Wednesday 2 June 1993

City of London Act (Vital Services), 1993, Bill Pr13

Irene Mathyssen, MPP

Robert A. Blackwell, solicitor, City of London

Rev Susan Eagle, community officer, East London United Church Outreach

Navy Chann, settlement counsellor, Cross Cultural Learner Centre

Pat Hayes, parliamentary assistant to the Minister of Municipal Affairs

Richard Doherty, policy adviser, local government policy branch, Ministry of Municipal Affairs

Tom Melville, legal counsel, Ministry of Municipal Affairs

City of London Act (Covent Garden Market Corporation), 1993, Bill Pr4

David Winninger, MPP

Robert A. Blackwell, solicitor, City of London

Optimist Club of Kitchener-Waterloo Act, 1993, Bill Pr85

Rudolph Kominek, solicitor, Optimist Club of Kitchener-Waterloo

Mike Kruk, past president, Optimist Club of Kitchener-Waterloo

Town of Gravenhurst Act, 1993, Bill Pr19

Daniel Waters, MPP

A.R. Black, solicitor, Town of Gravenhurst

David Fraser, intervener

James Walton, president, Beaumaris Fishing Club

Charles Birchall, legal counsel, Beaumaris Fishing Club

Shawn Wilson, intervener

Committee budget


*Chair / Présidente: Haeck, Christel (St Catharines-Brock ND)

Vice-Chair / Vice-Présidente: MacKinnon, Ellen (Lambton ND)

*Eddy, Ron (Brant-Haldimand L)

*Fletcher, Derek (Guelph ND)

*Hansen, Ron (Lincoln ND)

*Hayes, Pat (Essex-Kent ND)

*Johnson, David (Don Mills PC)

*Jordan, Leo (Lanark-Renfrew PC)

Mills, Gordon (Durham East/-Est ND)

*O'Neil, Hugh P. (Quinte L)

*Perruzza, Anthony (Downsview ND)

*Ruprecht, Tony (Parkdale L)

*In attendance / présents

Substitutions present / Membres remplaçants présents:

Cooper, Mike (Kitchener-Wilmot ND) for Mr Mills

Harrington, Margaret H. (Niagara Falls ND) for Mrs MacKinnon

Clerk /Greffière: Pajeska, Donna

Staff / Personnel: Mifsud, Linda, legislative counsel

The committee met at 1006 in committee room 1.

The Chair (Ms Christel Haeck): Ladies and gentlemen, I'd like to call the meeting to order.

Interjection: The committee.

The Chair: The committee, yes. I'm used to meetings, not committees.


Consideration of Bill Pr13, An Act respecting the City of London.

The Chair: I would like to advise you all that Bill Pr88 has been deferred till another meeting, so we will move directly into Bill Pr13, An Act respecting the City of London. I'd like to introduce the sponsor, Irene Mathyssen, and the applicant is Mr Robert A. Blackwell, the city solicitor for the city of London. Perhaps the applicants would like to introduce themselves and then make any comments.

Mrs Irene Mathyssen (Middlesex): I'm Irene Mathyssen, MPP for Middlesex, and this is Mr Bob Blackwell, and he is the solicitor for the city of London. I would like to thank Mr Blackwell and the city of London for Bill Pr13, An Act respecting the City of London.

Briefly, this bill is in response to a problem regarding some London tenants that has gone on for far too long and has negatively impacted upon the quality of life for those same tenants. Briefly, Madam Chair and members of the committee, the tenants of Cheyenne have lived in unacceptable conditions for a number of years. In addition to little or no building maintenance, infestations of cockroaches and harassment, the tenants have been forced to face shutoffs of vital services -- hydro and natural gas -- because of the landlord's failure to pay the utility bills.

In an effort to address this failure on the part of the landlord, the community worker for that area, the Rev Susan Eagle, and the tenants set up a trust fund, paid rents directly to the trust fund and were able to pay the hydro bill, a matter of about $6,000. Rev Eagle is here today with Navy Chann, a tenant at Cheyenne, and I believe they're going to address the committee and give you a sense of what the conditions are like there.

Unfortunately, despite the efforts of Rev Eagle and the tenants, the landlord challenged these tenants for so-called non-payment of rent.

In addition to this, tenants are now facing a threatened shutoff of natural gas. The order was issued in early May.

This Bill Pr13 is in response to the very difficult situation faced by these tenants.

I believe Mr Hayes is going to address the specifics, as is Mr Blackwell. I'll certainly be pleased to answer any questions you have, but I'd like to turn it over to Mr Blackwell.

The Chair: Yes, Mr Blackwell, if you have any comments, please, on behalf of the applicant.

Mr Robert A. Blackwell: I do. Thank you, Madam Chair. First of all, I'd like to say that London is not the first municipality to seek private legislation to deal with this problem. The city of Toronto has had legislation, not exactly the same as this, for a number of years under which it deals with this type of situation. I believe Hamilton also operates under a similar set of laws, and the city of Ottawa last year obtained special legislation which we used as a basis for framing our legislation. However, we would like to think that maybe we have taken ours one step further and maybe those who come along behind us will build further out yet.

Before going into the bill itself, I'd like to make one point and stress one point, and that is that the whole object of the legislation is not to see that a provider of a vital service gets paid. The municipality does not want to be seen or be cast in the role of simply being a bill collector for a public utility or a natural gas provider or anybody else who's providing a vital service.

Essentially, we see the object of the bill as reinforcing the obligation that a landlord has to provide very basic services and amenities to people to whom that landlord rents, and really, that's the essence of it. We see it not as a private issue between the municipality and the landlord or the service provider and the landlord, but we see it as having a substantial public interest because of the number of people who are involved. I stress that because of things that may come along later on in the consideration of this bill. So I want to put that in the forefront.

For that reason, we have taken the bill much beyond the point of simply authorizing us to pay for utility services which are cut off where there are arrears. We've taken it to the point of imposing an obligation upon the landlord to provide the service, to prohibit the landlord from interrupting the service unless there is a necessity for doing so for purposes of repair. We've included in the bill an obligation on the part of a utility or a service provider to continue to provide service until it gives notice to the city that it is going to discontinue service.

We've put in the bill a provision for an official of the city, appointed by bylaw, to administer the scheme, the ability to give orders and directions about restoration of services, and we've provided in the bill for the redirection of rents so that a landlord isn't unjustly enriched by continuing to receive rents in a situation where the utility is not paid for and the utility is cut off. So it is a very comprehensive scheme and it works together and I would encourage the committee to pass the bill as presented with all parts intact.

What I propose to do is to go section by section and simply point out the essence of it. The bill is there to be read and I take it that the committee has some understanding of the bill. Then, if there are any questions, I will certainly respond to them. I can pause at the end of each section or simply go through and then allow you to deal with the bill as a whole, as you direct.

The Chair: You're definitely fully entitled to make any comments that you require. After you, then there will be options for anyone else who is interested to make any comments and then the parliamentary assistant for Municipal Affairs will be making his. So if you can synopsize as well as you possibly can, the Chair would appreciate it.

Mr Blackwell: I think I've explained the substance or the thrust of the bill and its object.

Section 1 is simply a standard definitions section which simply amplifies certain portions of the bill.

Section 2 would authorize the city to pass bylaws which would require a landlord to provide an adequate and suitable supply of vital services to premises that are rented as residential dwellings. It would require a supplier to give notice to the city if it intends to interrupt the service because of non-payment. It would prohibit a supplier from ceasing to provide a supply of service until notice is given to the city. It would require the supplier to restore the service when it's directed to do so by an official named in the bylaw. It would prohibit anyone from interfering or attempting to interfere or obstruct, in effect, the administration of the scheme and the bylaw.

It would provide for penalties in the event that there is a contravention of any of those provisions that I have just mentioned, and because "vital service" really is essential on a day-to-day basis, we go to the extent of seeking to have an offence for each day that there is a contravention of the bylaw, because we view it as a very important mechanism. As well, we reach beyond the corporate veil to strike at any director or an officer of a corporation who participates in a contravention of the bylaw. It would also authorize the city to directly enter into agreements with suppliers to continue the supply of the service.

This scheme would only apply to landlords who take on the responsibility of paying for and supplying a vital service. Obviously, if a tenant has a direct contract with a supplier and does not pay for that, then the tenant of course has to take that responsibility and the city doesn't intervene in this scheme.

Under subsection 2(3), we simply seek to be able to classify certain types of buildings, certain areas of the city to which the bylaw might or might not apply, to establish a standard for vital services so that it is clear what the responsibility of the landlord and the supplier of the utility is and what the expectation of the tenant can be in this scheme.

Again, it would prohibit a landlord from interrupting a vital service unless there is some necessity for doing so and it would deem the landlord to have caused the interruption of a vital service if the landlord has not paid for the utility or the services as required.

The bill then goes on simply to deal with matters of the nature of the notice that has to be given and the time limit within which it has to be given. There is a provision for inspection to ensure that in fact the service is being provided or to investigate the circumstances under which a service may have been interrupted or to ensure that a service has been restored. There is protection against intrusion into a dwelling unit that's actually being used as a habitable dwelling.

Then the bill goes on, in section 3, to provide that to the extent that the city pays for an outstanding utility, the city has a lien against the property, plus an administration fee of 10%. That amount can be put on the taxes and collected in the same way as taxes are collected. There is a provision, however, that if there's a dispute as to the amount owing, there is a mechanism for appeal there.

The money which is received by the city from rents is only to be applied towards the payment of vital services that are in arrears, and the balance, if any, would be turned over to the person entitled to that money.

Finally, there is a standard immunity section, so that while the corporation is responsible for any misadventures caused, employees of the city or agents acting in good faith have protection.

Essentially, that is it. I'm anticipating that there may be something advanced on behalf of the Ministry of the Attorney General with which I do not agree. I would like the opportunity, once that is done, to respond to that.

The Chair: That's not a problem. The parliamentary assistant will have some comments to make after Ms Eagle has had a chance to make her comment if she feels she would like to.


Mrs Mathyssen: I would like to say for the record that the Rev Susan Eagle has been a tireless advocate for the people of Cheyenne and her work is very important and is to be commended. Navy Chann, who sits on Rev Susan Eagle's right, is a resident of Cheyenne and she too has worked very hard in terms of translating and explaining to the people who live in the building what is happening to them and how they can help themselves, and I think that's a very important and key part of all this.

The Chair: I appreciate your comments, Ms Mathyssen. I think we all recognize that we have some very committed workers out there on behalf of vulnerable and needy people. Ms Eagle, perhaps you'd like to make your comments at this point.

Rev Susan Eagle: Thank you, first of all, for an opportunity to come and make a presentation to you today. I have worked in the Cheyenne buildings in London for nearly nine years now, but the matter that brings us to you today is something that began last December, when the tenants were informed by the public utilities commission that the electricity would be shut off in the building in about a couple of weeks, so they could look forward to spending Christmas in the dark.

At that time the community met, and we also met with some folks to give us some advice from the PUC, and we set up a trust fund. The trust fund experience, though, for us was a very anxious time, because it had to be done voluntarily by tenants, and this was done under threat by the landlord that he would first of all evict tenants, which he attempted to do, but also to suggest to the tenants that they were being very bad people and very bad tenants by supporting the trust fund.

I work with a community of folks for whom their residence in Canada has been fairly short. They're very anxious to be good citizens in Canada. They come from communities where there has been harassment, where they have even lost family members, so the threat and harassment by anyone in a position of authority is taken very, very seriously. Yet they persevered in terms of creating the trust fund and attempting to get the public utilities bill paid. By the time we closed the trust fund a month ago, they had submitted $10,000. No, pardon me, it was more than that. It was close to $18,000 that they had paid to the PUC. Unfortunately, the bill kept going up.

In February, we added the gas bill to that. We were unable to even manage the gas bill, and the health department stepped in and paid that.

