the volume of our legislation. The last Revised Regulations of Ontario occupied about 8,500 pages. Something in the order of 700 or 800 regulations comprising 1,000 or 2,000 pages in the Ontario Gazette are made every year by different ministries.

This committee and its predecessors in the past would engage outside counsel to review the regulations for them. A few years ago, legislative research service was given the task of reviewing regulations on behalf of the committee and providing the committee with a draft report. We are catching up a backlog of unreviewed regulations now.

Regulations: Some of them are very small, just one-paragraph amendments to other regulations, and others are very big, such as OHIP's fee schedule, which is a regulation; the Ministry of Health's list of drugs. A regulation might be something simply saying that in a certain district health unit all animals must be inoculated for rabies from a certain date. Some of them have very brief effect. Some of them have very long administrative effect.

The standing orders provide nine guidelines with which the committee is to have regard when it reviews regulations. They have their origin in old rules of construction which were put together in their present form in the 1930s in England and have been adopted, with minor changes, by other legislatures. They now appear in the Legislative Assembly's standing orders.

I am sorry, I meant to pass around a copy of the guidelines. One states that regulations should not initiate new policy but simply give details which help put effect to the legislation. This committee has not had occasion to report any regulations for violation of that.

The second is, "Regulations should be in strict accord with the statute conferring of power, particularly concerning personal liberties." There have been no problems with regulations interfering with personal liberties, but the committee has reported regulations which were not in strict accord with the statute, generally in one of two ways.

One way is that it is made by the wrong authority. Sometimes a statute will say, for example, that the minister may prescribe forms for the administration of certain programs by way of regulation, and the Lieutenant Governor in Council may, for example, make regulations designating categories of persons who are eligible to apply for certain grants. Sometimes there will a regulation which includes both the forms and the grants and it might be made by one. So one aspect of the regulation was made by the wrong maker.

Another occasion in which regulation might not be in accord with this statute is if it is made on a topic not specified by the statute. A regulation might govern, for example, the marketing of wine in the Niagara region and it might be made under a statute which says the minister may make regulations specifying the manner in which the wine is to be sold. There might be a regulation which requires wine producers to maintain and to file certain records of the volumes of wine produced which is not specifically provided for. That sort of thing will be noted, and generally the ministry agrees and undertakes that the next time it is revising the statute to give itself the appropriate power.

The third guideline states the regulation "should be expressed in precise and unambiguous language." We have not been in the practice of putting in draft reports to give to the committee typos which do not create genuine confusion, but sometimes there is a serious confusion as to whether a 1.5% late fee on funds to be given to a pension fund under a statute is to be paid monthly or whether it is 1.5% per year calculated each month. So there have been some problems with serious financial administrative consequences resulting from ambiguous language.

The fourth guideline states, "Regulations should not have retrospective effect unless dearly authorized by statute." Generally, in the whole field of construction of law, analysis of law, there is a suspicion of legislation or regulations which act retrospectively, which sort of change the rules backwards in time, so that people find that they were doing something legal or did not have an obligation on a certain date; a year later they find that they were wrong.

It is generally recognized that a Legislature has the power in law to do that, but this guideline reflects a suspicion of this in regulations and requires that if a regulation is made with retrospective effect, it may be done so only if the statute in clear words says that it may be done. A few statutes do that; in particular, statutes having to do with the collection of tax, because a budget will determine the new rate of tax and the statute is not amended until some months later, so the new taxing provision will be made in the form of regulation made with the authority to give it retrospective effect.

We have had occasion to give to the committee quite a large number of regulations which seem to violate this rule against unauthorized retrospectivity. Sometimes it is just the result of a regulation being filed with the registrar of regulations too late; sometimes it genuinely purports to go back a year without having the authority to do so. So that has been a large category.

The remaining categories are ones under which we have found few, if any, regulations that violate. Regulations should not impose a fine, imprisonment or penalty. They should not shift the onus of proof of innocence to a person accused of an offence. They should not impose any kind of tax and they should not establish a judicial tribunal or administrative tribunal. In other words, regulations are not supposed to usurp the authority of courts. They are not supposed to interfere with personal liberties and they are not supposed to usurp the right of the Legislature. It is a form of law which has the standing of law but has to be made in such a way that it does not violate the power of the Legislature and other bodies to which enormous powers are given.

This committee is charged with the task of checking the regulations. The procedure for making a regulation is that the ministry will draft it, sometimes with the assistance of legislative counsel. It will go to the cabinet committee on regulations and then it will go, with proof that it appears to have been made by the right authority, to the registrar of regulations, who is a senior legislative counsel. The registrar then causes it to be filed and it is effective from the date it is filed unless the regulation itself specifies another date. It then has to be published in the Ontario Gazette within 30 days.

It is after the regulation is published that the committee looks at it. The committee is not given the opportunity to stop the regulation in its tracks. Also, the committee is not given the power to disallow the regulation. It is not even invited by the standing orders to propose that the Legislature disallow regulations. In some jurisdictions there is such a disallowance power, but there is not one in Ontario.