The impact on the community, though, is something that I relate to, and children come home on a daily basis not knowing whether there will be electricity, whether there will be heat in their homes, whether or not their families will have had to evacuate because they have been unable to stay in the building. So the stress on the community since last December has been significant, as well as the stress on the families of dealing with a landlord who has on an almost daily basis threatened them with eviction.

What we're looking for is the kind of protection that tenants can have to know, first of all, that they are not vulnerable to having a notice posted on their door to suddenly find that they are going to be homeless, but also to know that there is protection for them legally, that they don't have to take the responsibility for getting those kinds of bills paid, that there's something a little bigger than them out there dealing with the landlord.

I brought some pictures with me today which I'm just going to pass around, because I think you need to see the kind of conditions that we have been working in and that gives you a little sense of the kinds of conditions.

The landlord has not been responsible or responsive to simply pressure. It has taken legal pressure. Back in 1989, the only time we got any repairs done was when the city managed to levy a $6,000 fine against the landlord. It does take some clout by someone to get some landlords to pay attention, and I'm not saying all landlords are bad landlords, but this kind of legislation would protect tenants from the bad landlords.

I'd like to introduce Navy Chann. In fact, she is not a tenant at Cheyenne, but she spends so much time with me there that I think people think we're both tenants there. She is a translator at the Cross Cultural Learner Centre and also a settlement counsellor, so she has also dealt with tenants on a day-to-day basis who are feeling the stress of trying to cope with these conditions.

Ms Navy Chann: Thank you for giving me an opportunity to come and speak to you today. What I see is that they have a fear in terms of they are in the middle. They've got a squeeze from the landlord and also from the system, from the utility and so on.

Like Susan had mentioned before, they came from a place of authorities that they are afraid of and it's very hard. If you expect them to go after the system and go to the court and so on, it won't happen. It's very hard for them to do that, because they don't know the language, even if they read and write in their own language. A lot of them cannot read in their own language. That's why I'm involved in that, to help them and bridge them with other procedures that can help them, and I would really appreciate, on behalf of the communities, that this bill can help them in the future.

The Chair: We have at this point questions that members would like to ask, and I will call on Mr O'Neil first.

Mr Hugh O'Neil (Quinte): Madam Chairman, will the owner of the building be appearing this morning?

The Chair: I do not believe at this point he is on the list of interested parties to come forward. We will ask if there are other interested parties, but he or she is not listed.

Mr O'Neil: I guess I'd ask, if the owner of the property is refusing to pay some of these utility bills, what reason is he giving for this?

Rev Ms Eagle: What reason is the landlord giving for not paying the utility bills?

Mr O'Neil: Yes.

Rev Ms Eagle: I wish you could get him to answer that question.

Mr O'Neil: In other words, is the building in receivership? Does he owe money on the mortgage? Are the rents not being paid by the tenants? What's happening there?

Rev Ms Eagle: The tenants have been very conscientious about paying their rents, and as I mentioned before, they were very concerned about not paying the landlord the rents that were due because they did not want to look like bad tenants. They have been quite conscientious.

The landlord stopped paying most of the bills last summer after we had a conditional agreement to purchase the buildings, because we were making an application to the Ministry of Housing to turn them into co-op. We were not successful in our application to the Ministry of Housing, and when we discovered that in October, we also discovered he had paid no bills since last June. But during that time, he had collected fully all the rents and continued to do so until December. When faced with the imminent PUC shutoff, we then set up the trust fund. He is not very good at showing up at court. Even when he evicts a tenant, we can't even be guaranteed that he will show up to defend his own actions.

Mr O'Neil: Again, I guess I'm just trying to get at what the root is. In other words, there must be a little more back of this. If he realized that you were coming here today, has he not given you any reasons why, again, he has not paid these utility bills? Is he in arrears on taxes? Is he in arrears on mortgages? Are there any rents that are due to him? Do you know what the figures are there? In other words, there must be more background back of it. I'd like to get a little clarification.

Mr Blackwell: My understanding is that he is in arrears on a lot of things -- taxes, mortgage payments, utilities. I don't think that he is an individual who is particularly interested in the property. My understanding is that the mortgage company, although it is owed a lot of money, is not prepared to take proceedings because it just doesn't want to step into the property that he has at the present time. We've had problems from a property standards standpoint with him. This has been an ongoing problem for the last three years.

I might say that he's not the only one in town. About five years ago, we had a different property where we had the same problem. There is in every municipality some individuals, thankfully a minority of them, who will buy a property, put people into it and figure that the only thing they're in there to do is to collect the rent and that everything else will take care of itself, that the property taxes will pay themselves, that the utilities will pay themselves and that the building will repair itself. Those things just don't happen but those people don't understand that. They're in it for the buck and they get the buck out of it. Whether that is that person's approach to this property or not I don't know, but we've had a very dismal record with him and it's just an ongoing problem.


Mr Tony Ruprecht (Parkdale): We of course sympathize, Ms Eagle, with the plight of some of these tenants. I'm just thinking about the nature of this bill here. I guess the first question I had is, the pictures you showed us here that are making the rounds, are all these units inhabited or are some of these units empty?

Rev Ms Eagle: The pictures you're looking at are from two units, unit 25 that we just moved the tenant out of on Sunday -- he had lived there for about 10 years and he was an English-speaking tenant -- and the other unit you're looking at is unit 18, where we have a Cambodian woman who lives there with her three children. She has also been the person who filed the human rights complaint against the landlord three years ago, which is now being dealt with by the Ontario Human Rights Commission. So you're looking at two residences which have been inhabited up to now.

Mr Ruprecht: So it's been empty for a week. Is that it, roughly?

Rev Ms Eagle: For a week, the one. The building itself, though, has lost tenants over the last three years as people have found that it has become more and more difficult to live there. As they have learned English, they have looked for better places to live. Up to now, there has been some need for the community to try to live together because they were able to give assistance to each other.

Mr Ruprecht: But that wasn't my question. Let me move on to my other question here and that is, are we talking about individual tenants harassed by the landlord, not the whole building? Is that what we're saying here, or both? This bill would cover, I would assume, both aspects: individual harassment plus a whole building change when the landlord may not be able to pay for the whole building. This bill will cover both, is that correct?

Mr Blackwell: Yes, this bill will cover both situations. It will cover the situations where, for example, each apartment or dwelling unit is separately metered but the landlord pays the bill, and it will cover the situation where there's one meter for the whole building and everybody --

Mr Ruprecht: Because we've had a similar incident in Parkdale and that's why I sympathize, in a way. But I want to get this clear. I guess I'll have another question later on in terms of how this bill is different from the city of Toronto bill, because you said it goes beyond it, but I'll probably have a chance to ask that later. Ms Eagle, if we're talking about individual harassment here, and let's assume we closed that part of it, how would you recommend then that if tenants do not pay -- either they're unable to pay because of unemployment, and of course that's a different set of rules here, but if they're unable to pay, what recourse do you see? I'm not even sure if you could answer this question or not --

Rev Ms Eagle: Yes, I can answer it. If a tenant is not paying the rent --

Mr Ruprecht: Right, for whatever reason.

Rev Ms Eagle: -- for whatever reason, then the landlord has the same avenue open to him that every landlord has open to him, and that's under the Landlord and Tenant Act and that's to evict the tenant and rent the premises to a tenant who will pay. Lots of landlords do that. I certainly know the process for evicting a tenant. This piece of legislation does not affect a landlord's right to evict a bad tenant.

Mr Ruprecht: Yes. What we're simply talking about here is that the vital service is being maintained, essentially. Thank you very much.

Mr David Johnson (Don Mills): Perhaps to the solicitor: I'm looking at clause 2(3)(b), which indicates that this bylaw could be designated for a specific area within a municipality. Does that pertain to definite planning areas, or could that be specific to an individual building?

Mr Blackwell: That could be specific to an individual building. It could correspond to planning areas. It's admittedly a somewhat broad term, but certainly there have been cases decided under the Planning Act where the word "area" can be as precise as a single parcel of land. At this point, I'm not sure that would be the approach that London city council would take. I think that rather than dealing with it on an individual basis, the approach probably is to create a bylaw which is there standing and to administer it evenly as these situations arise.

Mr David Johnson: I interpret from that then that it's your opinion that it's the intent of the city of London to designate a uniform bylaw right across the whole city. Is that what you're saying?

Mr Blackwell: I believe that's certainly the approach that the administration would take in its recommendation to city council.

Mr David Johnson: Okay, the administration. Do I get the picture then -- let me ask another question first. You indicated that there was one unit that was vacant in this building. Are there other units that are vacant?

Rev Ms Eagle: We've had a steady exodus from the building over the last three months as people have become increasingly concerned that they would not have heat and hydro for their children.

Mr David Johnson: How many units are there in the building altogether?

Rev Ms Eagle: There are 40 units, 20 in each of the two buildings.

Mr David Johnson: How many would be vacant?

Rev Ms Eagle: About half of them are now empty.

Mr David Johnson: About half of them are empty. We have a picture, I guess, of a landlord who's probably not covering costs then more than likely.

Rev Ms Eagle: You have a picture of a landlord who appears to be his own worst enemy.

Mr David Johnson: Yes, but he's probably not covering costs. What's the vacancy rate in the city of London at the present time? Do you have that kind of statistic, anybody? I think here in Metropolitan Toronto it's about 2.2%. I think there are some people in the Niagara area who indicated it was 5% to 7%, actually, last night.

Rev Ms Eagle: Not of affordable rents.

Mr David Johnson: I'm talking the total vacancy.

Mr Blackwell: I don't have that statistic right offhand. Ms Mathyssen has suggested 3%. I was going to say 5%. It's probably somewhere in there.

If I could make one comment, as a building empties of tenants, the maintenance then starts to go down and it's almost a self-fulfilling prophecy that the building becomes derelict.

Mr David Johnson: I think we're all very understanding in terms of the plight of the tenants, and nobody wants the tenants to be without heat or electricity at Christmas time or any other time of the year. Has there been any discussion in terms of the plight of the landlords as the vacancy rate climbs? I know that landlords in my riding are not covering costs. Some of them are not covering costs. The vacancy rate is going up and the value of their property has gone down over the last couple of years. It's been a real problem for them. I'm wondering if the city of London is having discussions along that vein as well.

Mr Blackwell: We haven't had any formal discussions with landlords, nor have they approached the city to indicate that they are facing any plight that would put them in a real money crunch. I would suggest there are techniques which landlords can use where they are not getting rent returns to cover costs. One would be to have a building separately metered and put the obligation for paying for these services perhaps on tenants. That would be one approach to ensure that those who get the supply are paying for the supply. But to answer the question, we have not been approached by landlords indicating that they are unduly suffering.

Mr David Johnson: Has the city of London looked at section 31 of the Planning Act, which permits municipalities under emergency situations to do, as I understand it, precisely what it is you're intending to do through this bill?

Mr Blackwell: We've looked at that. We don't believe that the language of that emergency provision goes to the extent of comfortably allowing us to pay utility arrears and recovering them. It's for that reason we've sought private legislation. I know some municipalities do it. We've been asked to do it. We've looked at the legislation and we're not comfortable that we've got the authority to do that.


Mr David Johnson: I understand Etobicoke, for example, has successfully used that section. Has London attempted it, or is it just an interpretation, that it probably wouldn't work?

Mr Blackwell: We've not attempted that. One of the problems with that section is that where you make an emergency order, you are then obliged to make a court application to confirm the order. That in itself is an extra step.

Following the normal property standards route is rather cumbersome. Toronto, of course, does not operate under section 31 of the Planning Act; it has its own property standards provisions that I think go back to the mid-1930s. They operate under their private legislation, which I think is somewhat broader than section 31 and allows them to pay these arrears.

We had extensive discussions with a number of municipalities, including Ottawa, and we were satisfied after our discussions that the more appropriate way of proceeding was to deal with the issue directly, to make it very clear what the parameters were of the scheme, and that's why we're here today.

Mr Leo Jordan (Lanark-Renfrew): Does this property owner have other rental properties in the city?

Mr Blackwell: I don't believe he has other residential properties. I think he has some commercial property.

Mr Jordan: Just observing from the pictures that were circulated, it would appear that some of the problems in the apartments could be corrected by the tenant. The mould on the bathroom tile and things like that look to me like just some good housekeeping there might improve the --

Mr Blackwell: Certainly, from the city's standpoint I don't want to leave the impression that every problem that is there is because of something that the landlord did or didn't do. Quite clearly, there are two sides to each story. We recognize that and we feel that there are certain conditions there that the landlord ought not take responsibility for, but the ones that are there and that are of some significance, we look to the landlord as being the one who can correct those and should take responsibility for them.

Rev Ms Eagle: If I could say something here too, we are talking about conditions that have been going on for many years, so in terms of even housekeeping, some of the tenants get awfully tired of having taps that never stop running, and having to clean up the mould and mildew that is a result of a tap that can never be shut off in your apartment becomes really quite a problem.

But in terms of the landlord losing tenants, when I went to work in those buildings nine years ago, those buildings were full of tenants and they were also considered the best buildings in the neighbourhood. In nine years, you see the deterioration that has happened. Many of the tenants who lived there nine years ago have moved to neighbouring buildings. Those buildings have not been deteriorating.

This piece of legislation is not to go after the good landlords, but it's one that covers the delinquent landlords and goes after them. That's the protection that we need.

Mr Jordan: It would appear in this particular case that the city of London has been reluctant to enforce its standards bylaw and so on relative to basic requirements such as exit lighting and things like that, and the personal waste that's in the backyard and the grass not being cut. Are those not covered by your city bylaws, that if they were enforced, those corrections would have to be made?

Mr Blackwell: Of course we feel that we have enforced the property standards bylaw. The difficulty with the property standards bylaw scheme under the act is that it is a very time-consuming, cumbersome scheme, because what you have to do is you have to give notice of your intention to make an order, you have to have hearings, there is an opportunity for appeal and there's a period of time within which to make the repairs. If they're not made, then there has to be some action taken by the municipality to step in and do those repairs, and all the time, the situation is moving on.

These things, unfortunately, are not accomplished in days or even weeks, but they take months. I think Susan can certainly attest to this. We've attempted. She has already indicated that we had to go to the extent of even laying charges against this landlord and getting a $6,000 fine before he would even respond to a property standards order to make repairs. We feel that we are pursuing this as aggressively as we can. We feel that this one particular problem of vital services is a hole that has to be filled, and it's not one that can adequately be done under the property standards scheme.

Mr Jordan: Does your fire department have a regular inspection of these public buildings?

Mr Blackwell: There are inspections. Whether they're on a regular basis or whether they're just done periodically, I'm not in a position to say.

The Chair: I have one questioner from the government side and then I'd like to open it up for any other interested parties or the parliamentary assistant. I'd like to make sure that we get some of the views of the ministry, because I know that maybe some of your questions would be answered by Mr Hayes. Mr Hansen, your question.

Mr Hansen: I think a lot of the details that we're getting into in this particular bill -- I'd take a look at the bill as being very progressive. I think the one thing to note here is that we have tenants who are paying their bills, paying the bills for electricity, water and all the services there, and what it comes down to is that the person who's handling the money to pay the bills is not paying the bills.

The deterioration happens to be, in this case, a landlord. I mean, we don't have to look any further than that. It can be X landlord. We always have bad tenants and we have bad landlords, but this will get a balance for the good tenant who has a bad landlord, because the landlord has the right to evict a tenant if he's not looking after his apartment properly, but the tenant has a problem that he has to cut the grass, he has to wind up having his own accommodation for garbage and his own plumber and everything else when he's paying for this in the cost of the rent that he's paying.

I think it's a straightforward bill. As we get into it, I have a few technical amendments to the bill which I will be called upon to proceed with. I think that we don't have to know what the vacancy rate is in London; that's not anything to do with this particular bill. It is the obligation of the landlord to see that the building is in proper repair. I think that's what we have to take a look at here.

The Chair: Is there any problem on the part of the panel sitting before me at this point if we open it up for any other interested parties, if there are any, in the audience, and then turn it over to the parliamentary assistant? Okay? No further comments? Are there any other interested parties who would like to come forward and make any comments with regard to this particular bill? I'll read the number again. It's Pr13. None? I would turn it over at this point to the parliamentary assistant to present some of the views and concerns of the Ministry of Municipal Affairs.

Mr Pat Hayes (Essex-Kent): The Ministry of Municipal Affairs certainly had some discussions back and forth with the people in London and Mr Blackwell and the local member, Irene Mathyssen. One of the things we do is that we're concerned about certainly protecting the tenants and having fair legislation, and that's what this looks like. There are some concerns that we did have with it, and I think we've worked those out.

We are recommending an amendment, that the definition of "vital service" in section 1 of the bill be amended by striking out "includes" and substituting "means." He does that. Okay? We have that one concern recommended, that one there.

The other one is that I guess I just want to make a point here, and that's subsection 3(3). Because of the nature of the vital services, the ministry will support the addition of these costs to the collector's roll. However, the principle that costs except those of a vital nature should not take priority over earlier claims, that should be recognized in future legislation.


The other issue, of course, is dealing with clauses (f) and (g) in section 2, and I have to let the committee know in that particular section that the Ministry of the Attorney General recommends that clauses (f) and (g) of subsection 2(1) be deleted. These clauses make it a provincial offence for anyone to contravene or fail to comply with the bylaw respecting vital services and I guess the concern of the Attorney General is that (f) and (g) are unnecessary.

Of course, the wording on subsection 4(2) is another area where the Ministry of Municipal Affairs is willing to accept an amendment to that. Outside of those particular areas, the ministry has no objections except for that one area.

The Chair: Mr Hansen, did you want to put forward a --

Mr Hansen: I want to put forward an amendment to section 1. I move that the definition of "vital service" in section 1 of the bill be amended by striking out "includes" and substituting "means."

I move that subsection 4(2) of the bill be amended by adding at the beginning in brackets "(Despite the Landlord and Tenant Act)."

These are just minor amendments.

Also I would like to see the deletion of clauses (f) and (g) in section 2.

The Chair: Thank you, Mr Hansen. I did notice that Mr Ruprecht had his hand up for a question, so I believe it would be appropriate for him to ask it.

Mr Ruprecht: Madam Chair, I think Mr Hansen was so lucid just now that he just asked my question, so I'm very happy, thank you.

The Chair: Mr O'Neil, you had something?

Mr O'Neil: I notice that Mrs Mathyssen doesn't seem to be in agreement with the (f) and (g) removal.

Mrs Mathyssen: Might I speak to that, Madam Chair, just briefly?

The Chair: Yes.

Mrs Mathyssen: In terms of section 2, clauses (f) and (g), the concern of the city was situations such as the Cheyenne situation where landlords have behaved in a way that concerns all of us, and as Mr Hansen himself has noted, has refused to pay utilities on behalf of tenants who have paid their rents in good faith.

The city would like to have the ability to make sure that landlords know this is not acceptable behaviour and therefore included clause (f) and (g) so that there is recourse for the city at the end of the day for those landlords who don't fulfil their obligations to their tenants. So I would ask the committee to reconsider and allow those two sections to stay in the bill.

The Chair: Can I just make a point? At this point, the normal procedure is to go through clause-by-clause and make your comments sort of pro and con. We sort of jumped ahead and I plead being rather new in the job. I've given a certain amount of latitude, but at some point we've got to wrest control back and get down to doing this in some proper order.

Mr Blackwell, I'll give you your final comment and then we'll deal with the first amendment. Then I'll allow Mr Hayes to make his comments from the ministry side regarding clauses (f) and (g) as part of section 2. Mr Blackwell, I'll turn the floor to you.

Mr Blackwell: I simply wanted to address my comments to the deletion of (f) and (g). I can do that now or --

The Chair: Why don't you do it a little later, then, after Mr Hayes makes his remarks? All right. I would like to then turn to -- so we have an amendment on section 1.

Mr Ruprecht: Madam Chair, if you will permit me, I had one minor or quick question I wanted to ask the solicitor before we get into clause-by-clause. Is that possible? Remember I mentioned that?

The Chair: That is very possible. I thought that had been taken care of, but feel free to do that.

Mr Ruprecht: No, that was different and I heard Mr Hansen make the comment earlier, that's why I was happy. But my question was, could the solicitor just very briefly outline or tell us how is this different from the city of Toronto bill? You're saying you're going beyond the city of Toronto bill and I'd like to know what you meant by that.

Mr Blackwell: As I indicated earlier, the city of Toronto has private legislation dealing with property standards generally, which it has had since 1934, and it has within its private legislation a provision which is somewhat comparable to the emergency order provisions of the Planning Act. However, the city of Toronto, in its private legislation, has, for example, the right to divert rents. I can't recall whether or not, under the City of Toronto Act, they're required to obtain confirmation of a judge for an emergency order, but it's quite clear that the wording of their legislation embraces things that are not only repairs and physical standards, but also amenities such as vital services.

In my reading of the City of Toronto Act and comparing it with section 31, I'm satisfied that section 31 really is directed towards the physical features of a building, maintaining things like windows and grass and maintaining a heating system that is adequate to provide a certain temperature, but doesn't go so far as to obligate somebody to, in effect, provide the heat out of that system or through some other system.

Ottawa certainly was, I think, satisfied that it didn't have authority to do what we're seeking to do and what it is now doing and, therefore, it sought legislation and obtained it last year. So I think those are the differences between Toronto. Toronto is in a very unique situation because it has had this body of property standards legislation since the mid-1930s which it has operated under and continues to operate under. Other municipalities don't have that.

The Chair: Mr Johnson, you had another question?

Mr David Johnson: It's a general question. It's really not of this solicitor, but since we're talking about an act in the city of Toronto and one in London and one in Ottawa and one someplace else -- I forget where else you mentioned -- are we going about this the right way? I don't know who can answer this question. I'm not sure if Mr Hayes answers that question or the legislative counsel. Does the legislative counsel answer these kinds of questions?

Instead of going municipality by municipality and having a hodgepodge network of different bills, inconsistent and heaven knows what, wouldn't it make sense to look at legislation across the whole province?

Ms Lucinda Mifsud: From a legislative point of view, that would be the way to effect it, but unfortunately, there would have to be a policy decision made as to whether to do that or not, and that would be a ministry decision or a government decision or a cabinet decision. They may be able to speak to it at this point.

Mr David Johnson: But you agree with that?

Ms Mifsud: It would certainly achieve consistency, yes.

Mr Anthony Perruzza (Downsview): It would be better if your party had agreed when it was in power.

Mr O'Neil: God, we are not being partisan in here, are we?

Mr Hayes: Richard Doherty from the ministry will do his best to answer that question, and then I will.

Mr Richard Doherty: So far, we've been dealing with these on a request basis by municipalities, and at this point we view this as an opportunity to see how this works as a pilot project and take it from there. If more requests come in, we'll address general legislation, public legislation, at that time.

Mr David Johnson: But if there already are four of them or five of them, whatever there are in Toronto -- is Toronto a pilot project or Ottawa a pilot project? You mentioned several.

Mr Doherty: Ottawa is relatively recent, and Toronto, yes, it's been around for a while.

Mr Hayes: It's quite different.

Mr Doherty: It's quite different, though, in the way that it's practising, as was mentioned. We're taking that this is our approach. If more requests come in from municipalities, we'll certainly address general legislation at that time.

Mr Hayes: I think it's a very good question, and when I went to Municipal Affairs, that's one of the questions I did ask: Why are we just doing one today and one a couple of months from now? I think it's a good suggestion.