Another thing which the committee is not invited to do by the standing orders is to examine the policy behind the regulation or the statute which enables a certain body to make the regulation. The committee is simply to make sure that the regulation, as published, is made within the terms of these guidelines.


As I said, other jurisdictions do have more extensive procedures for dealing with regulations, sometimes before they are made. In Australia, for example, in the federal Parliament and in some of the states, there is an obligation that any regulation which affects an identifiable body or organization or group of persons must be preceded by public notice and an invitation to all parties concerned to give their deposition. If the regulation-making body fails to do this, the Legislature can disallow it on those grounds alone. In Ottawa, in the federal Parliament, and in some of the western provinces and Quebec, there is provision for disallowance on a motion in the House, sometimes originating from a proposal by a committee, though in fact that very rarely happens.

Apart from reviewing the regulations, this committee has had occasion to engage in other activities involving regulations. Sometimes it would arise out of a research officer such as myself coming to the committee for instructions on a certain point. I came to the committee last year to ask whether the provision against retrospectivity included regulations which did not say they had effect before the date on which they were made but had reference to events that took place before the regulation was made, such as retrospective adjusting of fees to be paid by residents in nursing homes or amounts to be paid by the ministry with reference to residential care; also salary adjustments. Usually there was not authority in the statute for regulations which referred to events in the past, and ministries to which I and my predecessors wrote querying certain regulations denied that it was a violation of retrospectivity.

I brought the question to the committee, which decided that regulations like that should not be questioned under that head, so now I present the committee, in draft reports, only with regulations which actually state that they mean to take effect on a day earlier than the date on which they are made. It is sometimes the result of late filing; it is sometimes the result of just a mistake on the part of the body administering.

The committee also took a general look, a broad look, at the whole regulation-making procedure and issued a report to the Legislature in 1988 in which it proposed a number of changes, including adding a disallowance power for regulations which violated the guidelines and also beefing up these notice procedures which appear in a few statutes -- but only in a very few -- which require the body making the regulation to consult with the public before making the regulation. It was quite an extensive report and the response from the Attorney General was only cautiously positive, and in fact no action has been taken on the recommendations made there.

The committee also put to one of my colleagues the question of why it is, when a bill is passing through the Legislature, the Legislature does not have the opportunity to see the regulations which are referred to in the bill. For example, the police services bill refers to detailed regulations which will govern pay equity schemes and the circumstances under which police officers may withdraw guns, and yet the regulations specifying these things were not available. The information given us was that it is impractical. They are simply not ready at the time and it is simply not done anywhere. But that is the sort of concern which sometimes is raised by the committee.

The whole activity of dealing with regulations is one which interests certain organizations. There is a Commonwealth committee on delegated legislation which has actually had conferences, one in Australia in 1980, which was attended by the then Chairman of this committee, and there was one in Canada in 1983 and in England in 1989. In Australia in particular, there is a good deal of interest in controlling and supervising the making of delegated legislation, because its importance is often underestimated. It is not noticed much by the public, it is not subject to public debates, or at least debates which- are publicly attended, and yet it governs in great detail much of the business in the country, in the province.

Mr J. Wilson: Mr Chairman, if I may interrupt, I have to go and I think if I go, then there would not be any representation from our caucus. I very much appreciate the presentation, in all sincerity, but perhaps we could come to a conclusion.

Mr Fenson: If there are any questions I will be glad to answer them.

Mr J. Wilson: I am glad we got to this point. I was just sort of wondering generally, what is the volume of regulations, on average, that we might consider here, having seen none to date?

Mr Fenson: Each year there are something in the order of 800 regulations made under about 150 statutes. Perhaps half the regulations are made under four ministries, which include Health, Municipal Affairs. I can give you the top --

Mr J. Wilson: No, that is okay; generally.

Mr Fenson: It is in the order of about 800. Many of them are just tiny amendments to existing regulations, but some of them are very large and new regulations.

Mr J. Wilson: But we only examine those if there is an objection after publication in the Gazette, right?

Mr Fenson: What my practice has been in serving the committee is to read -- I or colleagues of mine in the legislative research service -- all the regulations and make inquiries of ministries where we think there is a problem, a written inquiry to the legal services branch of the relevant ministry, and look at its response and decide whether or not to put it in the draft report. Typically, half the problems are explained away in some way, and about half, something in the order of 25 or 30, remain reported in the draft report, which then is the basis for the committee's report.

Mr O'Connor: You mentioned the Gazette too.

Mr Fenson: Yes.

Mr O'Connor: Do regulations go through the Gazette then?

Mr Fenson: Yes. After they are filed with the registrar of regulations, they are published in the Gazette. They are required to be published within 30 days of being filed, but the filing date is their effective date.

The Chair: Any other questions at this time for Mr Fenson? Seeing none, thank you very much for bringing us up to date on that issue, certainly bringing me up to par.

Seeing no other business, I think we can adjourn. Just a note: The clerk informs us that we do not have any business for next week so we will not have to meet then, but quite possibly we will be back on in two weeks.

The committee adjourned at 1158.