Mr Ruprecht: Good. That's how this city operates. We get hundreds of these.

Mr Hayes: That's right. I agree.


The Chair: Well, obviously there used to be a trend and then there's obviously a movement towards something else.

Mr O'Neil: I think that there certainly is a problem here that has to be dealt with, and it has to be dealt with right away. I think, by what we've heard around this table, that we have the commitment of the government that it will be looking at this so that when we have similar problems in other parts of the province, possibly we will have something done.

Interjection: There was a commitment by the government?

The Chair: Mr Perruzza, you had a comment to make?

Mr Ruprecht: I think there was a commitment by the government, wasn't there?

Mr O'Neil: Something like that.

The Chair: Well, I think if there is a trend, we tend to look at these.

Mr Hayes: We make commitments where others would not.

The Chair: There are 800 municipalities also, if I recall.

Mr Perruzza: The only comment I was going to make was that --

The Chair: If there are 800 municipalities, I think four somehow doesn't make a trend.

Mr Ruprecht: Why don't we just say there's a trend towards a commitment?

Mr Perruzza: Just in looking at the clock, we can, I guess, go on on a very general discussion about many of the implications and policy implications of these kinds of bills and legislation and that kind of thing, and vacancy rates in different towns and cities all across Ontario, but that doesn't mean that we would get through the agenda here today and deal with what's before us. So in view of that and in view of the fact that there are many people here who are waiting for us to move right along, I would hope that we would do that.

The Chair: Thank you, Mr Perruzza. I would then move at this point to go through it clause by clause.

We have an amendment to section 1, which I believe you all have before you. Shall there be any discussion about section 1?

Mr Mike Cooper (Kitchener-Wilmot): On the amendment?

The Chair: On the amendment. All those in favour, then, of the amendment? Okay. Shall section 1 carry as amended? Carried. Thank you.

We have an amendment to subsection 2(1) which reads --

Mr Hansen: Madam Chair, I'd like to withdraw that motion --

The Chair: You would like to withdraw that motion?

Mr Hansen: -- to eliminate (f) and (g) in section 2.

Mr David Johnson: Could I place that motion, then? I mean, we had no knowledge that this was going to be withdrawn.

The Chair: Yes, you can place that.

Mr Ruprecht: Why are we withdrawing this? What happened?

Mr O'Neil: Could I ask Ron why he's -- we understand there was objection by Mrs Mathyssen and by the lawyer for London, but again, was it not the recommendation of the ministry that those two sections be withdrawn, the Attorney General?

Mr Derek Fletcher (Guelph): We are in the middle of a vote, right?

The Chair: No, we're not. We're in the midst of discussion.

Mr O'Neil: You're in a discussion, and you want an answer.

Interjection: This is revolutionary.

Mr Hayes: If I may have the floor, Madam Chair.

The Chair: Please continue.

Mr Hayes: If you recall the comments that I made, the Attorney General's office was recommending this. Some of their concern was that in the Ottawa legislation, they don't have it, and Toronto, I think the other place was. But what I was saying to you was that the Attorney General made this recommendation. I'm not sure how strong they are about it, but that is not a recommendation coming from the Ministry of Municipal Affairs, which I am parliamentary assistant to. So we are not pursuing on behalf of the ministry. We'll just let the committee make up its mind on this issue.

Mr David Johnson: Is there anybody present from the Attorney General's office who could explain why they're opposed to this?

Mr Tom Melville: I can explain. I'm not from the Attorney General's office.

The Chair: If you could introduce yourself as well, please.

Mr Melville: I'm Tom Melville from the legal services at Municipal Affairs. The Ministry of the Attorney General's position is that there's a multiplicity of offence provisions, and they don't want to see the courts tied up with prosecutions for offenses. This bill has alternative measures, including the lien as taxes, and therefore the offence provisions would be unnecessary. That's their position.

Mr David Johnson: Okay. So there seems to be some thought there. Now, the mover's withdrawing. Are we going to vote on his withdrawal, or how does that work?

The Chair: No.

Mr David Johnson: Can I move that (f) and (g), then, be deleted at this point?

The Chair: Yes, you may do that.

Mr David Johnson: Well, I'll make that motion now.

The Chair: Mr Johnson has moved, under subsection 2(1), that clauses (f) and (g) will be deleted.

Ms Mathyssen, you had a comment to make there?

Mrs Mathyssen: Briefly, my comment as previously stated remains, that at the end of the day, while we understand the Attorney General's concerns, it's still important for the city of London to be able to say to landlords who are delinquent and who are consistently delinquent that there is recourse. The city of London wishes to be able to have that recourse at its disposal. I believe Mr Blackwell has something to add.

Mr Blackwell: When I started my remarks, I emphasized the fact that the object of this legislation is not to see that the providers of vital services get paid. The object of the legislation is to reinforce the obligation on landlords to provide vital services when people are paying for them. Simply leaving the city with the right to grab rents or to put it on the tax roll leaves the city in the position of being a bill collector for a utility. That's all it is. It doesn't get anybody's attention.

If you take out clauses (f) and (g), take out clause 2(1)(a) because it has no purpose, take out clause 2(1)(c) because it has no purpose, take out clause 2(1)(d) because it has no purpose, take out clause 2(3)(d) because it has no purpose, what you're left with is a bill that simply puts the city in the position of being a bill collector.

I can tell you right now that the administration will not recommend that the city be in that position, and these people will be left to go back to the courts and deal with the situation in the same way they've dealt with it before. This is a big public issue as far as the city is concerned. I can't stress that too much.

The Chair: Thank you, Mr Blackwell, for making your point very articulately.

Mr Ron Eddy (Brant-Haldimand): I agree that clauses (f) and (g) should be left in. It has been pointed out that this is somewhat of a pilot project, so let's try it. Let's have it in, especially in view that the special legislation for the other municipalities doesn't have it in. I agree that it should be left in.

Mr Ruprecht: Just briefly, we're going to vote for this. It's obvious after Mr Eddy made his remarks. But just in case anyone missed this, what you have witnessed today was a power play between two ministries, and especially Mr Hansen. What Mr Hansen did was a trend. This is a trendsetting committee.

The Chair: Thank you, Mr Ruprecht. I am always happy to have a clarification of what really is going on.

Mr Perruzza: Madam Chair, I would like to request a recorded vote on this.

Mr Hayes: Wait a minute, please. Let me just comment. I'd like to correct Mr Ruprecht. I think it's not a case of a power struggle; it's a case of government members standing up on their own two feet and voting the way they want.

Mr David Johnson: Madam Chair, since we're throwing in comments, I understand a lot of the comments that have been made here and I understand, having come from the municipal scene, the problems with the property standards, for example. That's been alluded to here today. It's cumbersome and it's time-consuming, and I've gone through that. But I've gone through that with tenants in our municipality, and it takes some time, but if you get at it and direct staff and work hard at it, then you can do it.

When I hear that a tap has been leaking for six months, for example, then I have to say that the city of London isn't going through the procedures in a timely fashion, because I can tell you it doesn't take that long in East York. I'm sure it shouldn't take that long in London either.

But to come back to clauses (f) and (g), do I understand that what's being said here is that a person who contravenes or fails to comply with a bylaw would be guilty of an offence? Perhaps I'll direct the comment to the gentleman who's been so kind as to to interpret the Attorney General's comments. That means then what? That they're guilty of an offence. I'm new here, so explain to me, what does that mean exactly?

Mr Melville: The first clause states, yes, that violation of the city's bylaw in effect would be an offence.


Mr David Johnson: What's associated with that?

Mr Melville: Under the Provincial Offences Act, violation of a bylaw can be made an offence and it would have a consequence I believe of a $5,000 fine and a possible jail sentence.

Interjection: For each day?

Mr Melville: -- no, no jail sentence.

Mr David Johnson: There's no jail sentence, but this is on record somewhere.

Mr Melville: Yes, it's in the Provincial Offences Act.

Mr David Johnson: So this is on a person's record. And what is the fine?

Mr Melville: It's a maximum of $5,000 unless otherwise prescribed.

Mr David Johnson: Is that $5,000 a day? I'm looking back and forth here, because we don't seem to have --

The Chair: Mr Blackwell, you had a comment?

Mr Blackwell: It would be $5,000 for each offence, so if each day is an offence, then it would be a maximum of $5,000 each day, or if the charge were for a series of days and it's only one offence that's charged, then it would be $5,000 for that series of days.

Mr David Johnson: So it's possible if it was five days it could be $25,000.

Mr Blackwell: Theoretically, yes, that's correct.

Mr David Johnson: It certainly allows that.

Mr Blackwell: Yes.

Mr David Johnson: Plus the fact that this would be on a person's record somewhere as an offence, plus the fact that the court system, which is clogged unbelievably today, has to deal with this kind of issue as well.

Mr Melville: That's the concern of the Attorney General, that it might result in clogging of the court system.

Mr David Johnson: And the Attorney General doesn't think this is necessary.


Mr Melville: Well --

Mr David Johnson: Okay, I'm going to stick with my suggestion to delete clauses (f) and (g).

The Chair: We have a request for a recorded vote. All those in favour of amending by striking out clauses 2(1)(f) and (g)? All those in favour, would you please raise your hand and the clerk will call out your name.

Mr David Johnson: In favour of the deletion.

The Chair: In favour of the deletion, of your amendment.


Johnson (Don Mills), Jordan.

The Chair: All those who are opposed, again, please raise your hands and the clerk will read out your name.


Cooper, Eddy, Fletcher, Hansen, Hayes, Harrington, O'Neil (Quinte), Perruzza, Ruprecht.

The Chair: The amendment is lost.

All those in favour of section 2 as it stands? I believe the clause is carried.

Shall section 3 carry? Carried.

We have an amendment to section 4. This was moved by Mr Hansen.

Mr Hansen: Do you want me to read it? Okay. I move that subsection 4(2) of the bill be amended by adding at the beginning, "Despite the Landlord and Tenant Act."

The Chair: Any discussion on that particular motion? Seeing none, shall the amendment carry? Carried.

Shall section 4, as amended, carry? Carried.

Shall section 5 carry? Carried.

Shall section 6 carry? Carried.

Shall section 7 carry? Carried.

Shall the preamble carry? Carried.

Shall the bill carry? Carried.

Shall I report the bill with amendments to the House?


Thank you, Mr Blackwell, Ms Eagle, Ms Chann and Ms Mathyssen, for your time and cooperation.

Mrs Mathyssen: Thank you, Madam Chair. The people of Cheyenne thank you.

The Chair: While the room clears, if the other presenters could make themselves available. Mr Winninger?


Consideration of Bill Pr4, An Act respecting the City of London and Covent Garden Building Incorporated.

The Chair: We have another bill that has now come before us, which is Pr4, An Act respecting the City of London and Covent Garden Building Incorporated. The sponsor is Mr Winninger and the applicant is Mr Blackwell, the city solicitor for the city of London. Mr Winninger, would you like to make a few comments as sponsor.

Mr David Winninger (London South): It's certainly a pleasure to be here this morning and watch the proceedings unfold. It's equally a pleasure to sponsor Bill Pr4, An Act respecting the City of London and Covent Garden Building Incorporated, for the consideration of the committee this morning.

As some of you may know who come from the London area, Covent Garden Market is an ancient and venerable institution dating back to the 1800s when it began as a farmers' market in London. This bill before you today comes before you pursuant to an agreement between the corporation of the city of London and Covent Garden Building Inc. That agreement was dated January 25, 1993.

This bill, as I said, is further to that agreement between the city and Covent Garden Building Inc for the purpose of continuing Covent Garden as a statutory corporation and local board of the city. With that introduction, I'll turn the floor over to Robert Blackwell, the solicitor for the corporation of the city of London.

The Chair: Mr Blackwell, your comments are appreciated.

Mr Blackwell: Thank you, Madam Chair. I hope that this bill is testimony to the fact that the city of London not only has problem people but also has some very good people, civic-minded people. I say that because Covent Garden was created back in the early 1950s by a group of businessmen who were concerned about the downtown area, who felt that the market of that day should be revitalized, that the downtown area would be greatly assisted by having parking.

The council of the day was not courageous enough to take that on as a municipal undertaking, so these business people took it upon themselves to do this and entered into a series of agreements with the city under which they in effect said, "We'll put up the money, we'll put up the building, you give us the land and, once the debt is all paid off, we'll turn it over to you." That has been the regime for the last 40 years and we have now reached the point where Covent Garden is free of debt.

The building which the company originally built, however, has reached the end of its age and needs to be rebuilt and revitalized. The city council and the directors of Covent Garden concluded that rather than simply winding up Covent Garden and having the full responsibility taken back by the city, that there was a purpose in continuing Covent Garden but perhaps under a new life with a new face on it.

Basically that's what this legislation does. It's simply aimed at bringing Covent Garden from its status as being a non-profit corporation without share capital to the point of being a local board to provide for the appointment of its directors by city council, but representation, nevertheless, coming from the business community, and to allow Covent Garden to continue its responsibilities with respect to the market and with respect to parking.

I don't propose, Madam Chairman, because you've given me more than my share of time before the committee this morning, to go through the provisions clause by clause. They are sort of standard, boilerplate clauses dealing with a corporation and therefore I will simply leave it at that. I'll be happy to answer any questions that you or the committee members may have.


The Chair: Yes, thank you, Mr Blackwell. We have one question at this point from Mr O'Neil.

Mr O'Neil: Have there been any objections on this bill from within council or outside of council?

Mr Blackwell: No, it has been a unanimous arrangement between council and the directors of Covent Garden.

Mr O'Neil: No objections from any of the people within the municipality?

Mr Blackwell: No.

The Chair: At this point I think it would also behoove us, since noes have been heard -- there may be in fact some interested parties who do have a comment to make. So I would like to ask, if there are any other interested parties who would like to comment on Bill Pr4, to come forward at this time and take their place at the table.

Seeing no movement and hearing no scraping of chairs, I believe that the answer to that question is no, but we do have another question from Mr Ruprecht.

Mr Ruprecht: Yes, just a short comment, Madam Chair. There won't be any shuffling as this place is carpeted. But the reason I'm going to vote for Bill Pr4, and I want to make sure that everybody understands, is because of the remarks of Mr Winninger. He looked at this bill, he looked at all the items, and since he's behind it and supports this bill I see no problem whatsoever to recommend to the committee that we support it.

The Chair: Does that mean everything that comes forward in the House, Mr Ruprecht, if it has Mr Winninger's stamp on it will receive your approval?

Mr Ruprecht: No, no, this one --

Mr Winninger: Point of order, Madam Chair: I wonder if Mr Ruprecht had his tongue firmly in his cheek when he made those comments.

The Chair: Thank you, Mr Winninger. I think we can now ask Mr Hayes for a few salient comments about this bill.

Mr Hayes: You thought it was going smooth until now, eh?

The Chair: Yes.

Mr Hayes: Madam Chair, the Ministry of Municipal Affairs has no objections to this bill, thank you.

The Chair: So are there any further questions regarding Pr4?

Mr Cooper: Madam Chair, yes. Having been born in London and having visited Covent Garden, and it's quite comparable to the Kitchener farmers' market, I'll be supporting this because I think it's excellent for the city.

The Chair: Thank you, Mr Cooper. So I think we have exhausted the questions from the committee and we'll move to the clause-by-clause consideration.

So, shall section 1 carry? Carried.

Rather than go through one by one, the clerk tells me we can say, quite simply, shall sections 2 through 19 carry? Carried.

Shall the preamble carry? Carried.

Shall the bill carry? Carried.

Shall I report the bill to the House? Agreed.

Mr Blackwell, I'm quite sure that you're happy this one went this smoothly. Thank you very much for your time. Mr Winninger, we'll definitely look forward to seeing you so we get Mr Ruprecht's vote on all these issues.

Mr Winninger: Always a pleasure.


Consideration of Bill Pr85, An Act to revive The Optimist Club of Kitchener-Waterloo, Ontario, Canada.

The Chair: I believe, Mr Jordan, you have some guests here as well on behalf of Ms Witmer, and for the next bill if we can call forward Rudolph Kominek. Thank you very much. If you'll be seated.

Mr Rudolph Kominek: Madam Chair, and members of the committee, I'm Rudolph Kominek.

The Chair: Please feel free to be seated, and your guests as well, and we'll have you introduce them at your time of making a presentation.

Mr Kominek: Thank you, Madam Chair.

The Chair: Mr Jordan, if you would at this point make your comments with regard to Bill Pr85, An Act to revive The Optimist Club of Kitchener-Waterloo, Ontario, Canada.

Mr Jordan: Thank you, gentlemen, for coming this morning in support of this bill. I have the pleasure this morning, on behalf of Elizabeth Witmer, the member for Waterloo North, to introduce this bill.

The club was incorporated on October 12, 1956, but had operated for a number of years prior to that date as an unincorporated entity.

On September 8, 1982, the corporation was dissolved for default in complying with the Corporations Information Act. The officers and directors are elected on an annual basis, and it appears that an outgoing secretary did not advise the incoming secretary of the requirement under the Corporations Information Act and that the required filing was not made.

It appears from the records of the companies branch that notice of default was mailed to a Mr Kirsht on September 8, 1982. A Richard Kirsht had been a member and officer of the club, but circa 1982 he was transferred by his employer from Kitchener-Waterloo and apparently spent several years on a work contract out of Canada. The notice of dissolution was mailed to a Mr Boyer, who apparently was a member of The Optimist Club of Kitchener, which was another Optimist club in the Kitchener-Waterloo area. The Optimist Club of Kitchener voluntarily surrendered its charter in 1984.

The current members of The Optimist Club of Kitchener-Waterloo who were officers or directors around 1981, 1982 and 1983 were queried about the situation, and all state they had received no information with respect to either default or dissolution of the club charter.

In the latter part of the year 1990, the then current secretary of the club became aware that there was a problem relating to the club charter and the initial inquiries were made to the companies branch. As a result of the information obtained, this application has been put forward in the form of this bill, An Act to Revive The Optimist Club of Kitchener-Waterloo, Ontario, Canada.

The Chair: Thank you very much. I think we'll turn first to the applicant to make a few comments or, Mr Hansen, did you have something specific to say?

Mr Hansen: To save some time, I think that we can take a look. It's An Act to revive The Optimist Club of Kitchener-Waterloo. We have quite a few different charitable organizations coming before this committee with the same problem, where a notice has been sent out to a secretary, the secretary has resigned and a new secretary is put into place and there's no club address but a secretary at a home address. I think that we could make it very short. Maybe they would like to make a few comments on behalf of The Optimist Club --

The Chair: I'm quite sure they would.

Mr Hansen: -- but I have no problem voting in favour of this particular bill, as there are Optimist clubs in my area also which are an outstanding community asset.

Mr Ruprecht: Just briefly, if Mr Hansen has no objection, hopefully we'll get a chance to introduce these gentlemen from the Optimist club. They're doing great work in Kitchener-Waterloo. As I said previously, there are now two MPPs, I want you to know, involved in helping you to revive this charter, Mrs Witmer and Mr Jordan. I think on those grounds alone --

Mr Hansen: You've got the same speech every time.

Mr Ruprecht: There's a lighter side to this place.

The Chair: There is, actually, a lighter side to this place, and Mr Ruprecht is showing it. I appreciate the fact that we're not always that partisan.

Mr Kominek: I see there's support on the left-hand side too.

The Chair: There is, absolutely. Mr Kominek, I think this is the time that you can introduce your colleagues who have come with you, if you have a few comments, and then we can probably move very quickly into the vote.

Mr Kominek: Yes. We have with us -- excuse me; we forget we can sit in these hearings rather than jump to our feet and speak from a standing position. That's the tradition of the legal profession. On my left is the secretary, William Kern, who was involved in bringing this matter to light --

The Chair: Very good.

Mr Kominek: -- when he had to find a number and he found out there was a problem. Then to my right I have Al Galbraith -- you are the lieutenant governor at this time, I believe -- and Mike Kruk beside me. You are a past president?

Mr Mike Kruk: I was a past president that year, yes.

Mr Kominek: During when this matter came forward. This is very important to the club, to revive, because this club has a lot of real estate assets. They operate two rather valuable camp sites. They're in the name of the incorporated club, and we'd like to keep it that way, if we possibly could. There was no intention of the club to offend the companies branch requirements.


The Chair: Very good. I think it's clear to all of the committee members that there was no offence intended. This happens so frequently, as Mr Hansen has pointed out, as a result of an omission that people are not aware of. So I appreciate your comments.

I think we can probably move very quickly into the vote. I do have the obligation to ask if there are any other interested parties who have some comments to make about this particular bill.

Mr Ruprecht: Madam Chair, one brief comment. Is Mr Hansen prepared to withdraw the charges that will apply to the Optimist Club?

Mr Eddy: I have a motion on that.

Mr Hansen: Just wait there.

The Chair: Okay. Mr Hayes, do you have any comments on behalf of the ministry with regard to this particular bill?

Mr Hayes: The Ministry of Municipal Affairs has no objections to this bill.

The Chair: Okay. Mr Cooper?

Mr Cooper: Obviously, as a member from the Kitchener-Waterloo area, the member for Kitchener-Wilmot, I'd be more than pleased to support my colleague from Waterloo North, Ms Witmer, and commend you on all the services you provide to the community.

The Chair: So let us move into the vote.

Shall section 1 carry? Carried.

Shall section 2 carry? Carried.

Shall section 3 carry? Carried.

Shall the preamble carry? Carried.

Shall the bill carry? Carried.

Shall I report the bill to the House? Agreed.

I believe, Mr Eddy, you have a motion.

Mr Eddy: Yes. I move that the committee recommend that the fees and the actual cost of printing of all stages and in the annual statutes be remitted on Bill Pr85, An Act to revive The Optimist Club of Kitchener-Waterloo, Ontario, Canada.

The Chair: All those in favour of the motion as presented? Agreed? Carried.

Mr Kominek: Thank you, Madam Chair and gentlemen.

Mr Kruk: Thank you for the ping-pong game.

The Chair: We do hope to make it interesting for you.


Consideration of Bill Pr19, An Act respecting the Town of Gravenhurst.

The Chair: We'd like to call on Mr Waters and Mr Black for Pr19, An Act respecting the Town of Gravenhurst. Welcome, gentlemen.

Mr Daniel Waters (Muskoka-Georgian Bay): Good morning, Madam Chair.

The Chair: Good morning. As the sponsor of the bill, if you would like to make your opening remarks.

Mr Waters: I'm quite hopeful that this bill will resolve a long-outstanding issue that's been going on for the last number of years over a portage that ran between two lakes in the southwest corner of Muskoka. Because of difference in water changes and the effects of the dam, it was not absolutely certain where the original portage, as laid out I believe in 1870, existed.

There have been, actually, court cases and a number of things over this, so the town has worked to resolve the issue by defining a new portage which should resolve all of the outstanding concerns by everyone who would like access to Deer Lake. I would refer to Mr Black for any detail.

The Chair: Mr Black, any comments?

Mr A.R. Black: Portages not being a big item in 1993, the subject matter of this bill is perhaps a little unusual. I'm sure, however, that you appreciate that Muskoka district is recreation country, and our greatest recreational assets are our lakes.

The lakes that we are concerned with here are clearly provincially owned water bodies and always have been. The town of Gravenhurst therefore has an interest in them because it is a recreational community. But the town of Gravenhurst is not a large municipality and the financial burden of this ongoing concern is one the town simply doesn't need, especially in today's economic climate.

For that reason, last November, I met with council, and on that day, we saw three alternatives.

One was to do nothing and allow public access to these particular lakes to be denied. This was not acceptable either for local ratepayers or for the vacationing public that we always like to attract to Muskoka.

Alternative two was to assume one of the road allowances that are in the grid of the municipality, but if we assumed that for maintenance, that entailed the cost of improving that road allowance and it also entailed the ongoing cost of maintaining it. As well, there is in fact a matter before the court that was decided in favour of the municipality at trial but is heading to the Court of Appeal that deals with legal title to a portion of this road allowance. But that was not what we wanted to get into.

So the third alternative is the one that resulted in this application: move the portage, which, as Mr Waters said, existed in 1870, but it had existed for a long time before that. It was, if I may, the Highway 11 of the day when this was Indian country. If we could move that to a more workable location, it would be a dandy solution for several reasons.

I've had discussions with the Ministry of Natural Resources, and when it sets up a portage it generally likes to see an area that is reserved that's 30 metres wide. This road allowance is only 20 metres or, while metric is better, I still think 66 feet. But one of the reasons a portage that is properly set up in that regard is largely self-maintaining is that if you have a forest cover, the forest canopy prevents sunlight from getting to the forest floor, and the path, even though it might not be used more than, say, once a week or maybe several times a month, simply doesn't grow in. For that reason, even though the actual route -- any canoe, especially a canoe that I have to carry, is seldom more than three feet wide, but to have 20 or 30 metres enables you to have this forest canopy to cover. It also provides you with an area where if MNR goes in maybe once every three or four years and checks the portage and sees a dangerous tree, it can fell it and there is adequate width to fell the tree and move it out of the way.

The third reason a good width for a portage is desirable is that there are the inevitable low spots. I am a canoeist as well as a solicitor, and I have several times, with 70 or 80 pounds on my back, stepped in a mud hole, and I can assure you, you go right to your knees. So there should also be room to move around any low spots on the portage.

Another reason I think the portage was the way to go is that as a practising solicitor in a small town, if there is a piece of legislation that has been of great benefit to Ontario, in my mind, in the last 20 years, it is the legislation in 1980 or thereabouts, the Occupiers' Liability Act and the companion Trespass to Property Act, which really updated the medieval law we practised for so long and made it very clear that recreational trails such as this would attract no liability to the municipality or to MNR or to a private land owner. In other words, the person, whether it be me or anyone else, who puts a canoe on their shoulders and walks along that trail accepts all the risk of travelling on that trail, and if you stub your toe on a white pine root, that's your problem. And that's the way it should be.

So for all of those reasons, we felt the portage route was the way to go.


The first thing we did was discuss it with the lands people at the Ministry of Natural Resources, and they also supported and approved what we planned to do. The next thing we did was to commission an up-to-date survey, and I have left with your clerk today copies of this. What is highlighted in orange is the original portage as it was in 1870 and before, and what is in green is the proposed portage. This plan has now been recorded in the land registry office. This one is still hot enough off the press that it hasn't yet been recorded, but it's available to you and you have a copy. I often think if you can see, it's helpful.

I think those are my comments on the history of the matter.

I've had an opportunity to review the submissions that have been filed with the clerk, and I would like to comment on two of them. The first is that the 1870 survey that was done by Mr Scott that is an appendix to the compendium was not an obscure plan. It was recorded in the registry office at the time and became the basis for all subsequent patents from the crown or grants from the crown. It became the root document for every search of title by a conveyancer or a lawyer who was doing a legal search. That original survey clearly illustrates the portage, and the grid allowance that was laid out on that survey was road allowances that were laid out for the purpose of reserving avenues of access so that it was possible to get to all parts of the land.

Bill Pr19 does not interfere with any matter before the court, nor does it purport to create any legal title to land. A right of passage is deemed not to be an encumbrance on land by subsection 44(1) of the Land Titles Act, under which all of the lands in this immediate area are recorded, and any suggestion otherwise is simply an attempt to mix apples with oranges, the apples being the right of passage that we are attempting to deal with here and the oranges being legal title to land, which we in no way wish to interfere with.

The only other comment I would make is that, again with reference to this, the existing portage, as highlighted in orange, on the Pine Lake end is in a cottage subdivision and on the Deer Lake end is at the location of a dam at the outfall creek to that lake.

Real estate or conveyancing law is not an area for that old saying: "Ignorance is bliss. Why be wise?" If people say, "Oh, we don't know about a portage there," it may be brought to someone's attention abruptly some day when Mr Cottage Owner applies for a mortgage and the lawyer for the lending institution says, "You've got an outstanding legal interest there."

In that regard, if I may simply quickly go through the bill, section 1 extinguishes the right of that old portage. It would take it out of the way so that if Mr Cottager applied for a mortgage, that old 1870 portage is gone. Section 2 is intended to create the new portage along the unused road allowance. Section 3 sets up the right of passage, and the one thing I should comment on that one is that in my initial discussions with the lands people at MNR that I raised, they just said, "Of course." What the "of course" was is that, taking it to 1993 from 1870, something has happened in this land. We have put on the landscape a grid of public roads.

So when the portages were Highway 11, there were no public roads, but today, many recreational canoeists, myself included, if we're going out, we put the canoe on the roof of our car, drive to some convenient spot on a public road, park where it's appropriate, put the canoe on our shoulders and either walk to the one lake or walk to the other lake. I think that is something that is done all over Ontario, but in this bill we have tried to make it clear that if you can go over all of a portage, you can go over a part of a portage. I think it is mainly just recognizing what I would call the reality of canoeing today.

Paragraph 4 is the one that incorporates the Occupiers' Liability Act provisions which I suggested earlier are very appropriate. In fact, I will make the comment that I have two grown-up daughters and they both say to me, "Dad, you should be watching L.A. Law so you'd see how you really practise law." Everybody in the country does watch television and everybody wants litigation, and the purpose of that section 4 is to say, "Hey, no liabilities here."

Section 5 I think is something that is appropriate to include. It probably will not be used. When I say that, I have practised law in Muskoka for 30 years, and during that time I have become aware of an abundance of small parks, road allowances used for access, recreational trails and so on. By and large, they are self-governing, but every now and again a jerk comes along. The classic is the time when you have some motorcycle gang, but there are other scoundrels besides motorcycle gangs. When these people come along and decide they're going to have late-night beer parties or something, it's too late to start thinking, "Hey, how can we regulate this thing?"

So to have a section in there like section 5 provides somebody, in this case the municipality, with the authority to say: "All right, we will regulate it. There will be no use of this from sundown till sunrise," or whatever the appropriate regulation to cure the remedy that's causing a tempest in the local teapot. So it's there to be available if needed.

I think I have covered what we had to do.

The Chair: Thank you, Mr Black. It is now my duty to ask if there are other interested parties who would like to come forward. I am aware that there is a David Fraser. Mr Fraser, would you like to come forward, please, and take your place at the table.

Mr David Fraser: My name is David Fraser. I have been involved with this issue for some four to five years now. It's cost me personally thousands of dollars to enter this lake. I have never abused the lake nor has anyone who has come with me abused the lake. It is part of our Canadian heritage that that lake and every lake in the province of Ontario and, for that matter, in Canada, shall be retained for the public use. The portage has been there since 1870. Thank goodness for Mr A.B. Scott and our English law that was able to lay out our province and our country in the grid system.

There are parties who have purchased substantial amounts of land around these two lakes, and for them I totally agree that it is their land and that their land shall and should be protected against any individual who wants to hurt it. But they do not own the bottom of the lake.

In their writings to you, they say they own all of the lands around the lake. I am here to tell you that lot 34, Concession 12 in Wood township is owned by the Ministry of Natural Resources and/or the province of Ontario. This access via the portage would possibly cut this off. We have to be able to get to lot 34, Concession 12.

There are very many interested groups across Ontario that wish to use portages. In the past four and a half years, there have not been too many people who have come along and abused this lake. In fact, the Ministry of Natural Resources in a letter to myself has shown that there has not been any abuse on said lakes.

We have to retain this portage and any other portage that comes before you. I am going to agree with this and support the town of Gravenhurst. I hope that you people see fit that your children, my children and anyone else's children's children, if they want to get into this lake, by enacting this bill and marking the portage, goes forth.


The Chair: Thank you, Mr Fraser. We have two other interested parties who've declared themselves; that is --

Mr O'Neil: Can I ask a question here of this witness?

The Chair: Yes, you may.

Mr O'Neil: So in other words, you're agreeing with the bill that's being proposed by Gravenhurst?

Mr Fraser: I am agreeing with it in principle, that we do retain it. I have one reservation and one reservation only, and that is section 5, the bylaws for the portage. I do believe after talking with different solicitors that they cannot put a bylaw there saying that the public cannot use it. They cannot go against the Public Lands Act.

Mr O'Neil: In other words, because Gravenhurst is taking this one portage route and replacing it with another, which is the road allowance, it's still giving you access to these lakes. So from that point of view you support it, but what you don't support is when they take a portage route away and don't replace it with another?

Mr Fraser: Absolutely.

Mr O'Neil: So you are supporting the town of Gravenhurst on this bill?

Mr Fraser: I am supporting the town of Gravenhurst, that we have access to these lakes and to any other lakes, but these lakes in particular at the present moment.

Mr O'Neil: Right, okay.

Mr Fraser: That is my concern.

The Chair: Thank you, Mr O'Neil, and thank you, Mr Fraser. Seeing no other questions, I would call forward Mr James Walton, the president of the Beaumaris Fishing Club. Mr Walton, perhaps you would then introduce what other guests you have with you.

Mr James Walton: I will, Madam Chairman. My name is Jim Walton. I'm president of the Beaumaris Fishing Club. With me are Mr Birchall, our solicitor, and Mr McCook Miller, who is secretary-treasurer of the club. We're thankful very much to you to invite us, but I'd like to turn the discussion over to Mr Birchall.

The Chair: Thank you and, Mr Birchall, if you'd like to make your presentation.

Mr Charles Birchall: Thank you, Madam Chair. I may miss a point or two, so my friends will chime in.

The counsel for the town of Gravenhurst noted in passing the difficulties of litigation and I want to tell you that this litigation is still ongoing, as he correctly pointed out. It's on appeal and it doesn't involve a portage. What it involves are the road allowances and part of those road allowances are the subject of the portage.

That case is on appeal, and in our submission, we think that while that case is before the courts, this particular issue should not go forward, this particular bill. It's because some part of the road allowance is the subject of the litigation. Just for your purposes, the fishing club seeks a declaration that it is entitled, by virtue of a section of the Municipal Act, to the ownership of those original road allowances. Presumably, if that is successful on appeal, there may be other claims associated with the road allowances by virtue of the fact that it is a statutory interpretation that is the subject of the litigation.

The other submission that we would like to make is that at the moment there is access to Pine Lake. I think if you've seen our submission, there's a map attached to it and you'll see that there's access to Pine Lake now. The town has correctly pointed out, counsel has correctly pointed out, that at the moment, there is no public access to Deer Lake, and the lands around Deer Lake are owned by the fishing club.

What the town is seeking to do is rely on an 1870 document to say that there is in fact a portage route between the two lakes. In our view, we don't concede that. The one point you can take from all this is that in fact the portage hasn't been used since 1870 and has not received a great deal of use. It's on a map, but it isn't being used and it isn't being used to the point where cottages and other things have sprung up.

Rather than using this portage, however, they've suggested the use of a road allowance. If you look at their subsection 3(1) in their proposed bill, they've been fairly careful to make sure that you only need to use or intend to travel from Pine Lake on a portion or all of the portage. The reason for the portion is that if you look at the map, there is a current road called Snider's Bay Road that would intersect the portage or the road allowance.

In our view, what they're seeking to do indirectly is in effect an expropriation. If you go by way of expropriation, you can expropriate land, take a road into a lake, and what follows from that is a hearing process, compensation if there's injurious affection to the landowners. There's none of that in this case.

In our view, this is the wrong process. We should not be going by way of a private member's bill. For the record, the Beaumaris Fishing Club is not opposed to a portage per se, but what it is opposed to is the process, the use of a private member's bill when there is litigation before the courts, and two, it is opposed to the fact that there are other procedures which may be more appropriate, other administrative tribunals, not a private member's bill.

Those are my submissions.

The Chair: Are there any questions on behalf of my colleagues?

Mr Eddy: I request clarification on the point of expropriation. It's other than a road allowance that's proposed for use as a portage, is that correct, or is it the fact that it's an unused road allowance that you use the word "expropriation?" I don't see how you can expropriate a road allowance.

Mr Birchall: No, you can't. The reference to that is simply if you want to get access to a public lake, which Deer Lake is and Pine Lake is, you can expropriate land to build a highway from a current highway to the lake. They're not seeking to do that. The road allowance is an unused road allowance and the court case -- part of that road allowance we submit we own.

Mr Eddy: I see.

Mr Birchall: It is not a road allowance, in other words.

Mr Eddy: Where does the litigation stand at the present time? Has there been a court hearing on it? Are you expecting a decision soon?

Mr Birchall: I think counsel has correctly pointed out that the trial court rendered a decision, but there has been no subsequent hearing on appeal.

Mr Hansen: I'm still a little confused on this road allowance. I have 66 feet that run beside my property of 10 acres. The municipality owns that road allowance. I've maintained that road allowance, but the municipality still owns that road allowance.

Do you have any information that you can give us at what period of time you actually purchased this road allowance of 66 feet? Because it was unused does not mean that you have ownership. It's still a public piece of property.


Mr Birchall: Mr Hansen, that is the very subject of the litigation. It is a question of whether in fact the Beaumaris Fishing Club owns the road allowance or not, and it's by virtue of a section of the Municipal Act, section 317. I don't want to get into the merits, because obviously a court will determine those merits ultimately, but you're correct. I mean, that is the debate: whether we own it or whether we don't.

Mr Hansen: I know at one time the 66 feet, with the people who own the property next to me, the municipality could wind up giving it, if it wanted to give it, or it could wind up selling it and split it down the middle.

Mr Birchall: Mr Hansen, I'm not directly involved in the litigation. My friend from --

Mr Hansen: But you have to understand the committee members have to know where you're coming from.

Mr Birchall: I understand.

Mr Hansen: Maybe I'd make the comments now, the point -- I know on Lake Erie for a number of years the cottage owners were able to get fences installed at the end of road allowances. There was a dispute on high-water-level mark etc. Being a resident of the Lake Erie area, which I swam in for years, it wound up being cut off to the public to go on what I classified as public beaches. The cottage owners had the municipalities put signs up, "No Parking." I know that one comment that the solicitor had made, there was parking in appropriate places. Going up north as a southerner, I don't know where I'd be able to get into some of these lakes without the trails in order to get in.

I'm involved in the Niagara Escarpment, where the Bruce Trail is, where it goes across private property. The concern I have is that I read somewhere in here -- there's a lot of literature here to read it all over and get an idea of your problem there -- it said that the road allowance of 66 feet wide was over rough terrain, where a person carrying a canoe could not stay on the road allowance and would have to go on to private lands. Could you explain that? Is that a true fact?

Mr Birchall: I don't think that's in our submission. I think it's in another submission.

Mr Hansen: You think it's in another one. Okay.

Mr Birchall: But if I can clarify a little bit further, the section in the Municipal Act that is the subject of the litigation simply provides that where a road allowance is created and a highway is constructed, in lieu of using the road allowance that road allowance falls to the owner of the land around the road allowance. The question is whether the Beaumaris Fishing Club falls within that category for the purposes of the section.

We're not here to debate that issue per se. All we're saying is that is the subject of litigation. The private member's bill that's being put before you today involves the road allowance, in part, which is the subject of that litigation. This bill should not be going forward with that litigation still under way.

We've also said that the Beaumaris Fishing Club is not opposed to a portage per se. It's just where it's placed, how it's used. It's a different process than the one that we're engaged in this morning.

Mr Hansen: Okay. Snider's Bay Road: Is that part of the portage? Is that existing on a map from 1870 that shows it going through there? This isn't expropriation. This is already shown on a map. That should be public land. The club is saying: "But they're not public lands any longer. They belong to the fish club because we've maintained them or we've had our possession and use of them for so many years." I'm trying to get this straight.

Mr Walton: I'm not sure what you're saying.

Mr Hansen: Okay, the Snider's Bay Road, the yellow mark -- I've got your map out here. Is that shown on a map? I thought you were saying --

Mr Walton: Oh yes, that's the present road today.

Mr Hansen: You were talking about expropriation.

Mr Birchall: What I was saying was that the town could have expropriated land, at the moment, leading to Deer Lake. It hasn't chosen to do that. What it's chosen to do is come forward with a private member's bill providing for a portage, and part of that portage includes a road allowance which we say, by virtue of the Municipal Act, has devolved to us. That issue is being debated and litigated in another forum. All we're saying is that as long as that's taking place, you shouldn't be going forward with the private member's bill.

Mr Hansen: I'm sitting here not as a lawyer but as an individual taking a look at a mapped-out 1870, that what it showed was public lands, and that's what I have to take a look at today. If you dispute it, I think you have your legal recourse, but with the bill coming before this committee, I don't see that it's a problem for this committee to deal with. It is a problem with the fish club to say "on ownership" and going after the municipality at this point, if you follow me.

The Chair: Mr Eddy had a clarification.

Mr Hansen: But there's one other thing I wanted to put in here. In the Fonthill area, what we have now -- and it was a conflict with the subdivision residents -- is that between the subdivisions leading to another subdivision and parks, there are trails that children can take to go from one subdivision to the other in order to go to the different parks. At first people complained that this walkway, which was, I think, 25 feet wide, to get to the other park or get to the arena -- they said they didn't want the chatter of young children walking along their homes. Today it's a plan in the Fonthill area which everybody accepts and agrees is one of the best things that was ever done, yet when it was being looked at, they said it was wrong.

Some of these things we take a look at, and I'd just like access to public parks, public lands, and that it's not cut off by private owners, but private owners shouldn't take the responsibility of them walking across their land.

The Chair: Mr Eddy, you had a comment?

Mr Eddy: Yes, I just want clarification. I don't believe that the private member's bill, if passed, would interfere with the decision of the court. If the court finds that indeed you do have title to a portion of the road allowance, then it could not be part of the portage, through this bill. I'd like you to comment on that, if that's the case.

Secondly, I believe you're requesting that the bill be tabled or deferred until a decision is made on the appeal. However, if the bill is passed, it couldn't affect the court's decision. The other question is, if the court finds that you do in fact not have title, you would agree with the bill going forward, is that correct?

Mr Walton: No, I don't believe so. I think that the intent of this is just not a portage from lake to lake, which is my understanding of what a portage is. I think we have been good stewards of this lake and this area for 70 or 80 years. We have the example of Hardy Lake in the area, which was made a provincial park, and it is a dead lake right now. I am concerned about the future ecology of this area if there is a parking lot on Snider's Bay Road with signs and arrows pointing towards it. I'm concerned about all the things that sensible ecologists feel.

A portage, from what I understand, is to enable people to go from lake to lake. You hoist a canoe over your head, which I've done, walk through the woods on a narrow path and slip your canoe into the lake and paddle along. We have had pontoon boats come down road allowances. We have had bass derbies come in that were participated in by the Toronto police force. The intent, in my opinion, by the way the bill is written up, does not conform to my understanding of what a portage is. If there is a slim line drawn from lake to lake, that's a portage, but something with a parking lot and a 66-foot-wide right of way, that's not my idea of a portage.


Mr Eddy: So your point is that at the present time, there is a portage, there is access by portage.

Mr Walton: I've never heard of it, but it appeared on this map. All the residents around have not heard of it either. I'm not going to contest that at the present moment, but that's what we're --

Mr Eddy: But you're saying there isn't presently a portage --

Mr Walton: There could be a portage.

Mr Eddy: -- and there isn't public access of any kind to the lake at the present time, other than people who are around it and the club, and you want to keep it that way.

Mr Walton: There is a portage, right, that people have come on, neighbours have come on, with canoes. We have not objected to that; we are good neighbours. We like the area. I'm just concerned about the drift of where this is going.

Mr Eddy: I see.

The Chair: Mr O'Neil, you had a question?

Mr O'Neil: We've got different opinions here. I guess I would ask the Muskoka people to maybe say a few words and maybe yourselves again. I'd also like to ask the ministry, what's the ministry opinion on this?

The Chair: The ministry is scheduled to make comment, but we do have at least one other interested party who wants to come forward, but we can easily direct a question. Mr Black, would you please make some comments in light of Mr O'Neil's question.

Mr Black: If I may, I believe that --

The Chair: We don't all have copies of it, so it's a little hard to see from here.

Mr Hansen: There's a copy in here; you can get an idea.

Mr Black: I believe that following the Public Lands Act amendment in 1960, it was clarified by the Ontario Legislature that the portage as it existed in 1870 and prior was valid. That legislation was expressly retroactive and made it clear that the right of portage on the original route, as shown on Scott's survey, was still valid, and that is still valid today.

Mr Bunker, the Ontario land surveyor who prepared the plans you now have, showed an approximate location. Surveyors like to be right to the quarter of an inch, and he can't really say within five feet, but within five feet you could probably walk that portage today as it was in 1870. What the Indians who originated it many years before that did was pick the best and easiest route between the two lakes. That didn't take a rocket scientist.

When we talked with the Natural Resources people, the land supervisors in years gone by, they said, "We've got to stand by that original route." The only problem was to pin down exactly where it was.

But as I said before, we are not talking about legal title. We are talking about a right of passage over land, and that is not the subject of the court case. In fact -- excuse me, I tend to talk better on my feet -- the town of Gravenhurst, if this bill becomes a statute, is prepared to say to the Beaumaris Fishing Club: "You don't even have to take us to court. We will close that road allowance and convey it to you in accordance with the Municipal Act, subject to the right of passage into Deer Lake."

The portage, if there's any downside to it at all, is that it is discriminatory, because it doesn't allow everybody with a big boat to get in there. It discriminates in favour of the person who's prepared to put a 70- or 80-pound boat on his back and carry it over a forest trail, and I think that is going to really protect the ecology. That is the kind of thing which, if it became necessary, could be incorporated into a bylaw that we've made provision for in section 5. I am in favour of protecting Muskoka and the Muskoka environment as much as anyone else in this room, and I think this bill provides for that. At the same time, it provides for public access to a public water body.

Mr O'Neil: I can see the concerns that are being expressed. You've likely extended that same guarantee to the group that is there, and it doesn't seem to accept that. Or do you?

Mr Walton: This was the first time we've ever heard of anything like that.

Mr O'Neil: So if some of the people, the residents on the lake or the fishing club, have expressed their concerns today, and you're saying that the council of Gravenhurst would agree to incorporating something like this -- I don't want to say give protection, because I also think lakes have to be open, but there have to be some safeguards -- would the group be agreeable to something like this?

Mr Walton: I think we would certainly consider it.

The Chair: That's very good, and at this point --

Mr Walton: I'm not saying we agree with what has been said, because there's been a lot of things said in the past. I think we have to object to this bill. We do have a court case in the legal system here in Ontario, and I think we really do stand on that. If something down the road can be worked out, that's fine, but our present position right now, as Mr Birchall said, is that this is really interfering with our right to appeal the court case that was awarded to us.

Mr O'Neil: Then I'd have to act upon the advice we've received, whether it be the Attorney General's office or whomever, as to where this would stand in case the bill were approved.

Mr Waters: If I might, Madam Chair, when the town first approached me about this bill, because it has been somewhat controversial throughout the Muskoka region, one of the things I said that I wanted to make sure the town had was MNR approval, because it had been my understanding that once a portage, always a portage; that it could never be taken away.

MNR not only gave them the approval but indeed clarified the fact that by moving the portage to something that was easily defined, namely, the road allowance, indeed it would have no objection to that and gave the town its blessing in that respect. So the town has gone to MNR, which is the appropriate ministry, over portages throughout the Muskoka region.

I would hazard to say that there are a number of portages in Muskoka, as elsewhere in the province, where indeed people do pull up on the side of the road or use a railway right of way or whatever to access half or a portion of that portage; that there has been easier access over the years put into the general regions of old, long-time portages, and that people have used modern conveyances to get to a portion of the portage to access remote lakes. It is not uncommon in Muskoka at all.

The Chair: Thank you, Mr Waters, for your clarification. I do want to give the opportunity to Mr Shawn Wilson, who has also indicated an interest, to come before us and make a presentation. I ask Mr Waters if possibly he could move to the side so Mr Wilson could come forward to the table and make his presentation. As you can see, you may be faced with a few questions, which I hope you will be prepared to then answer. Mr Wilson, the time is yours.

Mr Shawn Wilson: Thank you for having me here today. Excuse me if I talk fast. Just yell; I'll slow down a bit.

I have used the portage from Snider's Bay Road to access Deer Lake on several occasions, and I have met caretakers from Beaumaris Fishing Club on that lake several times and told them how I got into the lake. I have no problem with them on the lake at all. They don't bother me; I don't bother them.

I've fished Deer and Pigeon lakes for several years, and over that time have caught and released hundreds of fish. Over the years I may have taken home a total of 10 to eat. It's catch and release. Artificial lures have always been the choice of bait, conscious and careful not to disrupt the ecosystem or the waterway or the natural inhabitants of the lake.


Wildlife is in abundance. Canoeing on the lake has enabled me the pleasure of photographing loon courtship rituals, witness osprey (fish hawks), cormorants, red-tailed hawks and loon offspring rearing, to name a few things.

Accessing Deer Lake and Pigeon Lake has enabled myself and others to benefit from what we all share as a common right as Canadian citizens, something which many countries are not fortunate enough to enjoy -- that is, natural resources, which in my opinion are second to none in all the world, and privileged access to these resources to appreciate, respect and learn from them.

Today I am here to try and confirm the certainty of public access to this waterway and state some concerns. I certainly support the town of Gravenhurst proposal. I think it does two things. I think it enables access by the public and I think it enables protection of the lake by instituting any bylaw which could limit access via the trail to canoes or whatever it would take if abuse in fact did occur. It's not occurring at this point from what I can see, and I'm out there quite often.

I do have a concern, and my concern is that the town does not have the power at this time or in the foreseeable future that would enable it to stop up, lease, license or sell or in any way take away our access to that lake. That's my only concern.

We are all responsible for the health of Canada's natural resources. The ecosystems at Deer Lake and Pigeon Lake are no exception. They are a piece of our total natural resource puzzle. I'm a responsible naturalist and angler and have Deer lake and Pigeon Lake's best interests at heart and hope to continue enjoying them and maintaining their excellent health.

If I may, I have a letter here from the Ministry of Natural Resources, August 2, 1990. Just in contrast to what the fishing club is stating as to abuse and overfishing, the MNR states that, "If an overharvesting of the fish in these lakes is identified, our ministry can apply regulatory controls to reduce that harvest at any time." I certainly would be more than happy, if there was abuse of any such waterway, to contain MNR or take care of it in any way I could to protect the lake.

Basically that's all. Thank you for letting me speak.

The Chair: Thank you, Mr Wilson. Are there any questions of Mr Wilson at this point? Seeing none, I do have to also ask if there are other interested parties who wish at this point to come forward and to make a presentation.

Seeing none, I will advise that in fact members have received copies of two further presentations in writing during the committee hearings today, so that you may avail yourself of reading those and make your decisions in that regard.

Are there any further questions at this time before I turn to Mr Hayes?

Mr Eddy: Yes, Madam Chair. It appears to me that this matter could be negotiated between the town and the fishing club. I'd like to know if the town, having made an offer, as recorded in Hansard, to the fishing club, which is a new offer, I understand -- but if an agreement could be worked out between the two parties, the town and the fishing club, and the viewpoint on that from the town, and also a deferral until the decision is made by the court, how urgent does the town consider this?

The Chair: Mr Black?

Mr Black: The suggestion I made earlier was not a new one. There has been negotiation and suggestion, between the parties, of establishing one route or another, and there have been several ways of getting into these lakes over the years.

When it looked like something was going to proceed, suddenly it died, and when this proposal of a private bill arose, the first thing I did last January, once we had the approval of the MNR, was to write to Mr Walton and tell him exactly what we were planning to do. I have, to this day, received no reply to that letter. The only thing I got was a faxed message dealing with a collateral severance. When the compendium was put together and the application was put together and it was mailed to the legislative clerk, a copy that same day went to the club, and again we've got no reply.

I feel very much like the farmer with the animal whose attention he had to get. It took a piece of cordwood to get the attention. I'm sure you've heard the story. I think we got their attention. But that's the way I feel about it and that's the way the town of Gravenhurst feels. We dearly would love to see this proceed and we do not think that the one matter -- that is, the right of passage -- is interfering in any way with the court case. They are separate issues: legal ownership of land and right of passage over land in accordance with section 44 of the Land Titles Act.

Mr Eddy: Yes, but is the town prepared to put in writing to the club the offer to turn over the road allowance, as you have just stated?

Mr Black: Oh, yes.

Mr Eddy: That's still an offer and you'd be prepared to put that again in writing to the club?

Mr Black: Yes.

Mr Hansen: In respect of the two parties talking about the use of this road allowance or trail, in section 5 of the bill it says, "The town of Gravenhurst may make bylaws respecting the maintenance of the portage trail and the regulation of traffic on it." I think you brought up about a pontoon boat going down there. I think this is the area of negotiating with the municipality to say: "This trail is to be used for this type of travel. It's a backpacking or canoe-carrying area, to go from one lake to another." I think in there there's protection for all parties here.

If there are problems with this road allowance on going from lake to lake, the club could come to the municipality and say, "Hey, when this bill was passed, section 5 -- if we sit down and talk about this, we've got some problems." I would say the town of Gravenhurst is taking a look at keeping the Gravenhurst and Muskoka area looking like it is today without destroying the natural paths running through. I don't see any highway going in or anything else; this is a walking trail.

The Chair: Mr Hayes, I think it's probably appropriate at this point that we hear from you.

Mr Hayes: I think so. Just for the committee's information, the Ministry of Natural Resources has indicated to the Municipal Affairs ministry that it does not have objections to this bill. Also, the Ministry of Municipal Affairs really doesn't have comments on it or is not going to make any recommendations, because it actually does not affect the ministry policy or legislation in Municipal Affairs. In other words, we are not objecting.

Mr O'Neil: Again, really I think it's a concern of everybody. It's a concern of Muskoka, it's a concern of the club, it's a concern of the naturalists that these people, I think all of you, do not want to see this opened up as a 66-foot road allowance with traffic travelling on it or motorcycles or whatever it might be. I'm more or less understanding from the council of Muskoka that it will be maintained as a nature trail and nothing else, not widened for anything else. Is that the understanding?

Mr Black: That is what we very firmly have in mind.

The Chair: Mr Fraser, you indicated you had maybe a final comment to make?

Mr Fraser: I have one --

The Chair: You'll need to get to a mike; you have to get to a mike. Otherwise, you won't appear on Hansard and your words will not be there for all to see.


Mr Fraser: I have only one question. Mr Walton has brought up that they are in litigation. Mr Black has said that under no reason will this affect the litigation of that aspect. At the present moment, you're being asked to extinguish the existing portage and create a new portage. My legal question to the members who are here is, if litigation at a later date does come on the side of one party or the other and you have extinguished the old portage and put the new portage on the road allowance, where does that leave the portage? I'm sorry to raise that fly in the ointment, but I want the portage.

Mr Black: I say it simply leaves it on the road allowance. All we've done is move it from an orange line to a green line, and all we're doing is saying there's a right of passage. We're not concerned with legal title.

The Chair: Any final comments?

Mr Walton: I have to say it just sounds like I'm a little bit defensive, but Mr Black talks about communicating with me. I don't know where that was, and to this day Mr Black never did send us a copy of this bill. We got it from another source. He did not copy us on the bill at all, so we found out about it through other ways. There's been a little, you know, jockeying back and forth. I can understand that, but I did want to set the record straight on that score, that I'm normally responsive when asked.

Mr O'Neil: I noticed Mr Black looking through his correspondence here. Have you a record that there was sent --

Mr Black: I wonder if Mr Walton would look over my shoulder.

The Chair: Mr Black, no. I think there are some of these points -- we could be sitting here through a long day which I prefer that you either dealt with in the hall or in another meeting at another time. You can work out what mailing addresses are appropriate for communication and check with your different secretaries on how communications have flowed between you. I think that really isn't up to this committee to do at this time. Being a librarian in the past, I do understand what mailing lists are about and the fun of maintaining them, but under the circumstances you get my drift.

Mr Birchall, one final comment and then I'm going to, I think, just of necessity call for a vote on this issue.

Mr Birchall: It's really geared to the comment or the question that Mr Fraser raised, which is appended to this bill, and forming part of it is the schedule which creates the portage. The difficulty is that you need to have a schedule for the portage so you know where it's going. While Mr Black has correctly pointed out that a portage is a right of passage and not legal title, presumably the better route, no pun intended, is to have the two parties determine, along with the other owners between Deer Lake and Pine Lake, what the best route would be. Then, if a bill needs to come forward to enshrine that, fine. But the difficulty today is that you have a party before you who has a difficulty with the description of the route because it is, we suggest, part of another proceeding. Thank you.

The Chair: Thank you, Mr Birchall. Any other questions? Mr Eddy?

Mr Eddy: No, I didn't have a question. I had a proposed amendment.

Mr Hansen: The remarks Mr Black has made here is that the fishing club can use those later on, and what you would do as the town of Gravenhurst to ensure the type of travel along that particular route. So if you keep a copy of Hansard, you've always got something to back up.

The Chair: I would ask, seeing no further comments, that we -- Mr Eddy, did you have a --

Mr Eddy: I have an amendment to section 2.

The Chair: Okay, we'll just begin then. Members are prepared for the vote? It looks that way, so shall section 1 carry? And section 2?

Mr Eddy: I move that section 2 of the bill be amended by adding the following subsection:


"(2) Subject to this section and section 3, this act does not affect the title or ownership of any land over which the portage is established."

The Chair: All members have received, I believe, copies of that amendment. Any comments? All those in favour of the amendment? Okay.

All those in favour of section 2 as it has been amended? Agreed.

All those in favour of sections 3 through 7? Agreed.

Shall the preamble carry? Agreed.

Shall the bill carry? Agreed.

Shall I report the bill, as amended, to the House? Agreed.

I thank very much the various witnesses for their participation.


The Chair: We do have one small order of business for the committee and it is called the budget. I hope you have all had a very quick look at it. I understand that our biggest cost will be the printing of some regulations which have accumulated over a period of time from approximately 1989 forward. I guess we have accumulated enough of them to warrant a publication, so that printing budget is possibly a little higher than usual. If there are any other questions or explanations that are required, the clerk and I are prepared to accept your questions.

Mr Cooper: I move that the budget of $20,200 be adopted and be reported to the Board of Internal Economy.

The Chair: Thank you, Mr Cooper. Any other comments or questions? Seeing none, all those in favour of the committee budget as presented? Agreed? Carried.

Thank you very much, gentlemen, and enjoy your lunch. This committee stands adjourned.

The committee adjourned at 1238.